Lawyers not employees: Court says POSH Act not applicable for Bar Council staff

The Bombay High Court on Monday clarified that the Bar Council of India (BCI) and the Bar Council of Maharashtra and Goa (BCMG) are not obligated to form Internal Complaints Committees (ICCs) as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act) as they do not have an employer-employee relationship with practising advocates.

The bench, comprising Chief Justice Alok Aradhe and Justice Sandeep Marne, explained that the POSH Act is applicable only in contexts where there is a clear employer-employee relationship. They concluded that because bar councils do not employ the advocates who practice under them, the Act does not apply to complaints lodged against fellow advocates.

In response to a Public Interest Litigation (PIL) filed by the "UNS Women Legal Association," the bench emphasised that the Advocates Act still provides remedies for professional misconduct, including harassment.

"Section 35 of the Advocates Act provides action against any kind of professional or other misconduct by lawyers. This is a remedy available for lady lawyers to file complaints against any kind of harassment which may amount to professional or other misconduct," the bench noted.

The PIL sought the creation of permanent grievance redressal mechanisms specifically for sexual harassment complaints against lawyers. However, the court's ruling indicates that existing legal frameworks under the Advocates Act should suffice for addressing such issues.

Further, Senior Advocate Milind Sathe and Advocate Shekhar Jagtap, representing BCMG and BCI respectively, pointed out that both councils already have ICCs for their own employees. They reiterated the absence of an employer-employee relationship with practising advocates as a reason for the inapplicability of the POSH Act.

The court's decision highlights the delineation between regulatory bodies like Bar Councils and actual employment contexts. While Bar Councils regulate the profession, they do not engage lawyers in an employment capacity, thus exempting them from certain legal obligations under workplace harassment laws.

- Ends

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