SC Women Lawyers Challenge Bombay HC Ruling Excluding Bar Councils from POSH Act

New Delhi – The Supreme Court of India is set to examine a critical question concerning the safety and dignity of women in the legal profession: Does the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) apply to advocates and the Bar Councils that regulate them? This pivotal issue has been brought to the apex court by the Supreme Court Women Lawyers Association (SCWLA), which has challenged a Bombay High Court judgment that effectively leaves women lawyers without the specific protections of the POSH Act.

A Supreme Court bench comprising Justice B.V. Nagarathna and Justice R. Mahadevan issued notice in the special leave petition filed by the SCWLA, captioning the case as Supreme Court Women Lawyers Association v. Bar Council of India and Ors. (Diary No. 49533/2025). The bench has tagged the matter with a similar pending writ petition, Seema Joshi v. Bar Council of India and Ors. , indicating a consolidated hearing on this fundamental issue.

The appeal contests the Bombay High Court's finding that since Bar Councils are not the "employers" of advocates, the framework of the POSH Act, which is predicated on an employer-employee relationship, cannot be invoked for complaints of sexual harassment by one advocate against another.

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The Bombay High Court's Controversial Judgment

The controversy stems from the Bombay High Court's dismissal of a Public Interest Litigation (PIL) filed by the UNS Women Legal Association. The PIL sought the establishment of permanent grievance redressal mechanisms within Bar Councils and Bar Associations to handle sexual harassment complaints against lawyers.

The High Court, in its impugned order, adopted a narrow and literal interpretation of the POSH Act. It concluded that the Act's provisions are applicable only within a formal employer-employee structure. Consequently, it held that the Bar Council of India and the Bar Council of Maharashtra and Goa could not be compelled to form Internal Committees (ICs) under the POSH Act to adjudicate complaints between advocate-members. The court reasoned that while the Act would apply to the direct employees or committee members of the Bar Councils, it does not extend to the thousands of advocates who are merely registered with these regulatory bodies.

Instead, the High Court directed that instances of misconduct by male advocates against their female colleagues could be addressed under Section 35 of the Advocates Act, 1961, which deals with "professional or other misconduct." This reasoning has been heavily criticized for failing to recognize the specific nature of sexual harassment and the specialized, confidential procedures mandated by the POSH Act.

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SCWLA's Arguments Before the Supreme Court

Appearing for the SCWLA, counsel vehemently argued that the High Court's interpretation undermines the very purpose of the POSH Act, a special law enacted to ensure a safe, secure, and dignified working environment for all women. The petitioner contended that the legal profession, with its unique power dynamics and hierarchical structures, is a "workplace" in every sense of the word for women lawyers, interns, and legal researchers.

The key arguments advanced by the SCWLA include:

1. Purposive Interpretation Over Literalism: The High Court's insistence on a strict employer-employee relationship ignores the expansive definition of "workplace" in the POSH Act and the Supreme Court's own jurisprudence, which has consistently favoured a broad, purposive interpretation of welfare legislation.

2. Binding Precedent Ignored: The petitioner submitted that the High Court's decision runs contrary to the principles established by the Supreme Court in the Aureliano Fernandes case. In that landmark ruling, the apex court directed that every professional body, including those regulating medical and legal professions, must establish an Internal Complaints Committee to address issues of sexual harassment.

3. Inadequacy of the Advocates Act: The counsel highlighted the shortcomings of relying solely on Section 35 of the Advocates Act. She pointed out that this provision is a general clause for professional misconduct and lacks the specific, sensitive, and time-bound procedures required to handle sexual harassment complaints. Crucially, Section 16 of the POSH Act mandates strict confidentiality to protect the complainant, a safeguard entirely absent in the disciplinary proceedings under the Advocates Act. "We as advocates are standing here fighting for dignity of others and we have been deprived of the redressal mechanism," she poignantly submitted.

4. Exclusion of Vulnerable Groups: The reliance on the Advocates Act also leaves non-advocates within the legal ecosystem, such as interns and legal researchers, with no recourse, as Section 35 only pertains to the conduct of enrolled advocates.

The SCWLA's petition, filed through Advocate-on-Record Sneha Kalita, seeks a definitive declaration from the Supreme Court that the POSH Act's protections extend to all women advocates registered with State Bar Councils. It further demands directions for all Bar Councils and Bar Associations to immediately constitute functional Internal Committees in compliance with the Act.

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Judicial Remarks and Broader Implications

While issuing the notice, Justice B.V. Nagarathna made a notable observation regarding the functioning of the Supreme Court's own Gender Sensitization and Internal Complaints Committee (GSICC). She highlighted the issue of frivolous or misplaced complaints being filed with the committee, which are unrelated to 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," she remarked, indicating the practical challenges that such committees face.

Despite these administrative hurdles, the court's decision to hear the SCWLA's plea signals a recognition of the gravity of the issue. The outcome of this case will have far-reaching consequences for the legal profession across India. A ruling in favour of the SCWLA would affirm that the right to a safe workplace is universal and cannot be negated by technical interpretations of employment relationships. It would compel the legal community's regulatory bodies to institutionalize robust, confidential, and accessible mechanisms for preventing and redressing sexual harassment, thereby fostering a more equitable and secure environment for women in law. Conversely, an affirmation of the High Court's view could perpetuate a significant gap in protection, leaving women advocates to rely on a disciplinary framework ill-suited to address the nuances of gender-based harassment.

As the legal fraternity awaits the final adjudication, this case serves as a critical test of whether the profession's own regulatory structures will evolve to fully embrace the principles of equality and dignity they are sworn to uphold for all citizens.