SC seeks Centre, BCI reply on plea against HC bar on POSH complaints by women lawyers
The SC bench issued notice on the appeal filed by the Supreme Court Women Lawyers Association against the decision of the Bombay HC on July 7.
The Supreme Court on Friday sought responses from the Centre and the Bar Council of India (BCI) on a petition filed by a women lawyers’ association challenging a Bombay high court ruling that bars women advocates from approaching state bar councils with sexual-harassment complaints, on the ground that no “employer-employee relationship” exists between lawyers and the councils.
A bench of justices BV Nagarathna and R Mahadevan issued notice on the appeal filed by the Supreme Court Women Lawyers Association (SCWLA) against the decision of the Bombay HC on July 7. The petition had also included the Maharashtra government and the State Bar Council of Maharashtra & Goa who were parties before the high court.
The petition, argued by senior advocate Mahalakshmi Pavani, said the decision leaves women lawyers remediless as the high court held that Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,. 2013 (POSH Act), will not apply to bar councils and hence no permanent grievance redressal committee can be set up by these statutory councils.
The petition further questioned the high court judgment for observing that women lawyers can approach bar councils under section 35 of the Advocates Act, 1961. It said that Section 35 deals with punishment of advocates for professional misconduct which is different from sexual harassment.
The bench observed that such a committee — Gender Sensitisation and Internal Complaints Committee (GSICC) — also exists in the Supreme Court to deal with sexual harassment complaints by women lawyers and staff working in the top court. As justice Nagarathna heads the committee she shared her experience about receiving all kinds of complaints relating to listing of matters in court, which has nothing to do with sexual harassment. Yet, she added, every complaint is processed to maintain the record.
The petitioner body, registered in 2013, largely has women lawyers practicing in the top court. It has raised the cudgels for all women lawyers practicing in the country realising the legal void in addressing their concerns of harassment.
The petition filed through advocate Sneha Kalita said, “The judgment raises a grave concern as it will have serious ramifications on a pan-India level, since it not only creates an arbitrary, unreasonable classification and unjustifiable exclusion of women advocates from the purview of the POSH Act thereby creating a significant vacuum in redressing their grievances against sexual harassment, but it also further narrows; the constructive and expansive interpretation of the provisions of the POSH Act.”
On the conclusion by the HC that section 35 of Advocates Act can be resorted to by women lawyers to file complaints of sexual harassment, the petition added, “This erroneous, and . unreasonable finding wrongly equates the special mechanism for prevention of sexual harassment at workplace under the POSH Act with the procedure envisaged Under Section 35 of the Advocates Act, 1961.”
It said that section 35 is a general provision aimed at maintaining professional standards of the legal profession. The petition argued that the HC even lost sight of the progressive judgments passed by the top court in Vishaka v state of Rajasthan (1997) which gave an expansive meaning to securing women in workplaces and ordered an internal complaints committee (ICC) to be set up in every public or private workplace.
Later, in 2013, the top court in Medha Kotwal Lele directed the BCI to ensure the Vishaka Guidelines are followed by Bar Councils. Recently, in 2024, the top court sought reports from all states and union territories on the implementation under the 2013 Act seeking data on ICC set up in all public, private institutions. This matter is still being heard by the court and the order extends to professional bodies as well.
The HC order came on a petition filed by UNS Women Legal Association. With the top court having admitted the matter for consideration, it will be required to decide whether a “relationship of employer and employee” exists between lawyers and the council.
The judgment has said, “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.” However, it maintained that the Act will apply to the employees working with the bar councils.
