Vishaka Still Matters: Why the Bombay HC Judgment Misses the Mark

Advocates who have been harassed by Bar Council cannot avail to the Prevention of Sexual Harassment Act because no employer-employee relationship exists between the two parties. This is what the Bombay High Court held on July 7, 2025 in its judgment in .

The Association had sought directions against the Bar Council of India (BCI) and the State Bar Council of Maharashtra & Goa to form the Internal Complaints Committee (“ICC”) as given under Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH”). The High Court held that provisions of PoSH Act do not apply to the advocates since there exists no employer-employee relationship between the Bar Councils and the advocates. It further held that complaints if any intended can be dealt by disciplinary committee of Bar Councils under the Advocates Act, 1961.

The High Court's ruling has unleashed some uncertainty. The legal profession today faces some critical questions - If not the PoSH Act, then what? And how can the legal field be made a safe space for women advocates? And when grievances inevitably arise, where do they find recourse?

The issue before the Bombay High Court was of seminal importance. However, the High Court took a narrow view of the PoSH Act, examining its applicability through the lens of an employer-employee relationship. Due to this narrow interpretation, the full potential of the PoSH Act remains unrealised, as it effectively excludes a substantial number of working women, particularly women advocates, from its scope. Moreover, the reasoning of the Court is not in consonance with the judgements of the Supreme Court. To understand its far reaching impact, it is imperative to understand the history of PoSH Act.

Prevention of Sexual Harassment and its history in India  

Unlike most laws, the law relating to prevention of Sexual Harassment did not originate in Parliament. It was born out of judicial intervention. In 1992, a women activist was brutally raped in a village of Rajasthan. This horrific incident shook the collective conscience of the nation. It led to massive protests and demonstrations. It also led to filing of Writ Petition in the Supreme Court as class action. The Writ Petition sought the enforcement of the fundamental rights of working women under Articles 14, 19, and 21 of the Constitution.

For the first time, the Supreme Court was confronted with the task of addressing the pervasive issue of sexual harassment at the workplace. In its judgment in  (1997), the Court clearly expressed its intention to safeguard the rights of all working women, regardless of their workplace.

The Supreme Court laid down certain set of guidelines, which are called as “Vishaka Guidelines” to be followed in all work places. The Vishaka Guidelines had broad ambit. It intended to cover all working women. The Supreme Court took an expansive view of the term “working women,” extending protection to all women engaged in any form of work, irrespective of the nature or structure of their workplace. Essentially, the scope of Vishaka guidelines was never confined to traditional employer-employee relationships. The guidelines included a sunset clause, indicating that they were intended to remain in force only until suitable legislation was enacted. In essence, these guidelines were to continue protecting all women covered under the Vishaka judgment until they were superseded by a legislation which would provide equivalent protection.

Subsequent Developments Post - Vishaka

Nearly 15 years later, in  (2012), the Supreme Court again emphasized that the implementation of Vishaka should be true to its substance. The Supreme Court observed with concern that women lawyers lacked a proper grievance redressal mechanism. It directed the Bar Council of India to ensure that all persons registered with State Bar Councils, followed Vishaka Guidelines. In other words, the Bar Councils and the State Bar Councils were directed to incorporate Vishaka Guidelines. In the meanwhile, the PoSH Act was enacted in the year 2013.

In , the Supreme Court took serious note of a distressing incident reported in the media, involving allegations against an employee of the Delhi High Court who was accused of secretly filming women advocates in chamber toilets. Recognizing the severity the Supreme Court responded by establishing the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013, aimed at ensuring a safer environment for women advocates within its premises. In a similar vein, various High Courts have enacted their own regulations to enhance safety and uphold the dignity of women in their respective court precincts. Whereas several High Courts, such as those of Delhi, Patna, and Uttarakhand, have given a purposive interpretation to the PoSH Act and have accordingly adopted it.

In this backdrop, the Bombay High Court’s recent judgment is concerning. While it acknowledges both Vishaka and Medha Kotwal Lele, it falters to reconcile with the directions contained in those judgements. The High Court based its reasoning on the view that the enactment of the PoSH Act rendered the Vishaka guidelines redundant, given the sunset clause.

However, even, if PoSH Act is taken as not applicable. The Vishaka Guidelines still continues to hold field for all working women, who are otherwise not protected by PoSH Act. The sunset clause did not extinguish Vishaka’s light; it continues to shine, merely giving way to a legislative framework that upholds or surpasses its standards.  Where such a framework is found wanting or inapplicable, Vishaka continues. Compounding this, it has been suggested in the judgement that women advocates can pursue disciplinary remedies under the Advocates Act, 1961. However, these disciplinary rules lack safeguards, which Vishaka otherwise provides. In Medha Kotwal Lele, the Supreme Court dealt with a similar issue. The Court examined the Service Rules and found that they were incapable of handling complaints of sexual harassment. Consequently, government was directed to amend service rules and incorporate Vishaka Guidelines. 

In sum, even though the judgment primarily addresses advocates, the implications are far-reaching for all working women, extending well beyond the legal profession. It affects all working women who may not be working in the realm of traditional employer-employee model.

Consider gig workers for example. India has 7.7 million of them, yet legal recourse in instances of sexual harassment remains unclear. Companies call them "partners" instead of employees to avoid social security benefits, which also ends up taking away their rights under PoSH Act. As work patterns continue to evolve, it must follow with expansive interpretation of PoSH Act in line with Vishaka guidelines. Without which, it risks becoming irrelevant to the majority of women entering the modern workforce. Therefore, even though as per the High Court’s Judgement the women advocates do not have recourse to PoSH Act, but, any working women who is not covered under PoSH can still resort to Vishaka Guidelines and employer or other responsible person is duty bound to abide with the Constitutional mandate of providing safe work place.

(Views expressed are personal)

Dr. Anindita Pujari, Senior Advocate, Supreme Court

Shaileshwar Yadav, Advocate, Supreme Court

(Dr. Pujari has been elected twice as the Member of the Gender Sensitisation and Internal Complaints Committee of the Supreme Court to represent the Advocates on record association)