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.
This is not merely a matter of how we label the relationship. Courts have consistently held that the control test, supplemented by an economic reality assessment, determines whether employment exists. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra (1956), the Supreme Court identified the right to direct the manner of doing work as the primary criterion. In Silver Jubilee Tailoring House v. Chief Inspector of Shops (1973), it distinguished employees from independent contractors by reference to integration into the employer's organisation.
A woman advocate practicing at the Delhi High Court and paying her Bar Association dues satisfies neither criterion. She works for her clients, sets her own hours, manages her own cases and earns from her own practice. The Association is incidental to that work, not responsible for it.
The junior advocate working in a senior's chamber is a harder case and deserves closer attention. The relationship resembles employment: the junior attends chambers, works under the senior's supervision, takes briefs that the senior routes to her, and often depends on the senior for professional introductions and referrals. Many juniors do not receive a fixed salary but instead work for a nominal stipend. Despite these features, courts have not treated chamber arrangements as employment contracts. The Supreme Court's ruling in Aureliano Fernandes v. State of Goa (2023), while not directly on this question, emphasised that substantive POSH compliance requires an identifiable employer at each stage of the Act's mechanism. Extending that logic to characterise a senior advocate as an employer for POSH purposes is not impossible, but it would require a significant departure from settled employment law categories and would raise its own complications, particularly where the 'employer' is himself the alleged harasser.
Can Bar Bodies Be Treated as ‘Employers’?
A purposive argument might be made that Section 2(g) should be read to encompass Bar Associations, at least in relation to activities occurring within the spaces they manage. Bar Associations provide physical infrastructure, regulate access to their premises, and exercise a degree of institutional authority over members. Could a court hold that, for POSH purposes, the Association is the relevant 'employer' for events occurring on its premises?
The argument encounters two difficulties. First, Section 2(g)(iii) requires a government notification specifying the relevant officer. The clause is not self-executing. A court that reads bar body officials into the definition of 'employer' in the absence of any notification is not engaged in purposive construction. It is performing the executive function that Parliament assigned to the government. That is a separation of powers problem, not a minor textual one.
Second, and more importantly, even a bar body deemed an employer for definitional purposes cannot discharge the operational obligations the Act places on employers. Section 13(3) empowers the ICC to recommend termination, withholding of promotion or deduction from wages. A Bar Association can do none of these things. It might cancel membership, but membership cancellation does not affect an advocate's right to practice. Enrolment is with the Bar Council. The right to appear in court flows from that enrollment, not from membership of any voluntary association.
This exposes the deeper structural mismatch: the Act assumes an employer who controls the respondent's livelihood and can therefore enforce accountability. Bar bodies, even those with some disciplinary authority like Bar Councils, work through the separate and considerably slower machinery of the Advocates Act. They cannot implement a POSH finding within the sixty-day window that Section 13 requires.
The Advocates Act Framework
Bar Councils do have jurisdiction over professional misconduct under Sections 35 and 36 of the Advocates Act. The Vishaka judgment (1997) itself recognised harassment as a violation of the fundamental right to work with dignity, and there is no good reason why conduct that violates a constitutional right should fall outside the scope of professional misconduct for members of a profession whose entire claim to public trust rests on upholding the law. Some state bar councils have taken this view in individual cases.
The Bar Council of India’s POSH Compliance Guidelines, brought out earlier this month, acknowledge the prevailing of sexual harassment in the legal profession and detail the procedure for adjudicating sexual harassments in organisations within the legal profession
When placed alongside POSH's protections, the Advocates Act framework shows significant gaps. Disciplinary proceedings are slow. Cases before state disciplinary committees can remain pending for years without any obligation of time-bound resolution. More seriously, the Advocates Act offers no protection to the complainant during the pendency of proceedings. POSH's Section 9 expressly prohibits adverse action against a woman who has filed a complaint. Section 12 empowers the ICC to recommend interim measures, including transfer of the respondent or grant of leave to the complainant. Nothing comparable exists in Advocates Act proceedings. A woman advocate who files a disciplinary complaint may find her professional standing damaged while the matter drags on, with no institutional mechanism to protect her in the interim.
There is also interpretive uncertainty about the scope of 'professional misconduct'. Some decisions have read the term to require conduct connected to the actual performance of legal work. On that view, harassment occurring in a social or semi-professional context might not qualify. The Supreme Court's observation in R.D. Saxena v. Balram Prasad Sharma (2000), that an advocate's duties encompass broadly ethical conduct, provides some support for a more expansive reading, but this remains contested. A woman advocate should not have to litigate the scope of professional misconduct as a precondition to getting her complaint heard.
The LCC Route: Theoretically Available, Practically Inadequate
If junior advocates could be characterised as ‘workers’ in the unorganized sector, given the informality of their working arrangements, the LCC under Section 6 becomes a potential forum. The LCC has powers equivalent to those of an ICC. It can conduct an inquiry, record findings and make recommendations.
The LCC is constituted at the district level by the District Officer. There is no requirement that its members know anything about the legal profession, its conventions or its power dynamics. Its report, like that of an ICC, is addressed to the employer or service provider. In the context of a harassment complaint against a senior advocate, there is no employer to whom the LCC's findings can be directed. The junior would need to take that LCC report and separately initiate a disciplinary complaint before the bar council, effectively requiring her to run two independent processes to obtain one substantive outcome. The statute does not create any bridge between an LCC finding and bar council proceedings.
The Supreme Court in Medha Kotwal Lele v. Union of India (2012), directed states and union territories to ensure that LCCs were properly constituted and functional. Compliance across states remains uneven. More to the point, that direction was concerned with ensuring the LCC worked adequately for the unorganized sector for which it was designed. It said nothing about whether the LCC is an appropriate or sufficient forum for harassment complaints within the legal profession.
Possible Solution
The gap is real, but it is not irreparable. Two distinct legal pathways exist for reform, each operating through a different statutory vehicle.
The first runs through the POSH Act itself. The residual clause in Section 2(g)(iii) empowers the appropriate government to notify designated officers as 'employers' for workplaces not otherwise covered by the definition. The Central Government, which has jurisdiction over the BCI and Supreme Court-level bar bodies, could notify that the Secretary of each Bar Association is the designated employer for POSH purposes. A carefully drafted notification could address the enforcement gap by requiring the notified employer to refer ICC findings to the relevant Bar Council as formal professional misconduct complaints, binding the Bar Council to treat such referrals as triggering its Section 35 jurisdiction. The statutory hook exists. It has simply not been used.
The second pathway runs through the Advocates Act. Section 49(1)(c) empowers the Bar Council of India to make rules prescribing standards of professional conduct and etiquette. This is a broad power and it is the more promising route, because it works within the regulatory architecture the profession already understands rather than forcing bar bodies into a framework designed for conventional employers. The BCI could frame rules requiring, first, all Bar Associations to constitute Complaints Committees with POSH-equivalent composition and procedure; second, sexual harassment between advocates or between an advocate and any person in a professional context to constitute professional misconduct per se, without requiring proof of any additional connection to the practice of law; and third, a Complaints Committee finding to be forwarded directly to the relevant state bar council as a complaint that triggers Section 35 proceedings, with the bar council obliged to take it up within a specified period. This closes the enforcement loop without requiring any amendment to either the POSH Act or the Advocates Act.
The two pathways are not mutually exclusive. A Section 2(g)(iii) notification would embed the obligation in the POSH framework and bring bar bodies within the Act's penalty provisions. BCI rule-making would embed it in the disciplinary culture of the profession. Ideally, both should happen.
Conclusion
The POSH Act's failure to protect women advocates is not a gap that courts can close through generous interpretation. The employment relationship is load-bearing in the Act's design. Without it, the ICC mandate, the implementation obligation and the enforcement penalties all lose their operative footing. There are limits to what purposive construction can do, and manufacturing an employer where none legally exists is beyond them.
What is required is deliberate action from the state, through a notification under Section 2(g)(iii) of the POSH Act, or through rule-making by the Bar Council of India under Section 49(1)(c) of the Advocates Act, or through both. The tools have been available since the Act came into force in 2013. We have not used them. That is not a legal incapacity. It is a choice. And it is a choice that falls most heavily on the women who enter the profession with the least institutional protection and the greatest dependence on the goodwill of those above them.
