By Dr Swati Jindal Garg
It has been rightly said: “There will never be complete equality until women themselves help to make laws and elect lawmakers.” At a recent event, Chief Justice of India NV Ramana said that women in the legal profession face bias, both from their colleagues and litigants and this affects not just advocates, but also those on the bench. He said the same thing during a felicitation for Supreme Court judge Justice Hima Kohli by Women in Law and Litigation. He went on to say:
“There are various barriers that women face in the legal profession that merit consideration…the continued prevalence of certain attitudes about the role of women in society. This issue is a problem a woman faces regardless of the type of employment.”
The fact that gender bias exists and is now being recognised by all is a welcome step in the fight against inequality. Like all others aspects of life, law as a profession is taken up by both men and women. While the men end up fighting against their opponents, women have to face the additional task of not only fighting legal opponents, but tackling day to day bias. This is not only inherent in courts, but also among litigants and the entire set up. Such a bias creates an extremely unwelcome and unhealthy atmosphere within courts, and hence the chief justice reinstated that it was the duty of all lawyers and judges to ensure that a friendly environment is created in courtrooms.
The advent of the #MeToo movement and efforts being made by a segment of men has, in fact, encouraged the HeForShe movement aimed at gender equality. It has brought to light the glaring inequalities that women face both at the professional and personal fronts.
The chief justice has also been promoting the issue of women’s representation in the judiciary, and at a recent event, when asked about their under representation, said: “The demand for higher representation beyond 50% on the bench in view of the backlog of under representation of women is taken note of. I promise to take up your demand with my brothers in the collegium.”
India is known for its human resource wealth, but sadly, women are vastly under-represented in the judiciary. In High Courts, women comprise just 11.5% of the total number. Today, we have four women judges out of 33 in the Supreme Court. This figure is a striking example of the fact that women still have a long way to go before they can have a sound representation in the legal arena.
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At a felicitation function organised for Justice Hima Kohli, a Supreme Court judge, she said: “The time will never be right for women to make a mark in the legal profession.” She reminisced about how she had started her practice and how she used her car as an office space. Justice Kohli said:
“That time is now. Women have to make a conscious decision to start and not wait for the right time to come as the time will never be right.”
The legal profession in India has changed and come a long way to reach where it is today. While initially it was felt that women cannot plead before any court, much less High Courts, it was only after the enactment of the Legal Practitioners (Women) Act, XXIII of 1923 that women lawyers started practicing as a matter of right. But not all laws are easily accepted by society and even though women acquired the legal right to practice, there were still numerous challenges facing them.
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Alice Paul, the famous social reformer, rightly reportedly said: “The world will never be complete until women are a part of it.” Law as a field is also incomplete until it is adequately represented by women. Even though litigation has always been considered a noble profession, women were not its part till a considerable period. With the passage of time, ability and capacity, coupled with the opportunities, have increased, changing stereotypes.
Women today have proved their efficiency, tolerance, expertise and perpetuity in this profession. The representation of female law aspirants has gone up remarkably. The gender ratio in law universities has also become better and in favour of women. Some of the leading law firms in India are also showing a rising trend of gender equality on their boards.
On the downside are cases of gender bias that women face daily in this profession. One such example was given by Justice Leila Seth (the first women chief justice of a state who died in 2017): “When I asked a question and my brother judge pointed out to them that they (the male lawyers) should say My Lady, they thought the easiest way out was to say, My Lord and look at the male judge as if the question had emanated from him! Very rarely was I addressed correctly. Most of my brother judges, while introducing me to outsiders, would say, ‘Meet our new lady judge’, as if my sex was not apparent. They also wanted me to take on the tea arrangements when there was a celebration.” If the chief justice of a High Court is facing such a bias, then what must be the state of other women practicing law in the country?
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Most designated lady senior advocates also feel that resistance to women entering this club emanates from male insecurities. Ratna Kapur (Director of the Centre for Feminist Legal Research) reportedly said:
“If a man and woman have the same experience and merit when it comes to appointing senior advocates, then the woman should be given equal preference. This affirmative action will correct age-old institutional biases against women in the legal profession.”
Zia Mody (an eminent corporate lawyer and Founder of AZB &Partners) while sharing her experiences of the early days of practice in India reportedly said: “Those days were hard. There were hardly any women in court. The clients didn’t want women lawyers taking up their cases. It was stressful initially. I knew that my seniors as well as clients were not as confident of me as they were of my male counterparts.”
Senior advocate Mahalakshmi Pavani has also been raising her voice in the favour of adequate representation of women in the judiciary for a long time. She had the privilege of putting across her points for normalisation of structural bias and institutional discrimination against women in various cases that she argued before the apex court. She felt that diversity and representation has to be factored into the prevalent fabric in the higher judiciary in India.
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Female lawyers today face discrimination at work, be it pre-conceived notions of ability and aptitude, inequality of pay, unavoidable breaks in their careers owing to family requirements or denial of deserved promotions. All these factors go together to augment the harsh reality that most corporate organisations are unwilling to invest in their women employees and consider them unreliable.
Senior advocate Pinky Anand reportedly said:
“Women in litigation have it harder as they have to face clients, lawyers and judges, most of who are male, on a daily basis. In a way, they have to confront gender bias at several levels. If a woman raises her voice to make a point, she is seen as cantankerous, not assertive. At times, this perception overshadows her merit and results in her being labelled as aggressive.”
All said and done, it cannot be denied that women empowerment has well and truly taken steam and is now full-throttle. Female participation in the legal arena is commendable. The time has come when every legal professional should be judged on his or her ability and not on the basis of gender. As Justice Hima Kohli said: “That time is now….”
—The author is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all district courts and tribunals in Delhi