Author: Shah Um E Habiba

Workplace harassment has become a critical concern in modern India. The Prevention of Sexual Harassment of Women at Workplace Act, enacted in 2013, was designed to protect women from harassment in their professional environments. However, recent court decisions have raised important questions about where the boundaries of this protection lie, particularly when it comes to professional associations like bar councils and trade unions.

The Kerala High Court recently examined whether a bar association qualifies as an employer under the POSH Act. This ruling has significant implications for understanding how workplace safety laws apply to different types of professional organizations. For the common person, this decision helps clarify which institutions are responsible for ensuring safe working environments.

What is the POSH Act?

The POSH Act was created to protect women from sexual harassment at their workplace. The law requires every organization with ten or more employees to set up an Internal Complaints Committee. This committee is responsible for receiving complaints, conducting inquiries, and recommending appropriate action when harassment occurs.

The Act defines workplace broadly to include not just traditional offices, but also places visited during employment, such as client sites or transportation provided by the employer. The fundamental purpose is to ensure that women can work in environments free from harassment, intimidation, or hostile behavior.

For an organization to fall under the POSH Act, there must be an employer-employee relationship. This means someone must have the authority to hire, fire, pay wages, and control the work of others. This traditional understanding of employment has now been tested in the context of professional associations.

The Bar Association Ruling

In early 2026, the Kerala High Court delivered an important judgment regarding bar associations and the POSH Act. The court held that a bar association does not qualify as an employer under the Act. This decision was based on the nature of professional associations and how they differ from traditional workplaces.

Bar associations are voluntary organizations formed by lawyers to promote their professional interests and maintain professional standards. Members of these associations are independent practitioners who are not employed by the association. They pay membership fees, elect office bearers, and participate in association activities, but there is no employer-employee relationship.

The court reasoned that since the association does not hire lawyers, pay them salaries, or control their professional practice, it cannot be considered their employer. Each lawyer operates independently, maintains their own practice, and serves their own clients. The association merely provides a platform for collective representation and professional development.

What Makes Someone an Employer?

The concept of employer has specific legal meaning. An employer is someone who has the power to hire and dismiss workers, determine their wages, control their working conditions, and direct how they perform their duties. This relationship is characterized by dependency and subordination, where the employee relies on the employer for livelihood and follows their instructions.

In contrast, professional associations operate on principles of voluntary membership and collective interest. Members join these associations to advance common goals, share resources, and maintain professional standards. There is no hierarchical structure where the association controls individual members in the same way an employer controls employees.

This distinction is crucial because it determines which organizations must comply with the POSH Act requirements. If an association has even a few paid staff members, such as office assistants or secretaries, then it must establish a complaints committee for those employees. However, the association need not do so for its voluntary members who are independent professionals.

What Does This Mean for Professionals?

This ruling creates an important distinction between protection available in traditional workplaces and that available in professional associations. Women who work as employees in companies, hospitals, educational institutions, or government offices are protected by the POSH Act. However, women who are independent professionals participating in voluntary associations may not have the same institutional protection mechanism.

This does not mean that harassment within professional associations is acceptable or legal. Other laws still apply, including provisions of the Indian Penal Code that criminalize sexual harassment and assault. Additionally, professional regulatory bodies like the Bar Council have their own codes of conduct and disciplinary mechanisms to address misconduct by members.

The ruling highlights a gap in institutional mechanisms for addressing harassment among independent professionals. While employed women can approach their Internal Complaints Committee, independent professionals must rely on criminal law enforcement or professional disciplinary proceedings, which may be less accessible or effective.

The Changing Nature of Work

The modern workplace is evolving rapidly. More people work as independent contractors, freelancers, consultants, and gig workers rather than traditional employees. Professional associations, industry networks, and collaborative spaces have become important venues for professional interaction, yet they often fall outside traditional employment law frameworks.

This evolution raises important questions about how to protect workers in these new arrangements. Should professional associations be required to establish grievance mechanisms even if they are not technically employers? Should there be separate regulations for harassment in professional settings that do not involve traditional employment?

Some countries have expanded their harassment laws to cover a broader range of professional relationships beyond traditional employment. India may need to consider similar reforms to ensure that all professionals, regardless of their employment status, have access to effective mechanisms for addressing harassment and maintaining safe professional environments.

Moving Forward: Practical Solutions

While the law currently limits POSH Act application to employer-employee relationships, professional associations can voluntarily adopt policies to prevent and address harassment. Many progressive associations have already established their own codes of conduct, complaint mechanisms, and disciplinary procedures that go beyond legal requirements.

These voluntary mechanisms can include designated ethics committees that receive and investigate complaints, clear guidelines on acceptable professional behavior, and transparent procedures for addressing violations. By taking proactive steps, associations can create safer environments for all members without waiting for legal mandates.

Additionally, individual professionals have a responsibility to maintain respectful conduct and speak up against harassment when they witness it. Professional culture is shaped not just by formal rules but by the collective commitment of members to uphold dignity and respect in their interactions.

Conclusion

The Kerala High Court ruling clarifies that professional associations, being voluntary organizations without employer-employee relationships, do not fall under the mandatory requirements of the POSH Act. This decision reinforces the principle that workplace safety laws are tied to employment relationships characterized by dependency and control.

However, this legal boundary should not create safe havens for harassment. As the nature of work continues to evolve, there is a growing need to ensure that all professionals, whether employees or independent practitioners, have access to safe and respectful working environments. This may require both legal reforms and voluntary initiatives by professional associations.

Understanding these distinctions helps professionals know their rights and the avenues available for addressing grievances. It also highlights areas where current laws may need strengthening to keep pace with changing professional realities. Ultimately, creating safe workplaces and professional spaces requires not just legal compliance but a collective commitment to dignity, respect, and accountability.