Chennai: When a female senior advocate faltered with her arguments last week at the Madras high court, the judge asked her if she had had a busy morning in the kitchen that day. The entire court hall laughed at the supposed witticism.
A human rights advocate with 20 years of experience, was appearing before the Karnataka high court in a saree. She was wearing the lawyer’s band as per the Bar Council rules. One of the judges on the division bench asked her why she wasn’t wearing the collar along with the band. The rules do not stipulate the collar and the advocate, who wanted to remain anonymous, pointed this out. The judge turned to the other judge and grimaced in open court, “Ye kya pehen ke aa jaate hai, sab kuch dikhate hai.” (Look at their revealing clothes.)
“What business he had looking at my neck, is beyond me,” says the advocate.
On International Women’s Day, Indira Jaising, the first woman additional solicitor general, wrote an open letter to the Chief Justice of the country on casual sexism in courts, asking him to step in and formulate rules against it. During the proceedings of a case, in which she was petitioner and her husband Anand Grover her counsel, she was referred to as “wife” rather than by her name or as counsel by a senior male lawyer. This had triggered the letter.
Overt and covert
Sexism, women advocates say, manifests both overtly and covertly. Mansplaining and infantilism to downright sexual harassment, misogyny in the annals of justice come in all hues. In interactions with other lawyers, judges, judicial administrative staff and clients, women lawyers strategise and negotiate sexism on an everyday basis.
“Women’s clothing, marital status and professional success are commented upon in courts by all the players. It is so ingrained and naturalised, they don’t even know it is derogatory. They cannot tell the difference between humour and sexist remarks,” says Selvi Palani, an advocate of the Madras high court.
“Judges and male colleagues patronise us and take it upon themselves to coach us,” says Ninni Susan Thomas, a lawyer with Project 39A at National Law University, Delhi. The general sentiment is that women are less competent to make arguments before the bench. “I have been told to come back with a male or senior colleague for the next hearing by a judge, even before hearing my submissions,” recounts Deepa Moondra, a lawyer in Jaipur.
“Male counsels have sniggered and giggled in open court while women lawyers are in the middle of a serious argument and judges have condoned this behaviour,” the advocate who has 20 years of experience says. If a lady advocate did that, she would be shown her place, she adds. In lower courts too, parties indulge in such behaviour with no consequences.
Women have to be assertive while interacting with the administrative staff of a court to be taken seriously. “My male colleagues ‘work their charm’ with the court staff and get procedural work like filing, getting copies of the order and photocopying in the library done. I, on the other hand, have to put up a tough front for the same work,” says Moondra.
Clients also reluctant
“Clients also hesitate to engage women lawyers. They don’t repose faith in your competence. They look to male advocates for validation,” says Thomas. It is frustrating that a male has to constantly validate our competence, she adds.
Persistence and proving one’s mettle eventually gets them their due respect, says Sudha Ramalingam, a senior lawyer at the Tamil Nadu bar. “If we go about our job professionally, we will get favourable orders and clients will trust us,” says Sheila Jayaprakash, another senior lawyer.
“The bar is higher for us. Why is winning the measure of our success? Why can we not get our due for merely qualifying the bar, like men?” asks Priyam Lizmary Cherian, one of the advocates in the Navtej Singh Johar case that decriminalised homosexuality.
“Even if we have prepared the briefs and researched the case, a male colleague will be sent to argue because the opposite counsel is more likely to feel threatened by him than me,” says Moondra. Owing to the inherent bias against women, they are simply not given enough opportunities. “Many law chambers do not take women juniors as a rule,” says Cherian.
One such office in Chennai said ensuring safety of women lawyers, considering that the office deals with criminal cases, was an added burden that they did not want to take on. Another office in Jaipur said its women lawyers deal only with family law cases for the same reason.
“I don’t want to be protected and accommodated. I want to be there because I am qualified,” says Anubha Rastogi, criminal prosecutor for SEBI, based in Bombay. Every day at 11 am at the Bombay high court, lawyers queue up to mention and get listed matters of urgency. Customarily, women are allowed to make their mentions first, to prevent them from getting pushed and touched. The same court has very few women urinals. “It is as if the system is telling me that I don’t belong here, that I am being accommodated,” Rastogi adds.
Vast gender gap
Currently, there are 17 women senior counsel designates in the Supreme Court as opposed to 403 men. The Delhi high court has 229 men and eight women senior counsel designates. There are six women and 157 men designates in the Bombay high court. Unless advocates have appeared in high stakes matters, they don’t get noticed and hence won’t get designated as senior counsels. “Because women aren’t entrusted with substantial work, they remain invisible. They remain juniors despite 20-30 years of experience or are relegated to minor tasks like getting an adjournment,” says Thomas.
The profession of litigation, like other professions, saw an increased entry of women since the 1990s. The current ratio of women practitioners to men though is still lacking. The table below gives these numbers.
The paltry numbers percolate into the number of women judges too, since lawyers in most cases are the ones elevated to positions of Justices. The Supreme Court has three women judges and 24 men. The Delhi high court has seven women Justices and 30 men. In the Bombay high court, nine women, 62 male judges; Karnataka high court: three women, 28 men. The Madras high court has the most women occupying the judges’ chair, with ten women out of a total of 58.
Note: Data for UP is for the years 1946-2016, Maharashtra for 1934-2016, Tamil Nadu for 1949-2012 and MP for 1968-2016. The names of women advocates in the states of Tamil Nadu and Maharashtra did not have suffixes (Mr/Ms/Smt/Kum), and thus data was compiled with reliance on conventional gender names. The numbers thus, may have a variance of +/- 50.
Women who excel despite the barriers are talked about as having curried favours, says Naina Saraf, a lawyer practising in Jaipur. “If I have a pretty face and get a favourable order, rumours start flying,” she adds.
Rajeshwari S., an advocate from Bangalore backs this up. “I have been told, in apparent jest, to ‘just flash the judge a smile’ to get a favourable order.” Both these women have been asked intruding personal questions and unwelcome advances have been passed at them. “I maintain a policy of one-arm distance from everyone in courts. But not all women can deal with this and they simply move out of litigation,” says Rajeshwari.
As can be seen in the above table, the gender gap is huge. Despite increased women participation, the numbers are still meagre. Professional requirements and demands, coupled with societal expectations act as inherent barriers for women. “One has to invest at least 12 hours every day to survive in the field. It doesn’t enable a family life in the traditional sense,” says Tanvi N.S., a lawyer from Chennai.
Taking on conventional roles
It leads to automatic exclusion if a woman wants to take on the conventional roles expected of her, she adds. It thus becomes easier for a man to survive the field. Jayaprakash, who has 40 years of practice, says, “One has to put in sweat, blood and tears into the profession to excel. Not all women can do it,” and maintains that litigation is just as hard as any other profession for women.
Women negotiate this hostility by always being on the defensive. “Even senior women lawyers who are so sure of themselves, are always prepared to get on the defensive,” says Thomas.
“If women get even slightly assertive about their case, the judges push back. But if a male lawyer gets aggressive, he is lauded as valorous,” says Tanvi. “The profession itself demands such aggressive performances. But if a woman breaks from the stereotype of being meek, she is immediately attacked,” she adds.
Women are labelled “difficult” and “troublemakers” for being aggressive, says Palani. “I don’t want to deal with the flak I will get for being loud and aggressive, so I over-compensate with extra research,” says Moondra. “If your arguments are good, why do you have to be aggressive?” says Jayaprakash. A male advocate though would get by with much less, owing to the performative nature of the profession.
How a male advocate approaches the bench is very different from how a woman can. “Men crack jokes during a proceeding and create a subconscious bonhomie. They get a few laughs from everyone. I may want to crack a joke too and be witty, but I am not sure how I will be received and this anxiety prevents me from digressing,” says Palani.
The importance of socialising
Socialising with the legal fraternity, both inside and outside court premises, is important for professional growth. “Locker-room conversations increase visibility. The more you socialise, better your prospects of getting referrals and landing a client,” says Vaishnavi Vishwanathan, an advocate in Delhi.
Advocates on Record, necessary to file a case at the Supreme Court, are almost always your friends, she adds. Another advocate said that one’s popularity in the legal fraternity and thus their implied expertise in a particular field of practice, would influence a judge’s choice of amicus curiae and court commissioner appointments. Thus, if women do not socialise and be “out there,” they lose out on some opportunities.
Kiruba Munusamy, a Supreme Court advocate recounts an incident when an inexperienced but popular lawyer (in legal circles) was called to deliver a lecture at the Bar Council of Delhi. “After the lecture, his clientele increased. That is why visibility is important.”
But women, especially those who have conventional familial obligations to fulfil, cannot afford the time to indulge in socialising, says Tanvi. Pranjal Mehta, a Chennai-based lawyer says, “I would want to exclude myself from the flippant conversations that men around me in the profession engage in. I find it sexist and offensive.” And if women do socialise, they are labelled as loose and available, says Saraf.
However, there is a marked change in how the younger generations of lawyers are interacting in the profession. “Boys and girls are more comfortable in each other’s presence now,” says Palani. “I think twice before going to a judge’s chambers even with a valid reason, but young lawyers are more forthcoming. Like many men from my generation, younger men and women also don’t harbour such hesitations now,” she says.
Creating awareness and sensitising people
Advocates say that calling out instances of sexism, casual and otherwise, then and there will create awareness and sensitise people. One must begin by acknowledging that the problem exists, she says. But Maitreyi Krishnan, an advocate in Bangalore, says that the legal profession is very defensive to confrontation and thus, this calling out becomes difficult. “There are strict hierarchies in the profession. Talking back to your senior and arguing with a judge are considered transgressions and they can have repercussions on your practice. So, you cannot judge a woman for not calling out,” she says.
Legal pragmatism also stops women from addressing sexism. “We subconsciously pick our battles. I will compromise on my principles and maybe not react to a sexist joke, simply because that will not hamper the prospects of my case whereas speaking up might,” says Thomas.
The judicial system is one of the most authority respecting institutions. It has well entrenched hierarchy and power relations. “To be visible, one has to imbibe and exude these relations,” says Anandhi S., a professor who teaches gender, caste and identity politics at the Madras Institute of Development Studies. The black and white attire, wearing a collar/band and using “My Lord” to address the judge are symbols through which the institution energises itself, she adds.
On April 3 this year, the registrar of the Allahabad high court issued a circular “directing [judicial] officers/officials to stop whenever they see that the Hon’ble Judges are passing through the galleries [meant for the judges’ movement] and pay highest respect to Their Lordships.”
“This is sheer display of power which serves no other purpose but to control and regulate. And power itself is a patriarchal notion, embedded in gendered transactions,” Anandhi says.
Gender sensitivity cannot be practiced unless these power structures, so ingrained in the judiciary, are overhauled and questioned, she says.
Calling out sexism is also impeded by institutional limitations. A lawyer can be an active feminist outside the court and yet argue that marriage is a sanctimonious institution in a court hall. “These contradictions emerge from the institutional control of language. Language is a strategy adopted by these women lawyers to be visible. This complex transaction is their way of ensuring that their political movements don’t overshadow their lawyer’s role,” Anandhi says.
When Munusamy was in the family court in Chennai, the judge told a petitioner that she wouldn’t have faced domestic violence or want a divorce if she were a “good woman.” No woman lawyer present in the court hall objected to this except K. Sumathi. Because of the furore Sumathi raked up, the Women Lawyer’s Association took this up and the judge was transferred.
“Sumathi is a columnist in different media outlets and has immense popularity. Similarly, another lawyer A. Arulmozhi has raised issues that have also led to positive outcomes and she has the backing of her political movement. But for a first generation newbie lawyer like me, without such support systems, calling out may not be an easy decision to make,” says Munusamy.
Munusamy agrees that it is important to oppose sexism, but she says there must be a proper system through which the opposition can be raised. Rastogi, who is fighting a sexual harassment case against her perpetrator, says that there was no sexual harassment committee in the district court to seek resolution. “I wanted to hold the system accountable,” she says.
During the authors’ conversations with women lawyers, a generational trend was noticed. The older generation of lawyers, though admitting the existence of sexism in courts, did not mirror the frustration and angst of the younger generation in having to deal with it.
Explaining this, V. Geetha, feminist-activist said, “There is a myopic sense of this being a fair world and the younger generation are not prepared for what they experience. There is so little around them to help them understand the general cultures of sexism and misogyny. They perhaps imagine they are where they are, on account of their competence, not aware of the long struggles waged by individuals and movements to secure these rights. Earlier, many of us did not expect the world to be different, and we quietly or not so quietly fought our way through it. Today, younger women feel entitled to their rights, but perhaps they don’t quite see how a formal affirmation of rights might not translate into substantive respect on the ground.”
Lawyers, before the 1990s, have been part of strong movements like the PUCL, women’s movement, Periyar movement and Dravidian movement. These were strong platforms that brought them together outside courts, where they identified with an ideology and socialised. This unified them and acted as support systems, which the later generations do not have, says Anandhi.
“Each generation has resisted patriarchy in different ways. It is an ongoing process. And when cumulatively, this does not add up to bring down patriarchy in a way that the younger generation wants, there is frustration,” explains Anandhi. For the women lawyers in the 1970s-80s, the fight was to be allowed to step outside home and have a career. The younger generation has taken this for granted and for them, identity and intersectionality are the new questions, she says.
Class, caste and gender prejudices are interlinked
Merely talking about sexism thus, is a narrow reading of the problem. Class, caste and gender prejudices are all interlinked. “When you’re in court, you’re constantly getting profiled based on how you look and talk. Interactions with others are coloured by this profiling. As a National Law School educated, fair skinned, English speaking woman, I am insulated from a lot of discrimination,” says Vishwanathan.
Munusamy, a Dalit lawyer, had to quit her first job under a senior counsel in the Supreme Court after ten days, because she was asked to keep her hair tied inside the court premises. Keeping her hair tied gave her migraines. “I saw a lot of women with open hair, wearing western formals at the Supreme Court and nobody had a problem with that. When I did the same things, I was commented upon, insinuating that a dark-skinned woman from Salem should not cross her bounds,” she says.
The courts lack diverse representation in appointments. The judicial system is operated within and by a small number of privileged groups, she says. “To be taken seriously, you have to attach your identity with these groups. Face value in our judiciary is the Holy Grail. You are always asked ‘Who is your senior?’, ‘Which chamber?’” says Munusamy. So, a first generation woman from an oppressed community with no godfather in the profession, is not considered competent.
Munusamy experienced this first hand in 2014, when she was representing a transgender police constable who was dismissed. “For five consecutive hearings, the judge refused to listen to me and suggested I engage a senior counsel on my behalf,” she says. She stood her ground and went on to win the case.
Adequate representation among lawyers, judges, senior counsel designates and court staff from the oppressed communities is necessary to protect their interests and deliver justice. The courts currently are sans Dalit voices and Dalit women voices. Any change can start only by balancing these numbers.
Sexism must be tackled at multiple points – in interactions between lawyers, judges and clients, in the kind of cases that come for adjudication and in the language, colonised by patriarchy. Judgments have used casteist and sexist language and the changing interpretations of gender should be reflected in them.
Anandhi says the Biblical value attached to legal precedents is problematic, when taken holistically, overlooking context. “Reliance on precedents over context is a hindrance to reform. Language and methodology of adjudication should be challenged,” she says.
Law schools must impart legal knowledge with a feminist perspective, says Palani. A component on feminism must be introduced in the judges’ training period, she adds. Unlearning years of conditioning is not easy, but a structural requirement can speed the process. “But let us also not fool ourselves. Knowing what is right and acting right are two different things, as Dr. Ambedkar famously said, and no amount of sensitisation would work with those who are not convinced of the equality of all persons, or that all persons deserve equal respect,” warns Geetha.
Data compiled by Abhishek Vidyarthy Singh and Divya Sethu.
Pragati K.B. is a student of Asian College of Journalism, Chennai and a law graduate from National Law University, Jodhpur.
Note: A previous version of this article incorrectly noted that the incident related to the advocate who wore a saree occurred in the Supreme Court.