Lawyers Are Not Employees: Posh Act Not Applicable To Bar Council Members:-Bom HC

Court Clarifies Non-Applicability of POSH Act to Advocates

The Bombay High Court has ruled that the Bar Council of India (BCI) and the Bar Council of Maharashtra and Goa (BCMG) are not obligated to form an Internal Complaints Committees (ICCs) as has been provided under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act).

The Court based its decision on the fact that there is no employer-employee relationship between the Bar Councils and the practicing advocates registered with them.

Public Interest Litigation

The above decision of the Court was passed in response to a Public Interest Litigation (PIL) which was filed by the UNS Women Legal Association, where it was demanded that permanent grievance redressal mechanisms shall be created specifically to deal with such sexual harassment complaints against lawyers.

One of the Key Characteristics: Employer-Employee Relationship

A Division Bench including Chief Justice Alok Aradhe and Justice Sandeep Marne held that the POSH Act shall be strictly applied in such cases where there exists a formal employment relationship.

As the advocates are not employees of the Bar Councils but regulated by them, the Posh  Act shall not be applied to such complaints involving harassment by fellow advocates.

Existing Remedies Provided under the Advocates Act-

The Bench pointed out that there already is a mechanism provided under the Advocates Act, 1961, to deal with such concerns. Provided under Section 35 of the Act, disciplinary action shall be taken against such lawyers for professional or other misconduct, which includes the act of 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 court observed.

Bar Councils Have ICCs for Their Own Employees

During the proceedings, it was clarified by Senior Advocate Milind Sathe and Advocate Shekhar Jagtap, on behalf of BCMG and BCI, that Internal Complaints Committees are already there for council employees. However, it was emphasised by the respondents that as practicing lawyers are not employees of the council, the provisions of the POSH Act shall not be applicable to them.

Emphasis on Regulatory vs Employment Bodies

The present judgement by the Court underlines a clear distinction between the regulatory bodies as well as the employers. Although the Bar Councils act as a regulating body for  the legal profession, they are not the employers of the advocates, thus, Bar Councils will not fall within the scope of workplace-related legislations like the POSH Act.

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