Advocates not employees of Bar Councils; complaints committee under PoSH Act not applicable: Bombay HC
The court said that Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) applies when employer-employee relationship exists. Therefore, provisions related to formation of Internal Complaints Committees (ICCs) are not applicable to advocates.
'However, the same would apply in so far as it pertains to employees of the BCI as well as BCMG,' the HC noted.
It added that the women advocates can raise their grievances, including complaints of sexual harassment under Section 35 of the Advocates Act, 1961 which prescribes punishment for professional as well as other misconduct by lawyers.
A bench of Chief Justice Alok Aradhe and Justice Sandeep V Marne disposed of PIL filed in 2017 by the UNS Women Legal Association, which sought formation of permanent grievance redressal mechanism to redress sexual harassment complaints against advocates.
Senior advocate Milind Sathe representing BCMG stated that local committees have been formed under Section 6 of the PoSH Act across all districts led by District Magistrates or Collectors.
Sathe also submitted that Section 35 of the 1961 law provides any person including woman advocate to lodge complaint before the state bar council for misconduct, including acts of sexual harassment. Advocate Shekhar Jagtap for BCI also submitted that it has formed panels under the law.
'It is evident that the provisions of the Act apply to a case of an employer which presupposes that there has to be an employer and employee relationship. Neither BCI nor BCMG is an employer of advocates. Therefore, the provisions of the 2013 Act do not apply in so far as it pertains to advocates,' the HC noted.
'However, the same would apply insofar as it pertains to employees of the BCI and BCMG. In view of aforesaid, no further orders are required to be passed in the PIL and the same is disposed of,' the court held.
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