The author seeks to highlight the barriers to gender equality in the political arena while exploring legal debates around a statute designed to safeguard women in the workplace by reflecting on the Kerala High Court's verdict on the application of the POSH Act to political parties.
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IN India, women remain underrepresented in organised politics, be it as party workers, local leaders, elected representatives, or members of decision-making bodies in parties.
One of the key issues in women's participation in societies is the "continuum of violence" in conflict and post-conflict situations.
This violence continuously seeps from public spaces to private spaces and vice versa. It exists in workplaces, public spaces and at homes over and above systemic injustices.
Political parties are not immune to this continuum of violence, therefore the lack of workplace protections in political parties, especially when it comes to harassment and violence against women, is an issue that deserves an in-depth examination.
A recent judgment by the Kerala High Court highlights this issue and underscores the need for legal instruments to safeguard women in politics.
The case and the judgment are majorly concerned with inefficient redress mechanisms against sexual harassment in film, television and allied industries in Kerala.
The parties to the case are the Centre for Constitutional Rights Research and Advocacy (CCRRA) and the state of Kerala.
The CCRRA had filed a Public Interest Litigation (PIL) seeking directions to establish an Internal Complaints Committee (ICC) within political parties under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereby POSH Act) and the Vishakha guidelines of the Supreme Court.
“This case remains a missed opportunity for lawmakers and jurists to realise Article 19 of the Indian Constitution in its truest sense.
The Kerala government opposed the PIL by specifically arguing that political parties are not liable to establish ICCs under the POSH Act.
Agreeing with the state government's stand, the court held that political parties are under no compulsion to establish an ICC due to absence of an employer–employee relationship among their members.
The court further observed that political parties are not legal entities but are merely associations of individuals with a common purpose.
So far, this worrisome court ruling has gone unchallenged.
India has various national guarantees in place to penalise gender discrimination, including the Constitution's Article 14 and 15, the POSH Act, Criminal Law (Amendment) Act, 2013, Indecent Representation of Women (Prohibition) Act, 1986, and the Information Technology Act, 2000.
While the POSH Act specifically addresses sexual harassment at the workplace, its ambiguous application to political parties leaves women vulnerable to harassment and discrimination in political spaces.
The high court's judgment reinforces this ambiguity, with wider implications for women's safety in politics.
Also read: A decade after its enactment, SC issues directions to ensure better implementation of the PoSH Act
Although cases of sexual harassment within political parties in India are seldom reported, a 2013 study by UN Women revealed the prevalence of sexual harassment in politics, with the most common attack being requests for sexual favours.
Data on formation of ICCs or an alternative mechanism to address complaints within political parties is not made public
The absence of similar studies in India and the lack of data collection by the National Crime Records Bureau on gendered violence and discrimination within the spaces of political parties further obscures the issue.
“The exception carved out in the judgment leaves a substantial number of women bereft of the right to a secure and dignified workplace.
This remains a missed opportunity for lawmakers and jurists to realise Article 19 of the Indian Constitution in its truest sense by providing women the right to a safe work environment free from sexual harassment which essentially forms part of their fundamental right to profession.
Without elaborating its reasoning in the aforementioned case, the court made the formation of ICCs non-mandatory for political parties.
It notes: "Political parties, which are not having any employer–employee relationship with [their] members and which are not carrying on with any private venture, undertaking, enterprises, institution, establishment, etc., in contemplation of a 'workplace' as defined under Section 2(o)(ii) of Act, 2013, are not liable to make any Internal Complaints Committees."
It is important to note that among the film, television and other activities under question, only political organisations were kept out of the mandate to maintain ICCs.
While the court goes into details about aspects of employer–employee relationship within film, television and allied activities, there is little discussion about political organisations as a whole or the respondents who were all national parties.
The court does not explore or explain the relationship between party workers and party leaders.
There is no discussion on the hierarchy or possibility of patron–client structures within political parties.
Instead, the court stated that there is still a 'local committee' that an aggrieved party can go to if the organisation is not liable to have an ICC.
Workplace is defined under Section 2(o) as follows:
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate government or the local authority or a government company or a corporation or a co-operative society;
(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
(vi) a dwelling place or a house.
Ideally, going by a plain reading of the Section, political parties should fall within the ambit of the Act and an "aggrieved woman" as defined under Section 2 should include any women entering politics as party workers, running for office as electoral candidates, party members or even women visiting a party member in party spaces.
“Sexual harassment must be seen as a systemic issue, and not as a matter of a few aberrant individuals.
Also read: Supreme Court's directions on enforcement of PoSH Act ring hollow for India's informal sector
This discussion also highlights the need for examining governance structures and democratic processes within political parties.
Section 29A of the Representation of the People Act, 1951 provides for the registration of political parties in India. In subsequent Sections, the Act covers how parties can receive donations, nominations, electoral offences, and more.
There is very little discussion on governance and processes in forming a party structure or interactions between party members in the Act.
However, Section 29A(5) of the Act states that "memorandum of rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the constitution of India as by law established, and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India."
This may be interpreted as providing scope for party processes, structures and party governance to ensure fundamental rights of people within the political party.
For women to participate freely in our country's political process, the political parties must be held accountable for gender discrimination within their spaces.
In furtherance of this, political parties, the ones registered with the Election Commission, should be declared as workplaces as defined by the POSH Act.
Major political parties have membership in the thousands. Though they cannot strictly be deemed as employees, there has been a well-established body of research in political science about the kind of patron–client relationships and power imbalances that exist between the leadership and those below, all the way down to the village level.
Given the existing power imbalance, persons responsible for the management, supervision and control of the activities of the political parties, the flow of funds and resources, namely those in leadership positions, should be deemed to be an employer for all practical purposes.
The exception carved out by the Kerala High Court is particularly disconcerting because it leaves a substantial number of women bereft of the right to a secure and dignified workplace, effectively granting immunity to those guilty of sexual harassment within political parties.
“Overlooking sexual harassment in the realm of politics can have profound consequences, not just for gender equality but for policy matters, political accountability and wider democratic processes.
Other nations have effectively addressed analogous issues in tackling sexual harassment within political parties. For instance, the United Kingdom's Equality Act, 2010 mandates that political parties establish a complaints redress mechanism to address sexual harassment and other forms of discrimination.
In Kenya, the Political Parties Act, 2011 provides for the creation of a code of conduct for political parties, encompassing provisions aimed at preventing sexual harassment and discrimination.
In India also, there is an urgent need to address the issue of harassment within the course of work of political parties. If not through the POSH Act, there is a need for codification of laws keeping in mind the complex power imbalances within the party.
Instead of bringing political parties under the definition of workplace, they could be defined as a distinct space with mandated code of conduct; this would cover civil society organisations (CSO) too which could potentially raise similar impunity claiming their workers to be volunteers and not workers.
India has more than a thousand political parties and its CSO sector is among the most extensive in the world per capita.
A major challenge at hand is infusing the narrative within the Indian political environment that formation of ICCs within political parties is necessary for the parties themselves.
Complaints of sexual harassment by women need to be addressed separately from that of other disciplinary matters.
Political parties cannot address the question of gender discrimination by treating all the complaints of sexual harassment within the party or by a party member through disciplinary proceedings only.
The power dynamics that exist between a party worker or a candidate to a party boss or higher leadership often results in silencing of the victim.
In Nisha Priya Bhatia versus Union of India, the Central Administrative Tribunal held that an ICC's decision on a sexual harassment complaint could not be interfered with by the employer without proper justification.
Sexual harassment must be seen as a systemic issue, and not as a matter of a few aberrant individuals.
Overlooking sexual harassment in the realm of organised politics and political parties can have profound consequences, not just for gender equality but for policy matters, political accountability and wider democratic processes.
Note: The authors would also like to thank volunteers Bini Mishra, Prayashi Goswami, Sreenath A. Khemka, Manwendra Tiwari and Shivank Singh for their contribution in research of this article.