The Bombay High Court Today (July 7) said that Bar Councils do not need to form ICCs under the PoSH Act since lawyers are not employees. Sexual harassment complaints by advocates can still be handled under the Advocates Act, 1961.
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MUMBAI: The Bombay High Court today rejected a request to form permanent Internal Complaints Committees (ICCs) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) in both the Bar Council of Maharashtra and Goa (BCMG) and the Bar Council of India (BCI).
The bench, which included Chief Justice Alok Aradhe and Justice Sandeep Marne, made it clear that the PoSH Act only applies in cases where there is a clear employer-employee relationship.
In this case, since advocates are not employees of the Bar Councils, the provisions of the PoSH Act do not apply.
The Court clearly stated:
“Thus, it is evident that the provisions of Act apply when there is an employer-employee relationship. Neither the Bar Council of India nor the Bar Council of Maharashtra and Goa can be said to be the employers of advocates … Thus, the provisions of the POSH Act, 2013 do not apply to advocates.”
This order came in response to a Public Interest Litigation (PIL) that was filed back in 2017 by the UNS Women Legal Association. The PIL had asked for a permanent system to address complaints of sexual harassment against lawyers through formal ICCs within Bar Councils.
However, the Court dismissed the plea by pointing out that if any advocate faces sexual harassment from another advocate, they are not without legal options. They can file a complaint under the Advocates Act, 1961.
The Court emphasized that the PoSH Act may not apply to advocates themselves, but it does apply to employees working in Bar Councils or Bar Associations if the number of employees is more than ten. In such cases, an ICC must be formed, as required by law.
During the hearing, Senior Advocate Milind Sathe, who appeared for BCMG, informed the Court that Local Committees have already been formed in all districts under the leadership of District Magistrates or Collectors, in line with Section 6 of the PoSH Act.
He also mentioned that under Section 35 of the Advocates Act, 1961–
“Any person, including a woman advocate, can file a complaint before the State Bar Council for professional or other misconduct, including acts of sexual harassment.”
Considering these existing remedies and frameworks, the Bombay High Court concluded that there is no legal reason to force Bar Councils to create ICCs for advocates, since they are not employees under the PoSH law.
The PIL was accordingly disposed of, reinforcing that while the PoSH Act provides protection to employees, advocates must rely on provisions under the Advocates Act for any grievance related to misconduct or harassment by fellow lawyers.
CASE TITLE:
UNS Women Legal Association (Regd). v. Bar Council of India and ors.
POSH Act in India: Law Preventing Sexual Harassment at Workplaces
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, also known as the POSH Act, is a very important law in India. It is made to protect women from sexual harassment at their workplace and to ensure that they can work in a safe and respectful environment.
This law applies to all kinds of workplaces across the country, whether big or small, government or private, organized or unorganized, including domestic work.
The Act is based on three major goals: prevention of harassment, prohibition of such acts, and redressal of complaints in a proper way.
Key Features of the POSH Act
- Definition of Sexual Harassment
The law gives a wide meaning to sexual harassment. It includes:
- Unwanted physical contact
- Demands or requests for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwanted physical, verbal or non-verbal behavior of a sexual nature
- Where the POSH Act Applies
The POSH Act applies to all workplaces:
- Private offices and companies
- Government departments
- Factories
- Shops and establishments
- Educational institutions
- Hospitals and nursing homes
- Homes (for domestic workers)
It protects not only permanent employees but also temporary, part-time, and contract workers.
- Duties of Employers under the POSH Act
Every employer with ten or more workers must:
- Set up an Internal Complaints Committee (ICC) in every office or branch
- Ensure a safe working environment
- Display details of the POSH Act and the ICC on notice boards
- Organise regular awareness and training sessions for employees
- File an annual report with the District Officer about the number of complaints received and actions taken
- How the Complaint Process Works
- Internal Complaints Committee (ICC)
Workplaces with ten or more employees must create an ICC. The committee must have:- A woman Presiding Officer (senior woman employee)
- At least two other employees
- One external member from an NGO or legal background
- Local Complaints Committee (LCC)
If there are fewer than ten employees, or if the complaint is against the employer, then the case must go to the LCC set up by the local District Officer. - Filing a Complaint
A complaint should be made within three months of the incident. It can be filed by the woman herself or by someone else on her behalf. The committee must complete the inquiry within 90 days and take necessary action. - Penalties and Action
If the person is found guilty, they can be punished by:- Warning or written apology
- Deduction from salary
- Termination of employment
- Legal action in serious cases
- Protection for Complainants
The Act strictly says that a woman should not face any punishment, threat, or discrimination for filing a complaint in good faith. Retaliation is not allowed.
- Main Objectives of the POSH Act
- Prevention: To stop sexual harassment before it happens by educating people and creating awareness
- Prohibition: To ban all kinds of sexual harassment in the workplace
- Redressal: To provide a proper system to investigate and resolve complaints fairly and quickly
- Why the POSH Act Is Important
The POSH Act is important because it:
- Promotes gender equality at work
- Encourages women to speak up without fear
- Makes sure that workplaces are safe and respectful for everyone
- Builds accountability among employers and employees
- Helps prevent misuse of power or position against women
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