Lawyers are not employees of Bar Council: HC refuses to direct for ICC under PoSH

The bench was hearing a PIL filed by Women Legal Association seeking permanent grievance redressal mechanism to address complaints of sexual harassment against lawyers

MUMBAI: The Bombay high court on Monday refused to issue directions to the Bar Council of Maharashtra and Goa (BCMG) to constitute an internal complaints committee (ICC) to deal with complaints of sexual harassment under the Prevention of Sexual Harassment (PoSH) at Workplace Act, 2013 as lawyers are not employers of the bar council.

Mumbai, India - September 03, 2021: Bombay High Court at Fort, in Mumbai, India, on Friday, September 03, 2021. (Photo by Anshuman Poyrekar/Hindustan Times) (Anshuman Poyrekar/HT PHOTO)

A division bench of justice Ajey Gadkari and justice Rajesh Patil was hearing a public interest litigation (PIL) filed by the Women Legal Association seeking a permanent grievance redressal mechanism to address complaints of sexual harassment against lawyers.

The PoSH Act protects women from sexual harassment in the workplace and provides a mechanism for complaint redressal. It mandates the formation of ICCs in organizations with 10 or more employees to handle such complaints. Under the Act, the employer is responsible for creating a safe working environment, formulating a policy against sexual harassment and establishing an ICC. However, the court held that the provisions of the PoSH Act would not apply to the complaints of female lawyers of the Bar Council of India (BCI) and the BCMG as there was no “employee-employer” relationship between the lawyers and the bar councils.

“The provisions of the Act of 2013 apply when there is an employee-employer relationship. But in the case of advocates and the BCI or the BCMG, there is no such relationship as neither the BCI nor the BCMG can be said to be employers of the advocates and, thus the provisions of the Act of 2013 will not apply to complaints filed by lady lawyers,” the court said while rejecting the relief.

“It is, however, made clear that the provisions will apply on complaints filed by any of the employees or the committee members of the BCI and BCMG,” the court observed. It added that Section 35 of the Advocates Act provides action against professional or other misconduct by the 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 added.