PoSH, Politics, and Purposivism: A Critique of the Supreme Court’s Stance on the PoSH Act

*Shashank Tripathi

INTRODUCTION

On 1 August 2025, the Supreme Court of India (“SC”) refused to entertain a writ petition seeking the application of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“PoSH Act”) to political parties, citing its lack of legislative capacity. The SC cited the absence of an employer-employee relationship in political parties and denied the applicability of the PoSH Act. This judicial stance, however, overlooks the constitutional dilemma of whether the application of the PoSH Act to political parties is a matter of judicial interpretation or legislative competence, a dilemma which can be effectively analyzed through Amartya Sen’s ‘capabilities as justice’ approach.

Amartya Sen’s equality framework on gender justice (or social justice) hinges on the state creating capabilities for women to do or be what they prefer. However, Sen argues that women exhibit “adaptive preferences” in exercising choices as an outcome of their historical relegation to the second-class status; accordingly, in India’s democratic process, women’s participation in electoral politics, either as voters or representatives, suffers an intersectional challenge of overcoming lack of existing women representation in decision-making positions and absence of requisite capability creation by the state to ensure increased participation. Scholars, in their attempts to identify actionable capabilities, have consistently recognized the primacy of adequate working conditions in enhancing women’s workforce participation.

Relying on Sen’s ‘capabilities as justice’ approach, I argue that the SC overlooked the correlation between sexual violence and the political participation of women. Consequently, I criticize the SC’s reluctance to entertain the writ, and argue that not only principles of statutory interpretation, but also the precedents enabled the court to read the applicability of the PoSH Act to political parties.

GENDER-JUSTICE IN POLITICS

Equality for Sen lies not in the guarantee of formal access to political participation, but in the award of the ability to actualize the political will. He argues that mere award of an equality framework (under Article 14) does not imply awarding the capability to achieve the “functionality” of equality. Though not explicitly quoted, the SC in Vishakha v. State of Rajasthan invoked what could be considered a precedent of Sen’s approach when it held, “The fundamental right to carry on any occupation, trade or profession depends on the availability of a 'safe' working environment…primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature.” Therefore, the Vishakha guidelines, which were succeeded by the PoSH Act, were an attempt at creating requisite faculties/capabilities for the effective realisation of the rights under Articles 14, 19, and 21 of the Indian Constitution.

Intuitively, women's participation in politics is often influenced by similar capabilities or the lack thereof. Studies reveal, for instance, that sexual violence against women is a significant deterrent to women’s liberty to move freely, and women modify their lifestyle choices to reduce the risk of violence. The study on the correlation between women’s workforce participation and sexual crimes indicates a decline in women’s labor supply of about 9.4% for each additional crime per ten thousand women. As the SC observed in Vishaka, “It is discriminatory … when the woman has reasonable grounds to believe that her objection [to sexual harassment] would disadvantage her in connection with her employment or work, including recruiting or promotion, or when it creates a hostile work environment.” 

Political parties are not appendages, but the centre of the government; the creation of the chain of democratic processes is their raison d’être. Given their centrality in shaping democratic discourses, it is almost a sacrosanct imperative to ensure gender justice within political parties. The 73rd and 74th Constitutional Amendments to the Constitution provided a firm footing for the democratic commitment to increasing women's participation in local politics. However, the U.N. study on ‘Violence against Women in Politics’ testifies to the interrelation between violence and political participation; almost 90% of women feel that violence breaks their resolve to join politics. In Sen’s approach, the Constitutional Amendments as well as statutory freedoms awarded to women are mere formal access that do not reflect their functional manifestation within politics due to the absence of a requisite framework creating the capability for addressing violence.

It has been established that (sexual) violence affects women’s participation in politics, and thus, requires more than constitutional promises of equality in a formal sense. It may be fair to ask whether the judiciary is competent to create such capability through an expansive and liberal reading of the PoSH Act.

MAPPING THE JUDICIAL TREND

The Vishaka judgment is a milestone of purposive stepping in of the judiciary to fill the legislative and executive vacuum in preventing sexual harassment at the workplace. The SC categorically reasoned that when the legislature and executive “fail in their duties, and a vacuum is created,” the court has to step in to protect the fundamental rights of the citizens. Thus, the promulgation of the guidelines established a constitutional precedent whereby the SC awarded itself the power to issue necessary guidelines for the true realisation of fundamental rights. Similarly, in the R.G. Kar Medical College rape case, the SC took suo moto cognizance to issue a slew of guidelines and the formation of a task force to develop protocols for the safety of medical professionals, despite the existing penal laws in operation. This reflects the constitutional norm developed by the SC, in line with the constitutional intent, to use its powers (under Ar. 32 and Ar. 142) in a manner suitable for the realisation of fundamental rights in the widest terms possible.

This is in addition to the shift in interpretation rules adopted by the courts in various welfare litigations. In Dr. Sohail Malik v. UoI, the SC recognized the PoSH Act as an “ameliorative social welfare legislation” that warranted a shift from intentionalism to purposivism in its interpretation and application. The court recognized that the PoSH Act is in furtherance of the constitutional imperative to prohibit sex-based discrimination, and thus, the literal rule of interpretation would defeat both the constitutional and statutory objective of the Act. Applying the purposive approach, the courts have upheld the application of the PoSH Act to women as “respondents”, digital spaces as “workplace”, and independent contractors as “employees”, the list being an indicator of time and context-responsive application.  

Immunity of the Political Parties

The Kerala High Court in CCRRA v. State of Kerala & Ors. (2022) held that political parties do not have an employee-employer relationship with their members, and do not operate in accordance with the definition of the “workplace” under S. 2(o) of the PoSH Act; thus, they are not bound to form an Internal Complaints Committee (“ICC”) as postulated under the Act. The SC seems to reaffirm the Kerala High Court’s stance to defend the immunity of political parties while shifting the baton to the legislature to determine the applicability. 

In light of the precedents calling for a purposive approach in interpreting the application of the Act, an analysis of necessary definitions counters the existing stance of the courts. The Bombay High Court in Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University (2013) held, “the entire Act needs to be viewed as a net cast by the Parliament to cover as many establishments as possible.” As opposed to invoking the employer-employee relationship stricto sensu, the Court held that these two terms are like springs that possess the quality of being stretched or compressed to further the object of the legislation. The absence of legislative intent for a strict reading of the relationship between employer and employee may be deduced from the comparison of definitions of an “employee” under the labour laws, wherein express employment for a fixed purpose is a requisite, and PoSH Act that includes a person working “whether for remuneration or not, or working on a voluntary basis or otherwise.” The inclusion of voluntary involvement with an establishment that may or may not entail remuneration indicates a wide scope of applicability, including that to political parties that customarily operate on voluntary participation without necessary remuneration. Similarly, the definition of “employer” under the PoSH Act includes any person, board, or committee that is “responsible for the formulation and administration of polices for such organisation.” The inclusion of domestic workers within the definition further cements the intent of an expansive definition that attempts to encompass every avenue of social organisation where a fiduciary, monetary, or any other relationship is formed.

Section 2(o) of the PoSH Act defines “workplace” as any public or private organization engaged in “commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service.” The definition goes on to include medical establishments, sports establishments, the unorganised sector, and a dwelling house as a workplace, indicating a similarly wide construction of the definition. Even if interpreted strictly, given the organization of parties in India into different units, cells, and offices that carry out various tasks, and recruitment drives for party cadres, political parties would figure into the definition, which otherwise has to be interpreted widely. While the parties usually do not have a statutorily provided structural metric which could lead to a lack of homogenous organisational structures across the parties, the Representation of the People Act, 1951, under Section 29A provides that “memorandum of rules and regulations” of the political parties shall contain a specific provision that the “body shall bear true faith and allegiance to the constitution of India as by law established.” Thus, while the Act does not recognise political parties as organised bodies, it is implicit that the creation of party structures, processes, and organization must entail constitutional morality. 

The modern party system in India reflects a strong organizational bias wherein several parties have associated a defined party organization with favourable electoral outcomes; thus, in foresight, the party system is moving towards a more organized structure while also employing private partners, analysts, and advisors in the process for gaining populist advantages. In such a backdrop, the SC is neither restricted by the PoSH Act nor the precedents of interpretation in expanding the applicability of the Act to political parties.

SYNTHESIS

Former Chief Justice of India, Dr. D.Y. Chandrachud, in his analysis of a responsive judiciary, wrote, “A thicker conception of judicial review is critical, not only for the protection of discrete and insular minorities but also for marginalised groups in exclusionary spaces, such as women in the workforce.” The reluctance of political parties to nominate women as electoral candidates is a force aggravated by persistent violence against women in political spaces, making the space largely exclusionary and non-conducive for equal opportunity. In such a situation, the onus of capability creation falls upon the judiciary, not only because reduced capability hardly catalyses the political and legislative will, but also because the PoSH Act and the precedents allow the SC to ensure true realisation of gender justice. Sen’s emphasis on securing equality through processes is in line with the judiciary’s award of eminence to the purposive application of the Act. Whether the failure of SC to recognize its obligation is a constitutional blunder or a mischief will be revealed with time.

Shashank Tripathi is a final-year law undergraduate at the Rajiv Gandhi National University of Law, Patiala.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog