Introduction:

In the case involving a Public Interest Litigation (PIL) filed by the UNS Women Legal Association in 2017 before the Bombay High Court, a division bench comprising Chief Justice Alok Aradhe and Justice Sandeep Marne on Monday emphatically held that the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) do not extend to complaints of sexual harassment filed by female advocates who are members of the Bar Council of India (BCI) or the Bar Council of Maharashtra & Goa (BCMG) against their male advocate counterparts, reasoning that the Act is triggered only when there exists an employer-employee relationship which, in the context of advocates and bar councils, simply does not exist, since neither the BCI nor the BCMG can be construed as employers of independent practicing lawyers enrolled with them, and therefore cannot be obligated to entertain or adjudicate complaints under the POSH Act framework. In their detailed pronouncement, the bench explained that the POSH Act was enacted specifically to protect female employees from harassment within their workplace where the employer has control or supervisory authority, but practicing advocates, being officers of the court and self-employed professionals, are not in any employment relationship with the statutory bar councils, which merely regulate professional standards, issue licenses to practice, and maintain rolls of advocates, but do not exercise control akin to an employer over daily professional activities or conduct of lawyers. Consequently, the judges ruled that any invocation of the POSH Act provisions against bar councils to set up internal complaints committees (ICCs) for the benefit of female advocates would stretch the legislative intent of the Act beyond its express scope, leading to a misapplication of the law. The PIL had been filed by the UNS Women Legal Association with a prayer seeking directions to mandate the BCI and BCMG to establish permanent grievance redressal mechanisms in the nature of ICCs to address sexual harassment complaints by female advocates practicing in courts, arguing that the absence of formal redressal bodies exposes women lawyers to a hostile work environment and denies them a safe professional space, which is essential for ensuring equality, dignity, and non-discrimination guaranteed under Articles 14, 15, and 21 of the Constitution.

Arguments:

The petitioners contended that the profession of advocacy, like any other workplace, is susceptible to sexual harassment risks, and the unique power dynamics in courtrooms and legal practice necessitate a robust institutional mechanism to deal with harassment complaints swiftly, fairly, and effectively, especially considering the hierarchical nature of legal practice where junior female lawyers can be particularly vulnerable to advances, intimidation, or retaliation by senior male colleagues or opposing counsel. The petitioners urged the High Court to adopt an expansive interpretation of the POSH Act in light of its purpose of ensuring safe workplaces for women, asserting that the legal profession should not be allowed to fall outside the protective umbrella of the statute merely because of technical arguments around employer-employee definitions, as such exclusion would defeat the very object of the legislation.

On the other hand, the respondents, including the BCI and BCMG, argued through senior counsel that the POSH Act, by its design and express provisions, applies only in cases where there is a discernible employment relationship giving rise to duties of care, prevention, and redressal on the part of the employer towards employees, which is clearly absent in the case of independent legal practitioners who are regulated by statutory bodies but do not work for them in any capacity comparable to employment. They submitted that imposing POSH Act obligations on bar councils would not only be legally untenable but practically unworkable, as bar councils neither assign work to practicing advocates nor have control over court premises where most interactions among advocates occur. The respondents further asserted that the Advocates Act, 1961 already provides a comprehensive disciplinary mechanism under Section 35 empowering state bar councils to initiate proceedings against advocates guilty of professional or other misconduct, including harassment, with the potential consequence of suspension or removal from the roll of advocates, which offers an effective statutory remedy for grievances, including those related to sexual misconduct, without the need to stretch the POSH Act’s applicability.

Judgement:

After hearing the detailed submissions of both sides, the bench recorded in its order that the essential precondition for the application of the POSH Act—namely, the existence of an employer-employee relationship—was conspicuously absent in the case of advocates vis-à-vis bar councils, since neither BCI nor BCMG could be said to employ lawyers, nor do they have the kind of control expected of employers over the day-to-day professional conduct of advocates. The bench clarified that while the POSH Act’s provisions will not apply to complaints between advocates, they would certainly apply to complaints filed by or against actual employees of the BCI or BCMG, such as staff members, clerks, or committee employees working directly under the councils, for whom the councils are clearly employers. Significantly, the bench emphasized that female advocates facing misconduct, including sexual harassment, are not without remedy, as they can invoke Section 35 of the Advocates Act to file complaints before the state bar council seeking disciplinary action against any lawyer whose conduct amounts to professional or other misconduct, which encompasses harassment and related inappropriate behavior, thereby ensuring that such misconduct can still be effectively addressed even outside the POSH Act framework. The judges also cautioned that conflating the statutory roles of professional regulatory bodies with the obligations of employers under the POSH Act could lead to confusion and practical difficulties in enforcing professional standards and undermine the integrity of both statutes, each of which has its own purpose and sphere of operation. Accordingly, the bench dismissed the PIL filed by the UNS Women Legal Association seeking the application of the POSH Act to complaints by female advocates, while reaffirming that complaints against sexual misconduct by male advocates can and should be dealt with through the disciplinary jurisdiction under the Advocates Act. The detailed copy of the judgment is awaited and will provide further clarity on the reasoning adopted by the bench in arriving at its conclusion.