Beyond the Payroll

**Suha K

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) is a legislation that seeks to protect women from sexual harassment at their workplace through prevention and redressal of complaints of sexual harassment and connected matters.

This Act while covering a range of workplaces misses out on bringing advocates under its ambit. A public interest litigation was filed in the Bombay High Court seeking to direct the Bar Council of India and the Bar Council of Maharashtra and Goa to set up a permanent grievance committee for women lawyers. The Court gave a narrow interpretation to the ambit of the legislation by holding that the POSH Act applies only when there is an employer- employee relationship and that since the Council is not the “employer” of the advocates who practice under its license, the Act’s provisions do not apply to the advocates but to the staff of the Council. Instead, it gave an alternate remedy of directing female advocates to rely on Section 35 of the Advocates Act, 1961 which punishes advocates under its roll who are guilty of profession or other misconduct through a disciplinary committee.

While an appeal against this decision remains in the Supreme Court, this writeup aims to put forward an argument as to why this exclusion cannot continue through a comparative analysis of the POSH Act and S.35 of the Advocates Act, and relevant case laws.

POSH Act: An Overview and Comparison with S.35 of Advocates Act

The POSH Act institutionalizes redressal for instances of sexual harassment in the workplace by mandating every employer to set up an Internal Complaints Committee which is empowered to receive, inquire and redress complaints of sexual harassment. 

Its definitions are drafted broadly with “Employee” covering regular, temporary, ad hoc, daily wage, and contract workers along with probationers, apprentices and unpaid employees as per S. 2(f). The Act also has a broad interpretation of an “Aggrieved woman” with S. 2(a) including any woman, whether employed or not, has alleges to have been subject to sexual harassment. More importantly, S.2(o) defined “workplace” to be any place visited by the employee arising out of or during the course of employment. 

The legislation recognizes the sensitive nature of the subject as a result of which it has several important features enacted into the legislation such as a specialized ICC which is meant to specifically handle instances of sexual harassment and is mostly composed of women, mandatorily confidential (S.16), a fixed timeline of 90 days to complete the inquiry (S.11), provide transfer, leave or other relief (S.12), and compensation (S.15). The Act in itself is victim centric in nature as a result of which their needs are specifically addressed throughout the Act.

In comparison, the Bombay High Court’s recommended alternate of S.35 of the Advocates Act is a general disciplinary provision which does not really focus on protecting the individual complainant as it doesn’t have any of the POSH Act’s necessary and subject matter specific features such as confidentiality, timelines, interim action, and committee composition. This sort of trivializes the gravity that was assigned to the Parliament when it enacted a dedicated legislation. 

While the Bombay High Court decision gives a technical and almost bureaucratic distinction it actually removes an entire profession which is built on seniority hierarchy, power dynamics, and odd working hours with lots of travel from the only specialized legislation enacted to address sexual harassment. 

Why the S.35 Framework Makes Reporting Almost Impossible 

Sexual harassment is not a concern that is hypothetical or unique to India. Ellis and Buckett’s research on workplace sexual harassment in the legal profession describes a structure that tends to protect harassers and silence complainants, particularly when the harasser is a senior figure or a “rainmaker” whose goodwill a junior colleague’s career depends on. Pelemo, Mehanathan and Kulshrestha further add on by stating that this knowledge of the victim of her precarious situation in this structure and the potential professional repercussions she could face often lead her to stay silent which in turn emboldens repeat conduct. Without an institutional climate which actively refuses to enable such behavior, a compliant against a senior advocate or judge could have severe ramifications to the complainant’s career. 

The legal profession is organized around dependency centric relationships that do not always map into a payroll. For instance, junior advocates and interns sometimes work in senior counsel’s chambers without a formal contract of employment, yet are professionally and financially dependent on them. Litigation careers are built on referrals, seniors’ goodwill, and courtroom reputation which are all things a harasser in a position of seniority can threaten or withdraw.

This implies that there needs to be a three-pronged approach to address sexual harassment which is institutional intolerance for sexual harassment, a victim-centric redressal mechanism based on anonymity, and a specialized inquiry body with a higher percentage of women. S. 35 provides none of the required means to properly address sexual harassment. By asking a female advocate or intern who has been harassed to ask for redressal with no confidentiality guarantee, no deadline, and no interim protection while the complaint is pending ignores the power dynamics and other factors which act as barriers against seeking redressal and either acts as a deterrent against complaining or potentially deters her career progression. 

Several cases such as Nagar Nigam Gorakhpur v. Suresh Pandey have ruled that when it comes to legislation that is welfare, beneficent, or social justice oriented, it must receive a liberal construction and when there are two constructions, the Court must prefer the one that fulfills the Act’s policy and is more beneficial to the class the Act was passed to protect. If there is a construction that defeats the rights of the intended beneficiaries/ have nots, it must be avoided. The Statement of Objects of Reasons of the POSH Act and the Vishaka Guidelines make its purpose protecting women at their workplace and stops there and does not restrict its applicability on the basis of any employment contract. By applying the Heydon’s rule, we can see that the true purpose of creating a victim centric redressal framework is the mischief of sexual harassment which affects all working women regardless of whether they work for a big firm or an advocate. 

Section 2(a) provides base for this argument as it already defines an aggrieved woman as any woman who is employed or not. This clause was drafted to cover clients, visitors, interns and any other without any employment centric relation to the workplace. Section 2(o)’s definition of “workplace” is similarly untethered from an employer and only demands it be in “connection with” work and has nothing to do with the payroll. The problem with interpretation lies not with structural exclusion of non-employees of the Act but rather S.2(m)’s definition of a respondent which is further linked to S.9’s process of instituting a complaint and S.4’s ICC constitution provisions which assume that an employer exists to set up the committee. This is more of a mechanism gap rather than a coverage gap which can be filled through judicial interpretation.

Judicial Interpretation and Directions by the Supreme Court

In Medha Kotwal Lele v. Union of India [(2013) 1 SCC 297], the Court operationalized the Vishaka guidelines across sectors and specifically noted that there is a lack of redressal against sexual harassment in Bar Associations and also directed the BCI to ensure that all “Bar Associations in the country and persons registered with the State Bar Councils follow Vishaka Guidelines”. This can be understood as the onus being put on Bar Councils to redress sexual harassment issues.

Binuta Tamta and Anr v. High Court of Delhi and Ors [(2014) 13 SCC 305] specifically highlighted the issue of sexual harassment in courts with the relevant incident happening in Delhi High Court which eventually lead to the creation of the Gender Sensitisation and Sexual Harassment of Women at Supreme Court of India Regulations, 2013.

Also extremely relevant is Aurelia Fernandes v. State of Goa [(2024) 1 SCC 632] which gave specific instructions targeting statutory bodies like BCI and State Bar Association with regards to establishment of ICCs.

In practice, we currently have the Bar Council of Delhi with its own Sexual Harassment Committee with an online portal for anonymous reporting and the Supreme Court’s ICC established by the Gender Sensitisation and Sexual Harassment of Women at Supreme Court of India Regulations, 2013. If the Supreme Court itself recognises that lawyers engaging with an institution can fall within a POSH-style protective net without being paid by it, it is difficult to see why bar councils should be permitted a narrower view of their own obligations. This restrictive reading in turn can potentially invite other professional regulators to claim similar exemptions. 

Potential Reform Pathways

One potential way to solve the technical inconsistency that served as the Bombay High Court’s decision could be adopt the model of Australia’s Sex Discrimination Act whose S.28C which makes it illegal for someone with the power to confer, renew, extend, revoke or withdraw authorization or qualification which facilitates someone’s trade, profession or occupation. It targets the regulatory relationship instead of employment status. The “needed for or facilitates” wording is broader than strict necessity while staying anchored to profession or trade. By moving the link from employment to power, the inconsistency could be redressed. A similar interpretation has been held by the Karnataka High Court in X v. Internal Complaints Committee & Ors. which decided that contractual drivers come under the ambit of the POSH Act because the platform functionally controls their working conditions.  This model can work as a better option as it moves the basis for protection from the presence of an employment contract to something that the Bar Council already has, which is the power to decide who may practice. This could bring anyone subject to the enrolment, licensing and disciplinary authority of the BCI and other statutory regulatory bodies such as the National Medical Council and Indian Council for Chartered Accountants as well. This addresses an overall structural issue. This avoids the necessity of recognizing the Bar Council as an employer through legal fiction and instead recognizes a freestanding category of liability that is tied to regulatory power. 

This can be done in two ways. One could be by amending S. 2(f) and (g) which defines employer and employee but this could result in united consequences across other provisions that puts onus on the employer to discharge functions such as constituting the ICC, receiving appeals and implementing interim relief. The alternate option which is closer to the Australian model is to create a freestanding new section which creates a distinct trigger which attached liability to a regulatory body, person exercising licensing power or any other person along such lines by building on a power based relationship which is independent of employer-employee provisions with its own its own tailored mechanism as even some of the actions a body like BCI can take to redress sexual harassment and different from a conventional employer. This avoids destabilizing the interpretive architecture built up around an “employer” in ordinary workplace contexts. 

At the same time, it cannot be too vague by bringing any body with power to confer, revoke, or withdraw a professional qualification as that could cover unrelated bodies such as FSSAI. It should instead restrict it to those providing authorization to practice a profession or trade like Australia. 

If any amendment reaches any statutory regulatory body, it will need express provisions on how it interacts with existing grievance redressal mechanisms such as S.35 of the Advocates Act, to avoid risk of jurisdictional overlap or conflict between a specialized committee to address instance of sexual harassment and an already existing more general disciplinary provision that focuses more on professional misconduct.  This could lead to concerns such as those adjacent to double jeopardy if both forums proceed on the same facts or forum shopping. 

This can be redressed through a savings and allocation provision which bifurcates the subject matter of each forum by function wherein the specialized committee has exclusive original jurisdiction to look into matters related to sexual harassment and to grant POSH specific remedies while non-POSH matters will be handled by the S.35 system which retains its role in looking into professional misconduct which is not sexual harassment. To avoid clearing someone by S.35 on a re-hearing, the specialized committee’s finding must be made a binding input to ensure that POSH’s objectives are fulfilled. The amendment should provide that a finding of harassment by the specialized committee is conclusive for the purpose of triggering Section 35 disciplinary consequences, with the disciplinary committee’s residual role confined to determining quantum of sanction and any due-process objections specific to the sanction stage. There also needs to be a bar on parallel proceedings in both forums. 

Another option would be for the Bar Council of India to make regulations which brings in POSH equivalent procedures which include things like confidentiality, timelines, interim relief, external expert membership, and statutory compensation using their existing authority as a parallel or sub forum of the S.35 system through S.49 of the Advocates Act which grants the BCI power to make rules for discharging its functions. This can be done without waiting for any central amendment to the POSH Act. However, the first pathway would be better as it goes beyond advocates to regulate other professionals such as doctors. 

Conclusion

To conclude, it cannot be allowed for a profession that is built on the promise of access to justice to continue excluding a significant portion of its participants from accessing redressal through an extremely essential legislation that protects their safety and dignity. When silence overtakes redressal to become the norm, it becomes a license for harassers to continue and can act as a severe deterrent from women to enter the legal profession. The gap in POSH legislation must be addressed. 

**Suha K is a fourth year law student at Gujarat National Law University, Gandhinagar. Their primary interests lie in public policy, and, human rights law, and law and economics. 

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.