Does POSH Act apply to political parties

Context: The Supreme Court last week heard a PIL stating that the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(POSH Act) should apply to political parties. The apex court directed the
petitioner to approach the Election Committee of India (ECI) first, as they are
the competent authority “to prevail upon recognised political parties for
creation of an in-house mechanism to deal with complaints of sexual harassment”
in a way consistent with provisions of the POSH Act. The petition sought a
judicial declaration that political parties are bound to comply with the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 or PoSH Act, including the formation of an Internal Complaints Committee
(ICC).

Key points

·      
Overview: The SC found “serious
lapses” and “uncertainty” in the implementation of the PoSH Act 2013 and issued
directions to the Union, States, and UTs to verify if all government bodies had
formed the Internal Complaint Committees (ICCs).

·      
Petitioner's Arguments: According to
the petitioner, lack of transparency within political parties, inadequate
structure and inconsistent implementation of the internal complaints committee
foster a culture that fails to prioritise the safety and empowerment of women.

·      
Supreme Court judgment: The Supreme
Court cited a Kerala High Court judgment which held that political parties have
no obligation to comply with the PoSH Act as there is no employer-employee
relationship between them.

·      
PoSH Act: In 1992, Bhanwari Devi, a
social worker with the Rajasthan government’s Women Development Project, was
gang-raped by five men when she tried to prevent the marriage of a one-year-old
girl. Hearing petitions regarding the gang-rape of a social worker in Rajasthan
in 1992, the Supreme Court laid down a set of guidelines in 1997 against
‘sexual harassment at workplaces’ in the absence of any law ‘enacted for the
effective enforcement of the basic human right of gender equality’.

The PoSH Bill - It was introduced by the
Women and Child Development Ministry in 2007. It went through several
amendments and came into force on December 9, 2013, after being enacted by the
Parliament.

·      
Provisions of the PoSH Act: Defines sexual
harassment as to include unwelcome acts such as physical, verbal/non-verbal
conduct - a demand or request for sexual favours, making sexually coloured
remarks, showing pornography, etc.

Lists down five circumstances that would constitute sexual harassment –

Ø  Implied or explicit
promise of preferential treatment in employment.

Ø  Implied or
explicit threat of detrimental treatment in employment.

Ø  Implied or
explicit threat about present or future employment status.

Ø  Interference
with work or creating an intimidating or offensive or hostile work environment.

Ø  Humiliating
treatment is likely to affect health or safety.

Defines an employee (not just in accordance with the
company law) - All women employees, whether employed regularly, temporarily,
contractually, on an ad hoc or daily wage basis, as apprentices or interns, can
seek redressal to sexual harassment in the workplace.

Expands the
definition of ‘workplace’ - Beyond traditional offices to include all kinds of
organisations across sectors, even non-traditional workplaces (for example,
telecommuting) and places visited by employees for work.

·      
Internal Complaints Committee (ICC) and
Local Committees (LC): The law requires any employer with more than 10
employees to form an ICC, where a formal sexual harassment complaint can be
filed by a woman. Besides, the Act mandates every district in the country to
create a LC to receive complaints from women working in firms with less than 10
employees and from the informal sector, including domestic workers, etc.

·      
Challenges to the Act: Lacunae in
the constitution of ICCs - 16 out of the 30 national sports federations in
the country had not constituted an ICC to date.

Improper composition of ICCs - ICCs either had
an inadequate number of members or lacked a mandatory external member.

Lack of clarity in the law - About how to
conduct such inquiries, lack of awareness in women employees about who to
approach in case of facing harassment, etc.

·      
Way Forward: Investigations
conducted by ICC or LC should follow the principles of ‘natural justice’ like
the judiciary. The Supreme Court through its various judgments has directed the
bodies to publish the details of their respective committees on their websites.