Can POSH Act be applied to political parties? | Breaking news

The POSH Act requires both public and private workplaces to set up an Internal Complaints Committee (ICC) to hear complaints of sexual harassment. The controversial petition claims that when it comes to political parties “the presence of Internal Complaints Committees (ICCs) to address sexual harassment is inconsistent”.

The case has sparked a conversation about how the POSH Act applies – if at all – to organizations such as political parties, which often lack traditional workplace structures.

To whom does the POSH Act apply?

Section 3(1) of the POS Act states that “No woman shall be subjected to sexual harassment in the workplace”. This immediately tells us how the POSH Act applies — in the workplace, and only if the aggrieved party is a woman.

The definition of “workplace” in the POSH Act is broad. It includes public sector organizations, institutions and similar private sector institutions, hospitals, nursing, etc. “established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate government”. Also includes homes, sports venues, homes, and places visited by the employee “in the course of employment.”

However, the possibility of applying this law to political parties is dim. Prior to the filing of the present PIL in the SC, the Kerala High Court has addressed this question only once when it decided in the case of Center for State Constitutional Rights Research and Advocacy in Kerala and Ors (2022). The court heard several petitions seeking the establishment of an ICC in television, film, news, and political organizations – including the BJP and the Congress.

On the subject of political parties, the court held that there is no “employer-employee relationship with its members” and political parties do not operate in contemplation of “any private enterprise, enterprise, enterprise, institution, establishment etc.” Workplace’ (under the POSH Act)”. Thus, the court held that political parties “are not liable to constitute an internal grievance committee”.

Can POSH Act be applied to political parties?

The Representation of the People Act, 1951 (RP Act) regulates the registration of political parties. Under Section 29A “any association or body of individual citizens of India calling themselves a political party” shall apply for registration with the ECI. In this application, details such as the name of the party, the state where the head office is located, the name of the office bearer, the details of the local units, the number of members, etc. should be provided.

The application should also include a memorandum of rules and regulations, and a provision that the party “has true faith and allegiance to the Constitution of India”. However, the POSH Act hangs its hat on protecting women from sexual harassment in the “workplace”, which can be difficult for political parties to determine.

For example, party workers who work within parties often have little interaction with high-level officials and are hired temporarily to work in the field without a defined “workplace.” Further, if the court or the ECI decides to apply the POSH Act to political parties, it will have to clarify who is the “employer” in the context of the political party as the employer is responsible for setting up the ICC. Incidents of sexual harassment in the workplace.

That said, the term “workplace” under the POSH Act includes places visited by an employee “in the course of employment” which may allow the protection of the Act to be extended to party workers in the field. The POSH Act also provides a detailed definition for the term “employee”, and includes persons employed temporarily, contract-workers, or volunteers “with or without the knowledge of the principal employer”.

Furthermore, party constitutions often provide organizational hierarchies that can help determine who will be the “employer”. For example the BJP ‘Constitution and Rules’ details a seven-level organizational structure starting from local committees to the national level, with a detailed list of members and office bearers at each level.

Now the parties are maintaining internal discipline through their committees. The Constitution and Rules of Congress, for example, create a hierarchy of committees and allow higher-level committees to take action against individual members of committees and subordinates. The BJP constitution establishes “Disciplinary Action Committees” at the national and state levels.

Both constitutions list acts that are considered “breach of discipline”. But sexual harassment can only fall under one of the broad headings such as “acting in a manner calculated to bring down the reputation of the party” (BJP with similar violations listed in the Congress constitution) or “being guilty of crimes involving morals”. turpitude…” (Congress Constitution). These committees are not required to have women or external members as required by the ICC under the POSH Act.

What is ECI’s position on making political parties comply with other laws?

The ECI derives its powers from Article 324 of the Constitution, which gives it the power to supervise, direct and control elections to Parliament, State Legislatures, the Office of the President and the Office of the Vice President. These powers have been further strengthened by the RP Act.

While its role is clearly defined in the RP Act, when it comes to other laws, it is not well defined. For example, the Central Information Commission (CIC) ruled in 2013 that the Right to Information Act, 2005 also applies to political parties. Since then, a petition has been filed in the Supreme Court to instruct the parties to appoint Public Information Officers. But the parties are yet to do so.

Which leaves the question how ECI is handling this issue? For its part, the ECI has followed the orders of the CIC. In a press release on May 28, 2018, the ECI said “The Election Commission of India observes that the CIC’s order dated June 3, 2013 states that national parties shall be public authorities for the purposes of the RTI Act and all Information. Contributions received by them and their annual audited accounts, are placed in the public domain when submitted to the Commission.”

The ECI also adopts the approach of issuing advisory to the parties in furtherance of other laws. For example, under the Child Labor (Prohibition and Regulation) Act, 1986, the ECI directed parties not to engage children in campaigning ahead of the 2024 Lok Sabha elections.