Can our courts be just to women when they promote so few women?

Only five women judges in the history of the Supreme Court. Only 5.84 percent of High Court judges are women. Between 1991 and 2011, the Delhi High Court selected only three women as senior advocates out of 122 selections. If you go by the numbers, the Indian judiciary needs to ask itself some serious questions about gender justice.

After six long years, on September 3, 2013, three women were finally appointed 'Senior Advocates' by the Supreme Court of India. Chief Justice P Sathasivam recently stressed the need to correct the gender ratio in Indian courts.

The move to appoint three women – in what is often seen as an elite 'all boys club' of senior advocates – has been a tiny but welcome move in the right direction. With gender discrimination and gender violence making headlines these past few months, the judiciary has been at pains to try to dispense justice.

But can the Indian judiciary itself claim to be fair in providing women equal opportunities and a nurturing culture?

Senior lawyers point out that the judiciary and legal fraternities have one of the most abysmal rates of female professional representation. Ratna Kapur, Director of the Centre for Feminist Legal Research believes that gender biases are ingrained in the Indian judiciary.

She says, “There is a lot of resistance to women entering the club of senior advocates and it’s a hallmark of the Indian judicial system. This resistance is based on male insecurity. There is also a lot of rampant institutionalized sexism in the legal profession. I think if a man and woman have the same experience and merit when it comes to appointing senior advocates, then the woman should be given preference. This is a kind of affirmative action to correct age-old institutional biases against women in the legal profession.”

There has been a great deal of consternation over the under-representation of women judges in India – only 5.84 percent of the total judges in India’s 24 high courts are women, while the Supreme Court has only two female judges.

AK Mariamma, principal of Balaji Law College, Pune, wrote recently, “If we trace the history of Supreme Court of India, it can be seen that ever since the inception of Supreme Court, only five women could be sworn in as judge[s] of the Supreme Court, including two sitting judges.” These five female judges have been: Fatima Beevi (1989), Sujata Manohar (1994), Ruma Pal (2000), Gyan Sudha Mishra (2010) and Ranjana Desai (2011) – the last two are sitting judges.

It isn’t just at the level of judges – the glass ceiling begins much lower in Indian courts. It is almost as hard to enter the elite and snooty club of senior advocates. Selections are conducted by judges comprising a full court (all the judges of a court in attendance without anyone missing) according to the rules laid by the respective court. And since so few women are sitting judges, a gender bias often creeps into the appointment of women to the position of senior advocates.

Dubbed as a 'legal caste system' by disgruntled lawyers, inspired by the British practice of ‘Queen’s Counsel’ and codified into law by Section 16 of The Advocates Act, 1961, entry to this club is both much coveted by lawyers and retired judges. Members include people like Harish Salve, Arun Jaitley, Abhishek Manu Singhvi, Mukul Rohtagi and Aryama Sundaram. You can spot them in court precincts by their rectangular flapped silky gowns (inevitably inspired by the British style).

There are monetary rewards too – most senior advocates are known to demand astronomical fees running to lakhs of rupees per hour for appearing, consulting or reading for their clients. According to the rules, clients cannot even approach this class of advocates directly and must represent their cases through junior lawyers.

Being appointed a senior advocate is often considered a ticket out of this cut-throat world of juniors who often spend their energy lobbying for clients and filing vakaltnamas. In this race, too, as with the appointment of judges, female lawyers believe they are being short-changed.

GETTING IN

“All the top rankers in Indian law colleges in the last 25 years have been women. Somehow, somewhere down the line, all these high-performing female lawyers disappear and don't make it to the top of their profession. Where have they all gone,” asks Dr AK Mariamma in a recent article.

As a female criminal lawyer, Rebecca Mammen John is a rare species. She has defended S Sreesanth in the IPL match-fixing case, Maoist leader Kobad Ghandy and the parents of Aarushi Talwar in the Noida murders case.

In January 2013, John was appointed as senior advocate by the Delhi High Court. Reports suggest that between 1991 and 2011, the Delhi High Court selected only three women as senior advocates – out of a total 122 new selections.

John says that her journey hasn’t been easy: “The legal community is a closed club. Women often do better work than men but rarely get noticed. That’s because men have better access to judges, which gives them more chances of being in their good books when it comes to the final selection. But things have changed since the time I joined the bar in 1988. Women now are no longer afraid to speak their mind and do command respect among other lawyers.”

A female lawyer at the Punjab and Haryana High Court substantiates this, on the condition of anonymity: “Many male lawyers wishing to apply to be selected as senior advocates network heavily with the high court judges. It is easier to please judges in smaller high courts because they are few and highly impressionable. Male lawyers bond with them during evening cocktail parties, play golf with them on Sundays and keep them in good humour. Women lawyers often have family obligations and cannot entertain judges in this way. This matters a lot when it comes to voting by judges in a full court to select senior advocates. Obviously, a judge will vote for someone he knows well rather than a woman who might be more meritorious.”

To become a senior advocate, you also need to get recommendations from judges before moving an application. Are female lawyers afraid to get recommendations from male judges? And if they are meritorious and do manage to get recommendations, why are they still not appointed?

Surprisingly, neither the Supreme Court nor any of the High Courts have publicly available data on the number of women who moved applications to be considered for appointments as senior lawyers.
 
But if the cases of two of India’s most popular high courts – the Bombay High Court and Delhi High Court – are considered, the emerging picture is alarming. Both these courts have appointed only three women as senior advocates in the last 20 years – out of 81 new senior advocates appointed by the Bombay High Court and 122 new senior advocates appointed by the Delhi High Court in the same period.

“There are not enough women in the legal profession, because of which the representation of women among senior advocates is less,” says Flavia Agnes, a Mumbai-based women’s rights lawyer and one of the pioneers of the women’s rights movements in India. Agnes is a co-founder of Majlis, a legal resource organization for helping women and children; one of her many high-profile cases was taking up the issue of female bar dancers after the Maharashtra government ban in 2005.

Says Agnes, “To be a senior advocate requires a lot of lobbying with judges and requires a lot more than just merit. This has made it an all-boys club. Even when women are appointed, there is a sense of tokenism to the decision. Litigation is a demanding field and women lawyers have to struggle hard to be taken seriously by prospective clients as they have few godfathers in the profession. However, things have definitely improved in the judiciary over the years.”

Beyond gender grievances, there is also a strong undercurrent in the legal fraternity that the very purpose of creating a separate class of senior lawyers is futile in India. “When I started practicing 21 years ago at the Delhi High Court, senior advocates were looked upon as guides and mentors whose legal acumen served as a benchmark of excellence for other advocates,” says Amar Gupta, a partner at New Delhi-based law firm J Sagar Associates.

“Now, competence and other noble qualities have taken a back seat. The criteria of appointing senior advocates have become fraught with biases and favoritism, and its lack of transparency lends it to abuse. Even though the law ministry might be mulling changes in the way such appointments are done, I believe there is a need to abolish this system of forming an exclusive club of senior advocates altogether,” he adds.

Women lawyers are often stereotyped as lacking drive, ambition and enough professionalism to distance themselves from their supposedly turbulent personal and familial lives. Evidence on the ground suggests otherwise.

Karuna Nundy is an advocate in the Supreme Court and has led the litigation for the rights of the Bhopal gas tragedy victims. Nundy says, “Litigation is a demanding and rigorous profession. One of the reasons why we have so few senior advocates is because the parameters set for becoming one are quite stringent, requiring a high degree of legal competence. The under-representation of women among this group is a matter of concern – there are women lawyers who have done outstanding work, with the requisite 20 years in the profession, who have not been elevated as senior advocates. For instance, my former boss Meenakshi Arora has fought several illustrious cases, including Shenyang Matsushita [Panasonic] on anti-dumping, which required complex economic and commercial evaluations; and the Vishaka case which was a landmark in Indian judicial history protecting women against sexual harassment at the workplace. She has only recently been elevated as a senior advocate despite doing years of stellar legal service.” Arora was selected as a senior advocate of the Supreme Court on July 5, 2013.

Kiran Suri was also among the three women selected this year to the club of Supreme Court senior advocates. Suri has represented social worker Vishwanath Swami in the Madras High Court lawyers-policemen clashes case – the 2009 clashes raised serious questions on the lack of discipline among lawyers.

Along with former Attorney General Soli Sorabjee, Suri fought the case to bring erring lawyers to book for violence inside court premises. Suri cautions against the tokenism that accompanies greater women representation in the judiciary: “A lot of people talk about such issues these days. But I believe that merit is above gender in the legal profession. I have achieved my senior advocate status as a result of more than 30 years of hard work which the court acknowledged. This is not a favor done to me because I am a woman.”

STAYING IN

In July this year, the Supreme Court woke up to a rude reality. Despite delivering the landmark Vishaka judgement in 1997, that made it mandatory for any organization employing more than 10 women to have an oversight mechanism against sexual harassment, the Supreme Court itself found that it had no such mechanism.

On July 17, acting on a writ petition filed by advocates Binu Tamta and Vibha Makhija, the Supreme Court passed an order approving regulations to tackle the menace of sexual predation in court premises – called The Gender Sensitisation  & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition  and Redressal) Regulations, 2013. Tamta and Makhija had filed their writ petition after a Delhi High Court worker was caught peeping into the women’s bathroom in court premises with a mobile camera.

The Supreme Court also ordered high courts to frame their own regulations and ensure that district courts also implement similar rules to safeguard women lawyers. “That’s how difficult it can get for women in courts,” says Dr AK Mariamma of Pune's Balaji Law College. “It is not just sexual harassment that is rampant in courts – women lawyers ultimately suffer professionally because of biases.”

Kiran Suri says that having more women as senior judicial officers would change attitudes and mindsets. “Recently, the SC has expressed its shock over the Kerala High Court verdict in the Suryanelli case where a raped minor was equated to a village prostitute known to be sleeping around with many men, leading to the acquittal of the accused,” she says. “Now, in this case having senior women judicial officers would have certainly made the final judgment [of the Kerala High Court] more sensitive.”

Meenakshi Arora also believes that more women in the judiciary would lead to gender rights being better understood, and says, “I have seen chauvinistic approaches a lot of times in court. Most of the judgments are sensible but having more women on the bench and the bar would lead to a more sensitive understanding of issues like domestic violence, marital rape, child custody during divorce and aspects related to alimony.”

“The logic is simple,” says Ratna Kapur of the Centre for Feminist Legal Research. “If male and female lawyers have the same merit and talents, the female needs to be promoted as a Senior Advocate to correct the historical imbalance in their representation.”

With Chief Justice P Sathasivam making women’s empowerment in the legal profession a top priority, many are optimistic about an impending improvement in the community's culture.

Sai Manish is a journalist based in New Delhi.

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