Advocates not employees of Bar Councils: Bombay High Court junks PIL for PoSH ICCs in Bar bodies

The Bombay High Court today dismissed a plea to constitute permanent Internal Complaints Committees (ICCs) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) within the Bar Council of Maharashtra and Goa (BCMG) and the Bar Council of India (BCI) [UNS Women Legal Association (Regd). v. Bar Council of India and ors].

A Division Bench comprising Chief Justice Alok Aradhe and Justice Sandeep Marne observed that the PoSH Act applies only where an employer-employee relationship exists. 

The Court proceeded to hold that Bar Councils are not the employers of advocates, making the PoSH Act's provisions on the formation of ICCs generally inapplicable when it comes to law practitioners.

“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 held.

The Court passed the ruling on a PIL filed in 2017 by the UNS Women Legal Association, which sought the formation of permanent grievance redressal mechanisms to address sexual harassment complaints against lawyers. 

While rejecting the plea, the Court on Monday noted that advocates are not remediless if they face sexual harassment from their fellow lawyers, as they can still file a complaint for misconduct under the Advocates Act, 1961. 

It also clarified that while the PoSH Act provisions may not apply to advocates, they would still apply to the employees of Bar Councils or Bar Associations, provided they have more than ten employees, as per the statutory requirement for setting up an ICC.

Senior Advocate Milind Sathe, appearing for the BCMG, had informed the Court that Local Committees have already been constituted across all districts under the chairmanship of District Magistrates or Collectors, as required under Section 6 of the Act.

Sathe also referred to Section 35 of the Advocates Act, 1961, which allows any person, including a woman advocate, to file a complaint before the State Bar Council for professional or other misconduct, including acts of sexual harassment.

In light of these mechanisms, the Court disposed of the PIL, stating that there was no legal basis to mandate setting up of ICCs in the Bar Councils for advocates, who are not employees.