Supreme Court seeks BCI reply on plea to extend PoSH Act to lawyers

The Supreme Court on Friday sought the response of the Bar Council of India (BCI) and the Central government to a plea seeking application of the Protection of Women from Sexual Harassment Act (PoSH Act) to practicing lawyers [Seema Joshi v. Bar Council of India and ors].

The plea has challenged the Bombay High Court's recent refusal to order the constitution of permanent Internal Complaints Committees (ICCs) under the PoSH Act within Bar Councils.

The High Court had reasoned that the PoSH Act applies only where an employer-employee relationship exists. 

The High Court held that since Bar Councils are not employers of advocates, the PoSH Act cannot generally be made applicable when it comes to law practitioners.

This view has been challenged by lawyer Seema Joshi through a public interest litigation (PIL) petition, contending that there is no justification to exclude the legal profession alone from the purview of the anti-sexual harassment law.

A Bench of Justices BV Nagarathna and R Mahadevan today expressed reservations about the filing of a PIL under Article 32 against the High Court order instead of filing an appeal.

"You are asking for a stay and setting aside of Bombay High Court order. If you want to achieve something, follow the process. It cannot be an Article 32 plea," said Justice Nagarathna.

The petitioner's counsel said that the prayer for a stay on the High Court ruling is not being pressed. The Court proceeded to seek the response of the BCI and the Centre on the issue.

The Bar Council of Maharashtra and Goa, which was a party to the Bombay High Court case, was also dropped from the array of respondent-parties.

In her plea, she pointed out that the Supreme Court itself in Medha Kotwal Lele v. Union of India directed the BCI to ensure the implementation of the Vishaka guidelines, meant to curb sexual harassment in the workplace, across all Bar bodies. The plea argued that by ignoring this binding precedent, the Bombay High Court's ruling in the matter is per incuriam.

The plea further said that the High Court's ruling strips women advocates of fundamental protections guaranteed by the Constitution of India and the PoSH Act. Unless corrected, it will erode gender justice within the legal system itself, Joshi argues.

"This Hon’ble Court’s intervention is necessary to restore the law’s object, uphold constitutional guarantees, and reaffirm that no woman—least of all a woman advocate in court—can be left without remedy against workplace sexual harassment," the plea said.

To this end, the petitioner has urged the Supreme Court to issue the following directions:

1. Declare that the PoSH Act applies to women advocates enrolled with State Bar Councils and practicing before Courts, and that all State Bar Councils and Bar Associations across India are required to comply with the mandate of the PoSH Act;

2. Set aside the Bombay High Court’s Judgment inasmuch as it restricts the PoSH Act to employees of Bar Councils and Bar Associations only.

3. Direct the BCI, State Bar Councils, and Bar Associations to constitute/ continue Internal Committees under the POSH Act to hear complaints of women advocates. The plea notes that multiple legal bodies, including the Bar Council of Delhi, Delhi High Court Bar Association, and the Supreme Court of India through its 2013 Regulations, have already established Internal Committees under the PoSH Act for advocates.

4. Issue guidelines, in continuation of Vishaka and Medha Kotwal Lele, ensuring gender-just redressal mechanisms within the legal profession.

Advocates Ritika Vohra, Amber Tickoo and Naman Joshi appeared for the petitioner before the Supreme Court.