top of page

Reflections on a Kerala High Court’s Judgment on Political Parties and the POSH Act

Women in India remain underrepresented in organised politics, be it as party workers, local leaders, elected representatives, or members of decision-making bodies in parties. In women’s participation in societies, one of the key issues is the ‘continuum of violence’ as discussed by Krause on conflict and post-conflict situations and this violence continuously seeps from public spaces to private spaces and vice versa. This could be in workplaces, public spaces, and homes, apart from systemic injustices.

In this essay, we specifically focus on one such issue that has remained understudied so far - lack of workplace protections in political parties, especially against harassment and violence. A recent judgment by the Kerala High Court (Union of India, 2022) further highlights this issue and underscores the need for comprehensive legal instruments to safeguard women in politics. The case and judgment itself had largely to do with redressal mechanisms against sexual harassment in film, television, and allied activities in Kerala.

In this essay, we specifically focus on one such issue that has remained understudied so far - lack of workplace protections in political parties, especially against harassment and violence. A recent judgment by the Kerala High Court (Union of India, 2022) further highlights this issue and underscores the need for comprehensive legal instruments to safeguard women in politics. The case and judgment itself had largely to do with redressal mechanisms against sexual harassment in film, television, and allied activities in Kerala.

On March 17, 2022, the High Court ruled in a case involving 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 their 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. The State of Kerala opposed the PIL in specifically arguing that political parties are not liable to establish ICCs under this Act. The Court upheld their stand; it held political parties to be under no compulsion to establish an ICC due to the absence of an employer-employee relationship among their members. The Court observed parties are not legal entities but associations of individuals with a common purpose. It noted the POSH Act was enacted to prevent sexual harassment at workplaces; political parties were not workplaces in the traditional sense. This crucial case law has remained uncontested so far.

Extant Protections in the Constitution and Legislations India has various national guarantees in place to penalize gender discrimination, including the Constitution (Art. 14 & 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 Kerala High Court's judgment reinforces this ambiguity, with wider implications for women's safety in politics.

Although cases of sexual harassment within political parties in India are seldom reported, a study by UN Women (2013) revealed the prevalence of sexual harassment in politics, with the most common attack being requests for sexual favors. The absence of similar studies in India and the lack of data collection by the NCRB on gendered violence and discrimination within political party spaces further obscures the issue. The intent of the POSH Act was to consolidate protections against sexual harassment for women in their workplaces or during their course of work. However, the ambiguity on its application to political parties leaves women engaged with or employed by parties without clear safeguards against harassment.

In India, cases of sexual harassment with political parties do not come to light very often and data on formation of an ICC or an alternative mechanism to address complaints within political parties is not public. This further reduces the visibility of prevalence of harassment, misconduct and the lack of accountability of the perpetrators. Despite having a law to ensure fundamental rights of women in the workplace, the Court’s narrow interpretation of the POSH Act pushes women with political careers outside the purview of this law. This remains a missed opportunity for lawmakers and jurists to rethink Article 19 of the Indian Constitution that provides the fundamental right “to practise any profession, or to carry on any occupation, trade or business” which includes right to safe environment free from sexual harassment.

Defining a Workplace The judgment by Kerala High Court (Union of India, 2022) made the formation of ICC non-mandatory for political parties. Without elaborating its reasoning, it notes:

political parties, which are not having any employer-employee relationship with its 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 Committee. (para 67{4})

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 an ICC. While the Court goes into detail about the 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 over the possibility of governing or patron-client structures within parties. Instead the court states there is still a Local Committee that an aggrieved party can go to if the organisation is not liable to have an ICC.

The relevant subsections defining the term ‘workplace’ in Section 2(o) are below:

(i) any department, organization, 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, if and when political parties are understood to be covered by the Act, section 2 defining an aggrieved woman would include women entering politics as party workers, running for office as electoral candidates, party members, or even women visiting a party member in party spaces.

This discussion also highlights the need for examining governance structures and democratic processes within political parties. Section 29A of the Representation of the People (RoP) Act 1951 provides for the registration of political parties in India. In subsequent sections, the act covers how parties can receive donations, nominations, electoral offenses, and more. There is very little about governance and processes in forming a party structure or interactions between party members in the Act. However, the Act states:

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 (Section 29A(5))

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, could be declared as workplaces as defined by the POSH Act. Major political parties have membership of cadre 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. The persons responsible for the management, supervision, and control of the activities of the political parties, the flow of funds and resources, could be deemed to be as an employer for all practical purposes.

Broadening the Definitions of Justice

The exception carved out by the Kerala High Court's judgment 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. Other nations confronted 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 procedure 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.

If not through the POSH Act, there is a need for codification of laws keeping in mind the complex power imbalances within the party. We must account for the incidents of harassment against women within the course of work for a political party. Instead of bringing the political parties under the definition of workplaces, they could be defined as a distinct space with mandated code of conduct; this would cover civil society organisations too which could similarly claim their workers are volunteers and thus not workers. India has more than a thousand political parties and its CSO/NGO sector is among the most extensive in the world per capita. A law is thus an crucial requirement.

A major challenge at hand is infusing the narrative within the Indian political environment that formation of ICC within the political parties is necessary for the party itself. Complaints of sexual harassment of women need to be addressed separately from that of other disciplinary matters. The 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 often result in silencing the victim are present in the relations between a party worker or a candidate to a party boss or higher leadership.

Indian courts have demonstrated a commitment to expanding the scope of gender equality in various other contexts. In Arunkumar v. Inspector General of Registration (2019), the Madras High Court recognised the right of transgender persons to marry under the Hindu Marriage Act, while in Nisha Priya Bhatia v. Union of India (2020), 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. In the past decade, Indian jurisprudence has witnessed significant broadening in the scope of who is defined as a woman, who is considered an adult to be tried for heinous crimes (Juvenile Justice Act 2015), and what is considered sexual harassment. Such a broadening in definitions in the service of justice must also include a redefinition of what constitutes a workplace.

This case study was an attempt to demonstrate the challenges to gender equality in political parties while discussing legal debates on a law made to protect women in workplaces. Though parties can take gender mainstreaming measures and create equal opportunities at their own initiative, the law must catch up in designating them as spaces that are as much of a workplace as other associations and organisations. 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.

The authors would also like to thank volunteers Bini Mishra, Prayashi Goswami, Sreenath A. Khemka, Manwendra Tiwari and Shivank Singh for their contribution to the research of this article.

This article is first published by The Leaflet here.

Sugandha Parmar

Sugandha Parmar

Sugandha is the co-founder and director of Centre for Gender and Politics. She has a background in gender, human rights law and policy. She holds two MA degrees; MA in Women’s Studies from Tata Institute of Social Sciences and MA in Human Right Law from SOAS, University of London. She has worked with non-profits, philanthropy and government departments and is an active member of women and policy initiatives in India. She currently works at Meta.

V Vamsi Viraj

V Vamsi Viraj

V Vamsi Viraj is a policy practitioner and researcher. He has worked for political parties, local NGOs, think-tanks, and writers. He is a recent MPhil graduate of Modern South Asian Studies from the University of Cambridge and volunteers with CGAP in enabling research and dialogues on gender and politics in South Asia.

Follow us on LinkedIn, Twitter, Instagram and subscribe to our website to stay updated.

Our blog is recently ranked by Feedspot as one of the Top 20 Blogs on Women in Politics globally. If you are interested in writing for us, check out these guidelines.


bottom of page