Bar Associations Can't Constitute ICC Under POSH Act: Kerala HC

Introduction

In a significant ruling for the legal fraternity, the Kerala High Court has quashed the report of an Internal Complaints Committee (ICC) formed by the Kollam Bar Association to investigate allegations of sexual harassment against a senior advocate. The court, presided over by Justice P.M. Manoj, held that Bar Associations do not qualify as "employers" under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), rendering their constitution of an ICC invalid. The petitioner, 76-year-old advocate E. Shanavas Khan, challenged both the ICC's inquiry report and his subsequent suspension from the association, stemming from a complaint by a 24-year-old fellow advocate, Nezlee N. This decision underscores the limitations of professional bodies like Bar Associations in invoking POSH mechanisms, emphasizing that such committees must be formed by actual employers in a workplace setting. The ruling, delivered on January 27, 2026, in WP(C) No. 39539 of 2024, clarifies the scope of the POSH Act and could influence how disciplinary actions are handled within legal associations across India.

The case highlights the intersection of professional ethics, workplace safety for women, and statutory interpretations under the POSH Act. While a parallel criminal FIR was registered under Sections 354, 354A(1)(i), 354A(1)(ii), and 354A(1)(iv) of the Indian Penal Code (IPC), the High Court's focus remained on the procedural validity of the Bar Association's internal mechanisms rather than the merits of the allegations.

Case Background

The dispute arose from an alleged incident on June 14, 2024, when the third respondent, Nezlee N, a junior advocate and member of the Kollam Bar Association, visited the petitioner's residence-cum-office to discuss the notarization of a document. According to the complaint filed by Nezlee N on June 15, 2024, she was subjected to sexual harassment during this visit, specifically in the dining hall of the petitioner's home. Both parties are members of the Kollam Bar Association, a registered entity under the Travancore Companies Regulation of 1092 (now aligned with the Companies Act), functioning primarily as a professional body for advocates rather than a traditional employer.

Following the complaint, the association's President promptly constituted an ICC under Section 4 of the POSH Act. The ICC conducted an inquiry and submitted its report (Ext. P8) on September 20, 2024, finding prima facie misconduct. Based on this, the association's Director Board suspended the petitioner from membership on June 26, 2024, citing Articles 12A(j) and 12A(e) of its Articles of Association, which address dishonourable and unprofessional conduct. A criminal FIR was also lodged at Kollam West Police Station (Crime No. 664/2024), leading to investigations that included a scene mahazar and seizure mahazar.

The petitioner, E. Shanavas Khan, challenged these actions through a writ petition under Article 226 of the Constitution, arguing that the Bar Association lacked jurisdiction to form an ICC. He contended that his residence was not a "workplace" under Section 2(o) of the POSH Act and that no employer-employee relationship existed. The timeline escalated quickly: notices were issued to the petitioner on June 18, 2024, demanding his response; the suspension followed his non-response; and the writ petition was filed after the ICC report, with hearings concluding on November 25, 2025.

This case is part of a broader context where professional associations have increasingly attempted to address internal harassment complaints using POSH frameworks, especially post the Supreme Court's directives in cases like Aureliano Fernandes v. State of Goa (2023). However, the Kerala High Court's intervention questions the applicability of these mechanisms to non-employer entities like Bar Associations.

Arguments Presented

The petitioner's counsel, led by Senior Advocate S. Sreekumar, mounted a multi-pronged attack on the ICC's jurisdiction. Primarily, they argued that the Kollam Bar Association could not be deemed an "employer" under Section 2(g) of the POSH Act, as it operates more like a club or professional society without employing its members. Advocates are independent professionals, not employees, drawing parallels to precedents like National Union of Commercial Employees v. M.R. Meher (AIR 1962 SC 1080), where an advocate's office was held not to be an "industry" under labour laws, and Sasidharan v. Peter & Karunakaran (AIR 1984 SC 1700), ruling a lawyer's firm not a "commercial establishment." They emphasized that treating the association as an employer would absurdly trigger obligations under laws like the Provident Fund Act for groups of 20 or more advocates.

Further, the alleged incident occurred at the petitioner's private residence (Door No. 164), distinct from his office (Doors 44-48), as evidenced by municipal building certificates (Exts. P13(a)-P13(d), P14) and separate electricity bills (Exts. P15, P16). This, they claimed, fell outside the "workplace" definition in Section 2(o), which requires a connection to employment activities. The counsel invoked the Bombay High Court's ruling in UNS Women Legal Association v. Bar Council of India (2025 SCC OnLine Bom 2647), arguing even the Bar Council cannot constitute ICCs for advocates. They also asserted violations of natural justice in the proceedings and suggested recourse under Section 35 of the Advocates Act, 1961, via the Bar Council of Kerala. On maintainability, they cited prior Kerala High Court decisions like Abdul Azeez v. Alappuzha Bar Association (1993 KHC 375) and Jose Kuttiyani v. High Court Advocates Association (2004 (1) KLT 35), affirming writ jurisdiction over Bar Associations.

The first respondent (Kollam Bar Association), represented by Adv. Siju Kamalasanan, defended the ICC's formation as a bona fide measure to protect members and avoid public controversy, given the case's media attention. They highlighted the association's status as a 1937-incorporated company and noted that multiple Kerala Bar Associations have operational ICCs. The suspension was justified under internal bylaws for misconduct, independent of POSH. They argued the petitioner participated without objection initially, submitting explanations (Ext. P6) and cross-examining the complainant, thus waiving jurisdictional challenges. Even if the ICC were invalid, they sought permission to proceed with disciplinary action under Article 12D.

The second respondent (ICC), through its chairperson Adv. C. Vijayakumari, raised a preliminary objection on non-joinder of all committee members, as required by POSH Rules. They contended no strict employer-employee tie is needed, citing the POSH Act's broad protection for "aggrieved women" under Section 2(a), extending to visitors like Nezlee N seeking professional services. The visit was work-related, blurring the office-residence line, especially with the petitioner's library and notary setup at home.

The third respondent (Nezlee N), argued by Advs. T.S. Maya and C.M. Mohammed Iquabal, challenged writ maintainability, asserting the Bar Association is not a "State" under Article 12, relying on Abhijeet Appasaheb Bacche-Patil v. Bar Council of Maharashtra (2025 SCC OnLine Bom 1514) and Secretary Alipur Bar Association v. Subir Sengupta (2024 SCC OnLine Cal 3597). On merits, they affirmed the incident as workplace harassment at the petitioner's professional setup, qualifying under Sections 2(g)(ii) and 2(o)(ii). They invoked Vishaka v. State of Rajasthan (1997) as the POSH Act's foundational basis and Women in Cinema Collective v. State of Kerala (2022 (2) KHC 565), arguing no employer-employee relationship is prerequisite for ICC inquiries in professional settings. The suspension was valid for non-compliance, and the FIR did not bar internal proceedings.

Legal Analysis

Justice P.M. Manoj's reasoning centered on a strict interpretation of the POSH Act's provisions, particularly Sections 2(a), 2(f), 2(g), 2(n), 2(o), 3, 4, and 9, which define key terms like "aggrieved woman," "sexual harassment," "employer," and "workplace," and mandate ICC formation by employers. The court dissected the Act's objective: preventing and redressing workplace sexual harassment through employer-led mechanisms. It held that Bar Associations, recognized only peripherally under the Kerala Advocates Welfare Fund Act, 1980, for welfare purposes, do not fit the "employer" mold under Section 2(g), which contemplates heads of departments, organizations, or supervisors in employment contexts.

The judgment distinguished Bar Associations from statutory bodies like the Bar Council of Kerala, empowered under Sections 3 and 6 of the Advocates Act, 1961, for enrollment, discipline, and welfare. Unlike clubs (T.P. Daver v. Lodge Victoria, AIR 1963 SC 1144), where members are bound by bylaws but not as employees, Bar Associations lack the authority to impose labour-like obligations. The court rejected arguments from Aureliano Fernandes v. State of Goa (2023 KHC 6567) and Initiatives for Inclusion of Foundation v. Union of India (2023 KHC 6935), which directed ICCs in statutory professional bodies, noting these apply to apex/state regulators, not local associations like Kollam Bar.

On "workplace," the court accepted evidence (Exts. P11, P13 series) that the incident occurred in a private residential space, not extended to employment visits under Section 2(o)(v). This notional extension principle was limited, as the POSH Act requires a clear employment nexus, absent here between independent advocates.

Regarding writ maintainability, the court upheld jurisdiction under Article 226(2), as challenges to statutory-like actions (ICC under POSH) by recognized entities (Bar Associations under welfare laws) warrant High Court oversight, overruling non-State objections per prior Kerala precedents like WP(C) No. 89/2020.

The analysis clarified distinctions: POSH inquiries address civil redressal, not criminal liability (FIR separate); ICCs are employer-specific, unlike Local Committees under Section 6 for small setups. Precedents like Vishaka were acknowledged for POSH's genesis but not stretched to validate invalid committees. Implications include reinforcing Bar Councils' primacy for advocate discipline (Section 35, Advocates Act) over ad-hoc association actions, preventing misuse of POSH in non-employment scenarios.

This ruling aligns with Bombay HC's stance in UNS Women Legal Association, potentially curbing overreach by professional bodies while urging clearer guidelines for harassment in liberal professions.

Key Observations

The judgment is replete with incisive observations on the POSH Act's scope:

• On employer status: "The Bar Association cannot be treated as an 'employer' under the (POSH Act). Hence, the formation of the ICC does not qualify under the mandate of Section 4 of the PoSH Act." This underscores the Act's employment-centric framework.

• On ICC validity: "Therefore, the constitution of the ICC by the (Kollam Bar Association) is itself against the objective and specific requirements of Section 4 of the PoSH Act. Consequently, the report submitted by the ICC (Ext. P8) has no legal basis to stand upon. Accordingly, Ext. P8 should be set aside." Highlighting procedural nullity.

• On workplace: "The alleged incident occurred at the petitioner's private residence, which is not a workplace as defined under Section 2(o). Furthermore, neither the petitioner nor the respondent is an employee of the Kollam Bar Association, and therefore, no employer-employee relationship exists." Distinguishing private from professional spaces.

• On broader applicability: "As per the provisions of the Advocates Act, it can be seen that the Bar Association is not mentioned anywhere. The only mention with respect to the Bar Association is found under the Kerala Advocates Welfare Fund Act, 1980, and that is solely for the purpose of maintaining a roll of persons who are also on the rolls of the Bar Council of Kerala." Limiting associations' regulatory role.

• On writ jurisdiction: "This court has previously interfered in matters concerning Bar Associations, as seen in Abdul Azeez supra and in Jose Kuttiyani supra... Hence, this Court has every jurisdiction to entertain the writ petition." Affirming oversight.

These quotes encapsulate the court's textualist approach, prioritizing statutory precision over expansive interpretations.

Court's Decision

The Kerala High Court allowed the writ petition, quashing the ICC report (Ext. P8) and declaring the committee's constitution illegal under Section 4 of the POSH Act. It held: "Accordingly, Ext. P8 should be set aside." The suspension order (Ext. P5) was consequentially invalidated, as it stemmed from the flawed report. However, the court left open factual merits of the allegations, natural justice issues, and the criminal FIR, directing that disciplinary matters be routed through the Bar Council of Kerala under the Advocates Act.

Practically, this decision prohibits Bar Associations from forming ICCs, shifting harassment redressal to Local Committees (Section 6, POSH) or Bar Councils for professional misconduct. It protects senior advocates from potentially biased internal probes while safeguarding complainants by clarifying alternative forums. For future cases, it mandates verifying "employer" status before POSH invocation, potentially reducing frivolous association-led inquiries but raising concerns about gaps in protecting women in non-traditional workplaces like law practices.

In the legal community, this could prompt the Bar Council of India to issue guidelines aligning POSH with advocate regulations, ensuring swift, fair handling of such complaints without diluting professional autonomy. The ruling reinforces that POSH is not a catch-all for internal disputes but a targeted tool against workplace exploitation, influencing similar challenges in other professional bodies.