Invisible Harassment of Woman Advocates in India: How Does the Posh Act Fails to Address It?

ABSTRACT:

This short article focus on the legal and institutional contradiction faced by women advocates in India, despite being sensitive to sexual harassment, is effectively deprived of Security under the sexual harassment (prevention, prohibition and prevention) Act, 2013 (POSH Act) at the workplace. Although the POSH Act 2013 was implemented to ensure a safe work environment for all women, its application is based on the employer-employee relationship, a structure that excludes independent female advocates. The study analyses the implications of the Bombay High Court’s 2025 UNS Women’s Legal Association vs. Bar Council of India & Ors judgement, which talk about that the Posh Act does not apply to advocates as there is no formal employer-employee relationship with Bar Council of India.

The decision, which recast the complaints of sexual harassment towards existing disciplinary mechanisms under the Advocates Act 1961, presents an insufficient, indifferent and vague measures to the subtle and trauma-sensitive issue of sexual harassment. The article highlights the social-natural results of this difference, including its negative impact on reporting, confirmation of the culture of punishment in the legal fraternity, and its widespread social implications on justice and equality. The article is concluded by proposing legislative and institutional reforms to ensure that women lawyers in the form of essential columns of justice system are provided legal protection against other working women against sexual harassment.

Keywords: POSH Act 2013, workplace, women, Advocates Act 1961, ACC

1. INTRODUCTION:

The Paradox of Protection in the Legal Profession

The fight for gender justice in India reached a legislative high point with the enactment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Implemented to actualize the constitutional promise of dignity, equality, and a safe working environment, the POSH Act was designed to be a comprehensive legal shield for working women across the nation. However, a significant legal and institutional contradiction has emerged at the heart of India’s justice system: women advocates, who serve as essential pillars of the judiciary, are effectively deprived of this statutory security.

This systemic exclusion is rooted in the Act’s reliance on the employer-employee relationship as the jurisdictional basis for its application, a structural definition that fails to cover independent legal professionals. The contradiction was starkly illuminated by the Bombay High Court’s 2025 judgment in UNS Women’s Legal Association v. Bar Council of India & Ors, which ruled that the POSH Act does not apply to advocates because their relationship with the Bar Council of India (BCI) is not one of employment

• The Historical Foundation and Evolution of the POSH Act

The POSH Act did not emerge in a legal vacuum; it is the culmination of a decades-long struggle by women’s rights movements to secure dignity and safety in public and professional life. Its genesis lies in a singular, defining tragedy that catalyzed judicial and legislative action.

[2.1] The Genesis: The Bhanwari Devi Case (1992)

The foundation for the POSH Act was laid by the brutal gang rape of Bhanwari Devi, a social worker in Rajasthan. In 1992, while working under the state’s Women’s Development Programme, she attempted to prevent a child marriage, leading to her subsequent assault by men from the community. When the trial court acquitted the accused due to societal bias and a failure of the systemic response, it highlighted the profound legal vulnerability of women challenging patriarchal norms in the workplace. Women’s rights organizations responded by filing a Public Interest Litigation (PIL) under the collective name “Vishaka” in the Supreme Court.

  [2.2] The Landmark Vishaka Guidelines (1997)

The resulting judgment, Vishaka v. State of Rajasthan became a watershed moment in Indian jurisprudence. The Supreme Court recognized that sexual harassment at the workplace violated the fundamental rights guaranteed under the Indian Constitution, specifically:

Article 14: Right to Equality.

Article 15: Prohibition of Discrimination.

Article 19(1)(g): Right to practice any profession or to carry on any occupation, trade or business.

Article 21: Right to Life and Personal Liberty (which includes the right to a life of dignity and a safe working environment).

Crucially, the Court drew inspiration from international law, particularly the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India had ratified in 1993. Since no specific domestic legislation existed to address workplace sexual harassment, the Supreme Court utilized its powers under Article 32 of the Constitution to lay down a set of mandatory “Vishaka Guidelines” for all workplaces. These guidelines were binding until Parliament enacted a suitable law.

[2.3]. Pre-POSH Legal Framework and its Limitations

Before the Vishaka Guidelines and the subsequent POSH Act, victims of workplace sexual harassment had extremely limited legal recourse. They could primarily invoke general criminal provisions under the Indian Penal Code (IPC):

Section 354: Criminal assault or use of force on a woman with the intent to outrage her modesty.

Section 509: Act intended to insult the modesty of a woman.

These provisions were inadequate because they:

Criminalized only specific acts: They failed to address the spectrum of non-physical harassment that constitutes a hostile work environment.

Lacked a preventive framework: They offered no institutional or structural mechanisms (like mandatory committees or internal policies) to prevent harassment from occurring.

Shifted the burden: They often placed the burden on the victim to prove “outraging modesty” rather than on the organization to provide a safe workplace.

The need for a dedicated, comprehensive, and preventive piece of legislation was thus established, culminating in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

• Statistical Analysis: The Impact of POSH Implementation

The implementation of the POSH Act in 2013 represented a paradigm shift in how workplace sexual harassment was addressed, moving from a reactive criminal justice response to a proactive organizational and civil compliance framework. Statistical data confirms both the initial success of the Act in encouraging reporting and the persistent challenges in achieving full compliance and resolution

[3.1] The Rise in Reporting

Data from major Indian companies shows a clear trend: once the POSH Act was implemented, reporting went up dramatically, showing that the law gave women the confidence to speak up.

• Before POSH (FY 2012-13): Only about 71 cases were reported across many top companies.
• After POSH (FY 2014-15): The number of reported cases jumped to 465, showing a huge increase.
• Recent Trends: By FY 2022-23, reported cases continued to rise significantly, showing the law is being actively used.

[3.2] The Challenges Remain

Despite more reporting, the POSH Act faces two major challenges:

1. The Resolution Gap: Even though many cases are reported, only about 50% of them are fully resolved within the set timeframe. This suggests that the process can be slow or ineffective.
2. The Small Company Problem: Almost all reported cases come from large, established companies. Many medium and small companies report zero incidents year after year, which is highly unlikely. This means many smaller workplaces are either not following the law by setting up ICCs or are successfully covering up cases. This shows the law’s reach is incomplete.

• The Exclusion: Why Women Advocates Are Not Covered

The biggest issue for women lawyers is the “employer-employee” requirement, which is the foundation of the POSH Act.

[4.1] The Legal Problem: Independence vs. Employment

The POSH Act places the responsibility for safety and the ICC on the “employer”. Women advocates are independent practitioners licensed under the Advocates Act, 1961. They are regulated by the Bar Council of India (BCI), but they are not employed by the BCI, the courts, or Bar Associations.

Since the formal employer-employee relationship does not exist, the BCI is not legally required to set up an ICC under the POSH Act.

[4.2] The Bombay High Court’s 2025 Judgment

This issue came to a head in the Bombay High Court’s 2025 ruling in UNS Women Legal Association v. Bar Council of India. A group of women lawyers asked the court to order Bar Councils to form ICCs to handle sexual harassment complaints.

The Court’s Decision: The Court agreed that because there is no employer-employee relationship between the Bar Council and the advocates, the POSH Act does not apply to the Bar Council.

The Alternative: The Court suggested that women advocates must use the existing disciplinary mechanism under Section 35 of the Advocates Act, 1961. This mechanism allows Bar Councils to take action against lawyers for “professional misconduct.”

[4.3] Why the Alternative is Inadequate

The Court’s suggestion to use the disciplinary mechanism is highly criticized because it does not work for sexual harassment cases:

Different Focus: Section 35 of the Advocates Act is about a lawyer’s professional conduct (like lying in court or stealing client money). It focuses on punishment, not on the victim’s safety and support.

Lacks Sensitivity: POSH committees are required to have a majority of women members and an expert external member to ensure a fair and sensitive process. Disciplinary committees are often run by senior (usually male) members of the Bar Council and are not trained to handle trauma-sensitive sexual harassment issues.

Lack of Specific Relief: Disciplinary action can lead to a reprimand or suspension. It cannot offer the specific, sensitive support that the POSH Act provides, such as granting the victim paid leave or transferring the harasser to another chamber.

In short, using Section 35 is like using a sledgehammer for a delicate procedure—it lacks the specialized, victim-focused process needed for sexual harassment cases.

5. Consequences: The Cost of Exclusion

Excluding women lawyers from POSH Act protection has serious consequences for them and for the entire legal system.

[5.1] The “Hidden Crisis” in Law

Sexual harassment is widely reported in the legal profession globally, mainly because the profession is often hierarchical (based on seniority) and male-dominated.

• High Rates: Studies show that a significant percentage of female lawyers experience sexual harassment in the workplace.
• Culture of Silence: When there is no effective mechanism, women lawyers fear career destruction if they complain. They worry that their seniors (who might be the harasser or friends with the harasser) will block their future opportunities. This fear leads to underreporting and maintains a culture of silence.

[5.2] Impact on Justice

Women advocates are key parts of the justice system. When they are not protected:

• Gender Gap: Many women leave the profession early because of harassment and the lack of support. This worsens the gender disparity in the legal field, especially at senior levels and in the judiciary.
• Undermining the Constitution: Denying them the protection given to other working women violates their fundamental rights to equality and a life of dignity (Articles 14 and 21).

6. Recommendations: How the Law Can Be Changed

To fix this legal and institutional contradiction, changes must happen at three levels: in the law itself, in the Bar Councils, and in the Supreme Court.

[6.1]. Legislative Reform (Change the POSH Act)

Parliament must amend the POSH Act to make it inclusive:

1. Broaden “Workplace”: Clearly state that the definition of “workplace” includes all professional settings, such as courts, chambers, and Bar Association premises, regardless of a formal employment contract.
2. Define a New Relationship: Introduce a new category of relationship, such as “professional/regulator” or “service receiver/service provider,” to replace the strict employer-employee requirement. This would make the regulatory body (the BCI) responsible for safety.
3. Create Professional-Specific Rules: Add special clauses to the Act that mandate professional regulatory bodies (like Bar Councils) to establish POSH-compliant committees for their registered members.

[6.2]. Institutional Reform (Change the Bar Councils)

The BCI and State Bar Councils must act immediately:

1. Mandatory ACC Formation: They should be forced to create Apex Complaints Committees (ACCs) that follow all the guidelines of the POSH Act (gender-balanced, external member, time-bound inquiry).
2. Training and Sensitization: All members of the ACCs and Disciplinary Committees must receive mandatory training on gender sensitivity and handling sexual harassment cases.
3. Confidential Reporting: Set up systems that allow women to report harassment confidentially without fear of their career being damaged.

[6.3]. Judicial Intervention (Supreme Court Review)

The Supreme Court, which is currently reviewing the Bombay High Court decision, has a chance to set things right:

• The Supreme Court can use its power to interpret the POSH Act broadly to include all professional women, arguing that the spirit of the law demands protection for everyone.
• Alternatively, it can order the BCI to immediately set up a mechanism that is equivalent in power and protection to the POSH Act’s ICCs, thereby enforcing the constitutional right to a safe workplace.

7. Conclusion

The exclusion of women advocates from POSH Act protection is a major weakness in India’s gender justice framework. This gap, based on a technical reading of “employer-employee,” leaves a group of essential professionals exposed to harassment. The inadequacy of existing disciplinary methods means the legal profession falls short of its fundamental duty to ensure justice and dignity for all its members. Comprehensive reforms are urgently needed to extend the law’s safety net to all women who contribute to the nation’s legal system.