Supreme Court issues notice to Centre, BCI on plea seeking PoSH Act protection for women lawyers

The petition said in the absence of a clear precedent on this issue of applicability of the POSH Act to state bar councils or bar associations, women lawyers in India were at risk of an uneven protection across states, which is against the mandate of the statute. (PTI file photo)

The Supreme Court Women Lawyers Association has moved the Supreme Court to challenge a Bombay High Court ruling that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, cannot be invoked by women advocates lodging sexual harassment complaints against fellow advocates before Bar Councils.

A bench comprising Justice BV Nagarathna and Justice R Mahadevan has issued notice on the challenge and ordered that it be heard along with Seema Joshi v. Bar Council of India and Ors, reported LiveLaw.

Advocate and author Seema Joshi had filed a petition seeking directions to implement and apply the ACt to women advocates enrolled with State Bar Councils/Bar Associations.

During the hearing, counsel for the petitioner criticised the High Court for what she described as a constrained understanding of the statute.

She argued that the Bombay High Court’s view contradicts the Supreme Court’s position in Aureliano Fernandes, where the Court had said that every professional body is expected to establish an Internal Complaints Committee.

According to her, the High Court had “adopted a narrow interpretation” by insisting on the presence of a formal employer-employee relationship for the Act to apply, ignoring that the legislation was crafted as a special mechanism to secure a safe and dignified workspace for women.

The petitioner’s counsel also contrasted statutory protections. She pointed to Section 16 of the PoSH Act, remarking that it mandates confidentiality in such proceedings, whereas the Advocates Act lacks any similar confidentiality safeguards.

She further drew attention to Section 35 of the Advocates Act, which empowers disciplinary action for “professional or other misconduct,” but pointed out that this provision leaves out interns, legal researchers, or other persons similarly engaged in the legal environment.

In her words, “We as advocates are standing here fighting for dignity of others and we have been deprived of the redressal mechanism," according to the report.

After issuing notice, Justice Nagarathna reflected on the functioning of the Supreme Court Gender Sensitization and Internal Complaints Committee, remarking on the volume of complaints that fall outside the realm of sexual harassment.

“You know, we have the GSICC, and we get all sort of complaints. That my matter is not being heard... We get all kinds of complaints other than sexual harassment, even then we have to go on filing it by an order. We don't know…”, she has been quoted to say.

The Bombay High Court, in the decision under challenge, had concluded that the PoSH statute governs only those situations marked by an employer-employee relationship.

It held that Bar Councils cannot be treated as employers of advocates, and thus women lawyers who are members of the Bar Council of India or the Bar Council of Maharashtra and Goa do not fall within the Act’s coverage.

The High Court clarified that the Act could extend only to employees or committee members of Bar Councils. As for misconduct by male advocates towards women advocates, the High Court pointed to Section 35 of the Advocates Act as the route for redress.

On this basis, it dismissed a public interest litigation by the UNS Women Legal Association, which had sought permanent grievance mechanisms for sexual harassment complaints against lawyers.

The writ petition linked to the present Special Leave Petition (SLP) seeks a declaration that the PoSH framework shields women advocates registered with State Bar Councils and practising in courts, and asks for directions compelling Bar Councils and Bar Associations to create Internal Committees for such complaints. It highlights that excluding women advocates undermines the PoSH Act’s very purpose.

The case emanating from Bombay HC decision has highlighted the limitations of the Act since its enacted from the Vishaka guidelines. The guidelines stemmed from the 1992 gang rape by dominant-caste men of an auxiliary nurse Bhanwari Devi (a government Aanganwadi field worker) while working against child marriage.