Depriving Women Advocates Of POSH Protection - Disturbing Judicial Interpretation

On the 7^th of July, 2025, the Bombay High Court [Alok Aradhe, CJ and Sandeep V. Marne J] held that since the Bar Council of India and the Bar Council of Maharashtra and Goa cannot be said to be employers of Advocates, hence they are not required comply with the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, in respect of Advocates. It is the opinion of this author that the judges have extracted portions of the Act for perusal and arrived at a conclusion unintended by the legislation.

Focus on Workplace environment

Before going into the review of the decision, let us look at the intention and relevant definitions in the Sexual Harassment of Women at the Workplace Act. The Act aims to provide protection against sexual harassment of women at workplace, and protects the right of women to a safe environment free from sexual harassment.

The title of this legislation is an important internal aid to interpreting it, particularly when defining the scope, although courts have held that 'the true nature of any such enactment has always to be determined not on the basis of the label given to it but on the basis of its substance.' [Amarendra Kumar Mohapatra V. State of Orissa (AIR 2014 SC 1716)]. In this case the title and the substance of the Act are very much in alignment. The title specifically includes all women and all workplaces, regardless of employment status, as opposed to, say, Title VII of the US Civil Rights Act, 1964 which act brings sexual harassment and discrimination within the meaning of 'unlawful employment practices.' To understand this, the relevant definitions to be studied are

Sec. 2(a) 'aggrieved woman' means - (i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;

Sec. 2(o) 'workplace' includes - (i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;

(iii) hospitals and nursing homes;

(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

Sec. 2(g) 'Employer' means – (i) in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;

(ii) in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.

Sec.3 Prevention of sexual harassment – (1) No woman shall be subjected to sexual harassment at any workplace.

Sec. 9 Complaint of sexual harassment – (1) any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident;

Sec.11 - …the Internal Committee … shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed;

…Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

Sec. 19 Duties of employer - Every employer shall—

(a) provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;

(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;

(h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

The above provisions of the Act lead to the conclusion that

1. the Act focusses on safe workplace environment, not dependent on the employment status of the Aggrieved woman.
2. The employer is the person responsible for the management of such workplace, and the employer's duty is to provide a safe working environment at the workplace.
3. The aggrieved woman may or may not be an employee, but if the Respondent is an employee the employer must receive and conduct an inquiry [in the event conciliation under sec.10 fails].

Certainly, an employee of the organisation functioning at the workplace is covered under the Act, but the inclusive definitions of aggrieved woman, employer and workplace make it clear that the Act protects not only employees of the particular employer who runs his establishment at the workplace, but a woman of any age coming into contact with the workplace; further, the Act protects such aggrieved woman from not only the 'employees' at the workplace, but any person who may be there with the consent or permission of the employer or against the wishes of the employer.

For instance,

1. The Act would protect a female delivery person who is delivery tea at the Bar Council, who is harassed by either an advocate or an employee of the Bar Council.
2. The Act would protect a female client who comes to the Bar Council to make a complaint against her advocate, and faces harassment from one of the Bar Council members.

The Supreme Court in Initiatives for Inclusion Foundation v Union of India in WP(c)No. 1224/2017, on 19.10.2023 reiterated the directions in Aureliano Fernandes vs State of Goa [Civil Appeal No. 2482 of 2014] requiring hospitals, nursing homes, sports institutes, stadium, sports complex, competition, and games venues to establish internal complaints committees. In addition, the judgement directed [in para 77(iii)] that a similar exercise 'shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.' Interestingly, Aureliano Fernandes vs State of Goa was a case where the complainants were students of the University and not employees.

The Sexual Harassment Act should be read as widely as possible to protect all and any women coming into contact with the workplace and at risk from any of the men allowed or permitted to be in the workplace.

Institutional mechanism for redressal

Sexual harassment poses a serious threat to the credibility, integrity, functioning and reputation of an institution. Institutions that do not have a sexual harassment committee suffer from poor work culture, high rates of attrition and low motivation. The fear of sexual harassment, the spreading of rumours, micro-aggressive behaviours [often transforming into physical or verbal aggression and assault] sexually explicit conversations, jokes and innuendos, presence of inappropriate printed material and playing of videos or songs that are sexually explicit, prevent women, appropriately socialised men, children, transgender persons and persons who belong to sexual minority communities from entering a government of private office, stadium, game or performance venue, theatre or hospital/nursing home or police station with confidence and trust.

The fact that other remedies are available has been dealt with in the context of the Sexual Harassment Act, where the Act, itself states that, should the aggrieved woman wish to approach the police for filing a complaint, the employer should provide her with the required assistance. It is therefore, clearly a mechanism provided in addition to the other remedies under criminal law, in particular to provide the aggrieved woman with a confidential and non-judgemental panel before whom she may feel comfortable to disclose particulars of her complaint. Further, the institutional mechanism also provides for a small committee with an external member who is required to be knowledgeable in law, and issues relating to women. Such a panel is uniquely placed to understand the complex issues that arise when a woman steps out of her house to deal with a legal case or to earn a livelihood.

The Sexual harassment of Women at the Workplace Act in India establishes a strong institutional mechanism to address workplace sexual harassment. Confidential proceedings conducted by neutral, unbiased, fair and trained IC members will prevent complainants from filing complaints with the police or women's commission or taking the subject to the media.

Besides establishing the internal committee, the Act ensures that there is conspicuous display of posters prohibiting sexual harassment and providing information on redressal; and that there is periodic training and orientation provided to employees. It is necessary to see the Sexual Harassment of Women at the Workplace Act as not just protecting the women who come into contact with the workplace, but also to protect the workplace itself and those who work within. Well-trained and oriented persons will be alert and aware about their own conduct; and vigilant to either one of their own or a visitor engages in sexually harassing behaviour. Reporting misconduct will then be act for which the personnel should be complimented, which is as it should be.

Why should the Bar Council oppose the implementation of the Act

I have heard this several times - that complaints of sexual harassment have started only after the establishment of the Internal Committee; that women have been working in this company [or organisation] for decades and no complaint has come; that young women bring these new sensitivities to the workplace to avoid hard work and accountability; and that the fact that the committee is there is encouragement for women to file superficial, or malicious, complaints against senior co-workers.

In a court martial in which I was assisting the Prosecutrix – an armed forces officer, I was shocked to hear that the insistence of the lady officer in bringing the Respondent officer to justice, was actually 'spoiling the name' of the force and 'destroying the reputation' of officers who were laying down their lives for the country. Senior officers were unable to understand that the court martial would result in a workplace that was safe, and that when male officers would be well-informed about what was unwelcome behaviour, then the whole force would be more motivated and united.

The fear of institutions to provide institutional support to women stems from the fear of being held accountable for their conduct, and for failure to prevent harassment. Perhaps these institutions fear that their record of harassment, so far pushed under the rug, would now have to be published annually in returns to the District Officer.

The Bar Council of Maharashtra and Goa should have welcomed this opportunity to establish the Sexual Harassment Internal Committee within their premises and been eager to proactively comply with the provisions of the Sexual Harassment of Women at the Workplace Act, instead of shying away from their responsibilities to the women advocates registered on their rolls and other women who may have need or cause to visit their premises.

Author is an advocate, Madras High Court. 

Views Are Personal.