In a decision that delineates the statutory contours of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act), the Bombay High Court has held that the Act does not extend to complaints of sexual harassment made by advocates against fellow practitioners before Bar Councils, as there exists no employer-employee relationship between them.
The petition, instituted as a Public Interest Litigation (PIL) in 2017 by the UNS Women Legal Association, sought a direction to the Bar Council of India (BCI) and the Bar Council of Maharashtra and Goa (BCMG) to establish permanent grievance redressal committees to address complaints of sexual harassment made by women advocates. The plea invoked the Supreme Court’s guidelines in Medha Kotwal Lele v. Union of India and further sought the constitution of a review committee comprising lawyers, NGOs, and retired women judges to examine perceived lacunae in the PoSH Act.
Senior Advocate Milind Sathe, appearing for BCMG, and Advocate Shekhar Jagtap, representing BCI, contended that the PoSH Act predicates its applicability on the existence of an employer-employee relationship. They submitted that advocates are not in such a relationship with the Bar Councils and, hence, the establishment of an Internal Complaints Committee (ICC) within the Councils is outside the statutory mandate. It was also pointed out that the Councils have constituted ICCs for their regular employees, and Local Committees have been set up across districts under the chairmanship of District Magistrates in accordance with Section 6 of the Advocates Act, 1961.
Sathe additionally referred to Section 35 of the Advocates Act, 1961, noting that women advocates have recourse to disciplinary proceedings for professional or other misconduct, including sexual harassment, through complaints before the respective State Bar Councils.
Additional Government Pleader Jyoti Chavan submitted that Local Committees are already in place, further reinforcing that alternate forums for redressal are operational.
The Division Bench comprising Chief Justice Alok Aradhe and Justice Sandeep Marne examined the statutory scheme of the PoSH Act, including provisions relating to the constitution of ICCs and Local Committees. In its ruling, the Court categorically held:
“Thus, it is evident that the provisions of Act apply when there is an employer-employee relationship. Neither the Bar Council of India nor the Bar Council of Maharashtra and Goa can be said to be the employers of advocates ... Thus, the provisions of the POSH Act, 2013 do not apply to advocates.”
The Court clarified that while the PoSH Act does not govern the conduct of advocates inter se, it remains applicable to employees of the Bar Councils or Bar Associations, subject to the statutory threshold of ten or more employees.
The High Court dismissed the PIL, observing that advocates alleging sexual harassment by fellow practitioners are not bereft of remedy. The Court noted that such grievances may be pursued under Section 35 of the Advocates Act, 1961, which enables proceedings for professional or other misconduct before the State Bar Councils. In the absence of an employer-employee relationship, the Court held there was no statutory basis to mandate the constitution of ICCs within the Bar Councils for complaints by advocates.
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