New Delhi: The Bombay High Court’s ruling on Monday that women lawyers cannot invoke the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) against their male colleagues has sparked deep concern within the legal fraternity.
The ruling came in response to a Public Interest Litigation (PIL) filed by the UNS Women Legal Association, which sought the constitution of permanent Internal Complaints Committees (ICCs) within bar associations and councils.
However, the bench directed that any such misconduct should be addressed under the Advocates Act, 1961, and not the PoSH law.
“Insofar as grievance of the lady advocates is concerned, suffice it to say that they have a forum under Section 35 of the Advocates Act, 1961, under which the Bar Council has jurisdiction to take action against any advocate for not just professional but also other misconduct,” said the court.
A bench of Chief Justice Alok Aradhe and Justice Sandeep Marne held that since there is no employer-employee relationship between members of bar councils or associations, the PoSH Act does not apply, a move many say leaves women lawyers without a robust redressal mechanism.
“It is evident that the provisions of the Act of 2013 apply where the relationship of employer and employee exists. Neither Bar Council of India nor Bar Council of Maharashtra & Goa can be said to be employers of advocates. Therefore, the provisions of the Act of 2013 do not apply insofar as it pertains to advocates,” said the six-page order.
While the court maintained that remedies exist within the Advocates Act 1961 for “misconduct”, practicing advocates see this as limiting.
“The Supreme Court already has a PoSH Committee. The Delhi High Court’s present website, which inaugurated the PoSH Portal for Complaints on 3 July has a provision for this,” Supreme Court senior advocate Geeta Luthra told ThePrint. “The Bombay High Court’s ruling based on the interpretation of the Advocates Act is that there is already a remedy in the act, but the same does not appear to be in consonance with the PoSH Act. Even though the Advocates Act provides protection to client and advocate relationships, what about the relationship between advocates, judges, interns, law clerks etc?”
She further said that with more women in the legal profession, it was important that no genuine complaint should go unattended. According to her, the Advocates Act does not totally address the need for an ICC, which is mandated by the PoSH Act and the Vishakha Guidelines.
“There may be some overlap, however, in the legislations, but the PoSH Act is specifically intended to address sexual harassment complaints of women in the workplace and the two may need to be reconciled,” she said.
Other lawyers see the ruling as a stark reminder of the limitations in the current legal framework. Supreme Court advocate Urja Pandey said the structural gap in the law wasn’t just a legal issue but a social failure.
She argued that in an age when women are excelling in diverse professions as freelancers, independent consultants or lawyers, they find themselves without legal recourse when they face sexual harassment in “non-traditional spaces”.
“It implies that a woman’s safety and dignity at work depend not on her vulnerability or the seriousness of the misconduct, but on whether she has an official ‘employer’,” she said.
“The PoSH Act, meant to be a progressive, empowering statute, ends up excluding the very people who need it most,” she added.
Delhi-based advocate Krishnesh Bapat echoed the same sentiment.
Bapat criticised the court’s traditional definitions of employment, saying that “by reading ‘employer’ and ‘employee’ in the traditional master–servant sense, the Bombay High Court’s PIL ruling narrows the POSH Act and leaves practising advocates outside its shield”.
“That approach overlooks Parliament’s intentionally broad definitions, drafted to prevent technicalities from blocking relief,” he said.
Bapat added that forcing complainants to approach Bar Council disciplinary committees, which lack PoSH-specific safeguards such as gender-balanced panels, trauma-informed procedures and provisions for interim relief, may “effectively deprive women lawyers of a meaningful and responsive forum for justice”.
Meanwhile, advocate Saudamini Sharma from Delhi said even though the Bombay HC’s ruling is legally sound, it creates a challenge for women, as the PoSH Act includes provisions like female-led committees and external members, which make it easier and safer to report harassment.
“Bar Council committees, lacking such requirements, can feel less approachable and less sensitive to gender concerns. To address this gap, the Advocates Act should be amended to include gender-sensitive measures, such as mandating female representation and external members on disciplinary committees,” she said.
“These changes would foster a more equitable and supportive environment, encouraging women lawyers to come forward and ensure fair handling of harassment complaints within the legal profession,” Sharma added.
Kolkata advocate Jhuma Sen said the Bombay High Court’s ruling rests on a narrow, textual interpretation of “employer” and “workplace” under the Act.
According to her, this interpretation is both “legally flawed and institutionally myopic”.
The PoSH Act, she said, is a remedial, social-welfare legislation meant to ensure women’s right to a safe working environment beyond formal employment structures.
She added that the reliance on Section 35 of the Advocates Act, which deals with professional misconduct, is an inadequate substitute for the ICC framework.
“Section 35 proceedings are adversarial, slow, and lack the confidentiality, gender sensitivity, and procedural safeguards enshrined in the POSH Act. A professional misconduct complaint is no substitute for a trauma-informed, workplace-specific grievance mechanism,” she said.
“Moreover, referring women lawyers to Local Complaints Committees fails to recognise the unique vulnerabilities within the bar where peer, senior-junior, and judge-lawyer hierarchies exist, dynamics the PoSH law was designed to address within institutional settings,” she added.
Supreme Court senior advocate and Centre for Law & Policy Research co-founder Jayna Kothari emphasised that the role of Bar Councils isn’t just to regulate the legal profession but also extends to setting standards for professional conduct and addressing the welfare of lawyers.
She added that it was the Bar Council’s duty to set up Internal Complaints Committees to address complaints of sexual harassment faced by women lawyers because lawyers are not employed but are independent practitioners.
“Keeping all this in mind, the High Court could not have stated that the law will not apply to the Bar Council as they are not the employers of women lawyers,” she said.
How far does Section 35 of the Advocates Act, 1961 go?
Section 35 of the Advocates Act, 1961, outlines the procedure for dealing with cases of professional or other misconduct by advocates.
It mandates that if a State Bar Council has reason to believe an advocate has engaged in misconduct, the matter must be referred to its disciplinary committee for investigation and potential disciplinary action.
Ved Prakash Sharma, ex-chairman of the Bar Council of Delhi and co-chairman of the Bar Council of India since 2019, said that when the Bar Council receives sexual harassment complaints against another advocate, it deals with them according to the procedure relating to professional misconduct and any other misconduct laid down in Section 35 of the Advocates Act, 1961.
Even though the Advocates Act doesn’t provide an exhaustive list of what constitutes professional misconduct, Sharma said sexual harassment is definitely covered under misconduct.
In such cases, the Bar Council takes cognizance and can take action against the advocate, he said.
“If we find that the advocate is guilty of misconduct, (Section) 35 gives power to the Bar Council to look into the complaint of professional misconduct and other misconduct.”
The council holds an inquiry and investigation that mirrors court proceedings. “We exercise the powers of a court in holding our proceedings and evidence is taken and a chance is given to the parties,” he said.
If the advocate is found guilty of misconduct in the case of sexual harassment, the council takes action – ranging from suspending the advocate from practice and permanent removal to imposing compensatory costs or reprimanding the advocate.
“In small cases where we find the advocate should be given a chance to improve and the complaint is not very serious, we can let off the advocate with a reprimand. If it is very serious amounting to moral turpitude, we remove the advocate from the Bar Council,” he added.
(Edited by Sugita Katyal)
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