Structural Gaps in Applying POSH to Bar Councils and Bar Associations

THE Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH Act’) is not, on its face, a narrow statute. Section 2(f) defines 'employee' broadly enough to include regular, temporary, ad hoc, daily wage, contractual and apprentice workers, whether employed directly or through an agent. Section 2(o) defines 'workplace' to extend beyond a formal office to any place visited by the employee in the course of employment. The Parliament plainly intended wide coverage.

Yet the Act extends no meaningful protection to women advocates. This is not because the Parliament overlooked them, nor because the text can be read more generously with a little purposive effort. The failure is structural. The Act's entire redressal architecture rests on the figure of an ‘employer’. The Internal Complaints Committee (‘ICC’) must be constituted by an employer. The findings must be acted on by an employer. Penalties for non-compliance fall on an employer. Once the employer is removed from the picture, the machinery has no surface to operate on. Bar Councils and Bar Associations are not, and cannot ordinarily be treated as, employers of the advocates who are enrolled  into them. And therein lies the central legal problem.

The Statutory Framework

Section 4 requires every employer to constitute an ICC at each office or branch with ten or more employees. The ICC must be headed by a senior woman employee, include two other employees, and have an external member with relevant expertise. The external member requirement was inserted to prevent complaints from being managed entirely in-house. Under Section 13, the ICC submits its report to the employer, who must act on it within sixty days. Under Section 26, failure to constitute an ICC or act on its findings attracts fine and, on repetition, cancellation of registration or licence. 

The word 'employer' is defined in Section 2(g). For private establishments, it means a person responsible for the management, supervision and control of the workplace. A residual category in Section 2(g)(iii) provides that for workplaces not otherwise covered, the employer is 'such officer as the appropriate Government may by notification specify.' This clause was included for atypical situations precisely because Parliament anticipated that the standard definition would not reach everywhere. It has not been invoked for bar bodies.

Where no ICC exists, Section 6 provides for a Local Complaints Committee (LCC’) constituted by the District Officer. The LCC is the Act's fallback for workers in smaller establishments or the unorganized sector. But it is important to be precise about what the LCC does and does not do. Section 6(1) addresses situations where an ICC cannot be constituted due to fewer than ten workers, or where the complaint is against the employer. It provides an alternative forum for those already within the Act's coverage. It does not extend the Act's coverage to persons outside an employment relationship. An aggrieved woman still needs to be 'a woman employed at a workplace' under Section 2(a). The LCC changes the venue; it does not change who qualifies.

The Employee-Employer Gap: Where Advocates Fall

An advocate enrolled under the Advocates Act, 1961 is an independent professional. Her relationship with the Bar Council is regulatory: it enrols her, maintains her name on the roll, and disciplines her for professional misconduct. Her relationship with a Bar Association is associational: she pays membership fees, uses its facilities and participates in its governance. Neither relationship involves direction of work, payment of wages or authority to terminate professional engagement. The control element that lies at the heart of employment is absent from both.