Implementation of PoSH Act on Political Parties

Reference:

The Supreme Court bench has asked the petitioner, who has sought implementation of the law related to Prevention of Sexual Harassment of Women at Workplace (PoSH) in political parties, to approach the Election Commission of India.

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Petitioner's Arguments:

• 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.
• 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.
• This reflects a broader challenge where women face multiple barriers and violence in performing political roles.
• The petition seeks extraordinary jurisdiction of the court to enforce fundamental rights by invoking Article 32 and seeks to ensure that respondents (such as political parties or relevant authorities) take necessary action.

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.
• According to the judge, the Election Commission is the competent authority in the case of political parties and advised the petitioner to approach the poll body.

What is PoSH Act:

Background: 

• 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’.
  • This was named the Vishaka Guidelines, which were intended to fill the legislative void until a definite and clear law was enacted.
• The Vishaka Guidelines were to be strictly followed in all workplaces and were legally binding.
• The Court drew inspiration from Article 15 (against discrimination on grounds only of religion, race, caste, sex and place of birth) and relevant international conventions and norms, such as the general recommendations of the Convention on the Elimination of All Forms of Discrimination against Women.
  • India ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1993.
• The National Commission for Women submitted draft codes of conduct for the workplace in 2000, 2003, 2004, 2006 and 2010.
• In 2007, the then Minister of Women and Child Development, Krishna Tirath, introduced the Protection of Women against Sexual Harassment at Workplace Bill. The amended bill came into force on 9 December 2013 as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or PoSH Act. 
  

Definition of Sexual Harassment, Workplace and Employee under PoSH Act:

• The PoSH Act defines sexual harassment as unwelcome acts such as physical contact and sexual advances, demand or request for sexual favours, making sexually inappropriate remarks, showing pornography and any other physical, verbal or non-verbal conduct of a sexual nature.
• It also lists five circumstances (acts) with respect to sexual harassment-
  • Implied or explicit promise of preferential treatment in employment
  • Implied or explicit threat of detrimental treatment in employment
  • Implied or explicit threat regarding present or future employment status
  • Creating an intimidating or offensive or hostile work environment or interfering with work
  • Humiliating behaviour likely to affect health or safety
• Under this Act, all women employees, whether employed on regular, temporary, contractual, ad-hoc or daily wage basis, as apprentice or trainee or otherwise without the knowledge of the principal employer, can seek redressal of sexual harassment at workplace.
• The Act expands the definition of ‘workplace’ beyond traditional offices to include all types of organisations across all sectors, even non-traditional workplaces (for example those that involve telecommuting) and places employees travel to for work.
  • It applies to all public and private sector organisations across India.

Provisions for employers:

• The law requires any employer with more than 10 employees to set up an Internal Complaints Committee (ICC).
  • This is the committee any female employee can approach to lodge a formal sexual harassment complaint.
• The ICC should be headed by a woman. It should consist of at least two women employees and one other employee.
  • It should include a third party such as an NGO worker with five years of experience familiar with the challenges of sexual harassment to prevent any undue pressure from senior levels.
• The Act mandates every district in the country to form a Local Committee (LC) to receive complaints from women employed in firms with less than 10 employees and from informal sector domestic workers, home-based workers, voluntary government social workers, etc.
• The employer has to file an annual audit report with the District Officer about the number of sexual harassment complaints lodged and action taken at the end of the year.
• The Act also mandates the employer to organize regular workshops and awareness programmes to educate employees about the Act and to organize seminars for ICC members.
• If the employer fails to constitute an ICC or does not comply with any other provision, he will have to pay a fine of up to ₹50,000.

Barriers to implementation of the Act:

Lack of formation of internal committee:

According to some studies, most of the institutions have not constituted ICC. Where ICC was set up, it either had inadequate number of members or lacked the mandatory external member.

Lack of accountability:

• According to legal experts and stakeholders, the Act does not address accountability satisfactorily.
  • It does not mention clear provisions for ensuring compliance of the Act at workplaces and fixing accountability in case of non-compliance.
  •  The government told Parliament in the year 2019 that it did not have any centralized data available on cases of harassment of women at workplaces.
• Despite over 80% of India’s women workers being employed in the informal sector, cases of sexual harassment at workplaces are highly underreported in India for several reasons.
• Lawmakers had recognised that complaints could be addressed more effectively within civic institutions (workplaces) so that women need not go through the arduous processes of the criminal justice system related to access and timeliness.
  • However, there is a lack of clarity in this context.
• Lack of awareness about such committees among women employees further aggravates the access barriers related to the justice system.
• Power dynamics in organisations and fear of professional consequences also act as deterrents for women from filing complaints.
•  Sexual harassment cases often lack concrete evidence (evidence) while the judicial system relies more on evidence.

Way Forward

• Investigations conducted by ICC or LC should follow the principles of ‘natural justice’ like the judiciary.
• The due process requirement for the internal committee should be different from that employed by the legal system, as per the stakeholders as well as the Competent Committee Report (2010), taking into account the nature of sexual harassment as a form of gender discrimination since women are disproportionately affected in patriarchal systems.
• The Supreme Court directed the Centre, States and Union Territories to verify in a time-bound manner whether the Ministries, Departments, Government organisations, Authorities, Public Sector Undertakings, Institutions, Bodies etc. have constituted Internal Complaints Committees (ICCs), Local Committees (LCs) and Internal Committees (ICs) under the Act.
•  The Supreme Court through its various judgments has directed the bodies to publish the details of their respective committees on their websites.