Bar Association can't conduct POSH Act inquiries: Kerala HC quashes sexual harassment inquiry against lawyer

The Kerala High Court has ruled that Bar Associations are not "employers" under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), and therefore cannot form an Internal Complaints Committee (ICC) under this Act to inquire into sexual harassment complaints against advocates [E Shanavas Khan v The Kollam Bar Association & ors]..The Bench of Justice PM Manoj made the observation while quashing a report filed by such a body set up by the Kollam Bar Association to inquire into sexual harassment allegations levelled by one advocate against another. A 76-year-old advocate who had been accused of sexual harassment challenged both the Kollam Bar Association's ICC inquiry report and his suspension from the Bar Association based on the committee's findings.The Court granted him relief after noting that the POSH Act did not contemplate the setting up of ICCs by Bar bodies. "The Bar Association cannot be treated as an 'employer' under the (POSH Act). Hence, the formation of the ICC does not qualify under the mandate of Section 4 of the PoSH Act. Therefore, the constitution of the ICC by the (Kollam Bar Association) is itself against the objective and specific requirements of Section 4 of the PoSH Act. Consequently, the report submitted by the ICC (Ext. P8) has no legal basis to stand upon. Accordingly, Ext. P8 should be set aside," the Court held..The Court clarified that Bar Associations functioned more like professional bodies and did not have an employer-employee relationship with member-advocates.The Court observed that while the existence of Bar Associations is recognised by the Kerala Advocates Welfare Fund Act, these bodies were tasked with maintaining a roll of persons who are also on the rolls of the Bar Council of Kerala.The Court, therefore, held that the constitution of an ICC by the Kollam Bar Association was unlawful and set aside the ICC report under challenge. .The matter was tied to a complaint filed by a female advocate, also a member of the Kollam Bar Association, accusing an advocate named Shanavas (petitioner) of sexually harassing her at his residence when she visited him in June 2024, for the notarisation of a document.Based on her complaint, an FIR was registered by the police against the petitioner under various provisions of the Indian Penal Code relating to sexual harassment.Following the complaint, the President of the Kollam Bar Association constituted an ICC, which filed a report concluding that the sexual harassment allegations against the petitioner were proved.Based on this report, the Kollam Bar Association suspended the petitioner's membership. This was then challenged by the petitioner before the High Court. .To decide the matter, the Court analysed key provisions of the POSH Act, including the definitions of 'aggrieved woman', 'sexual harassment', and 'workplace' and the requirement under Section 4 that every 'employer' shall constitute an ICC at the workplace.The Court noted that only a lawfully constituted ICC could entertain complaints under the POSH Act.In the present case, however, since the Bar Association could not be treated as an employer of its member-advocates, the Court held that it was not empowered to form an ICC or conduct an enquiry under the POSH Act.Thus, the Court set aside the ICC report. However, it left open the contentions concerning the facts and merits of the alleged sexual harassment incident."I do not find it necessary to address the remaining contentions raised by the respective counsel on both sides. The rest of the contentions concerning the facts and merits of the alleged incident are left open," the Court said. .The petitioner was represented by senior counsel S Sreekumar along with advocates S Sreekumar (Kollam), S Navas, K Vijayan, Namitha Rajesh, and Nithya VD.The Kollam Bar Association was represented by advocate Siju Kamalasanan.The complainant was represented by advocates TS Maya and CM Mohammed Iqbal..[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.