Perception That Women Are Less Authoritative As Compared To Their Male Counter Parts Undermines Their Credibility In Court: Justice Hima Kohli

At an event held on Friday (October 25) to mark 100 years since the enactment of the Legal Practitioner's (Women) Act, 1923, former judge of the Supreme Court Justice Hima Kohli said that the perception that women are less aggressive or authoritative as compared to their male counter parts undermines their credibility in court.

This perception, the judge emphasized, may also affect hiring practices and limit opportunities for advancement of women in the profession. 

Justice Kohli was speaking at an event supported by the Society for Democratic Rights and the University of Cambridge which also saw the launch of a short film–'(IN)VISIBLE', produced by Doctoral Candidate at the University of Cambridge Bhumika Billa. This was followed by an all-woman panel discussion moderated by The Hindu's Diplomatic Affairs Editor Suhasini Haidar, also comprising of Justice Kohli, senior advocates Vibha Datta Makhija and Jayna Kothari, Advocate-on-Record and disability rights lawyer Sanchita Ain and Billa. 

1923 Act a landmark moment allowing women to enrol

In her address at the outset of the event Justice Kohli said, "Let us look at the historic backdrop. Struggle for women's rights in India has deep roots intertwined with the suffrage movement and the broader fight for independence of India from the colonial rule. It was in 1923 that India saw a landmark moment where women were allowed to enrol...This was a radical shift at a time when women were largely confined within the domestic sphere. The struggle is therefore worthy of celebration". 

Women face constant struggle to maintain a balance approach

She said, "A woman faces a constant struggle to maintain a balance approach in her profession. Woman continue to face this challenge and have continued to do so even today. As per 2023 the data of 15 States provided by the Bar Council of India indicates that there are 2,84,507 women lawyers. They account for only 15.31% of the totally enrolled 15,42,855 lawyers. While many drop out due to absence of work life balance because of systemic biases the lack of representation at senior levels remains a pressing concern. Similarly the statistics of the 2022 survey and research paper prepared by DNLU Maharashtra in respect of women in legal education paints a bleak picture. 5 out of 23 that is 21.73% of the national law universities had females as vice chancellors. Only 27 out of 104 professors in NLUs were women...37 out of 91 associate professors of them were females in NLUs".

With respect to representation of women in higher judiciary, she said that the same has not improved much. Referring to a study Justice Kohli said, "Out of 650 High Court judges in India today only 76 are women, this amounts to around 11.7 % of the current strength of the high court judges. Position is better at the level of the district judiciary where in some states women judicial officers account for almost 50% of the total strength. Notably in the past 75 years no woman lawyer has been appointed as Attorney General nor has a woman lawyer held a post of Solicitor General. Though the number of women at the posts of ASG in Supreme Court has increased marginally. Women ASG representing in Union government in state high courts is few and far in between".

Factors which have affected stultified progress of women

On the "stultified progress of women historically and in the present", Justice Kohli pointed to some of the various factors such as gender discrimination and gender bias. She said, "Women lawyers have often encountered stereotypes that question their competence and their authority. The perception that women are less aggressive or authoritative as compared to their male counter parts undermines their credibility in court. This bias also affects hiring practices but also limits the opportunities for advancement within the legal firms and courts". 

On Work Life Balance she said that women are the primary care givers of children and elders at home, due to which many women lawyers find it difficult to commit fully to their legal careers and that many female lawyers also feel unsafe working at late hours. 

With respect to lack of infrastructure for women lawyers she said, "Something as basic as a rest room facility further contributes to this issue". She also said that lack of mentorship and network opportunities, could also be a possible challenge for women's growth in the profession. 

"As we complete this centenary milestone it is imperative we stop to look back at how far we have come and then look forward to assess how much further we need to travel," she underscored adding that it requires collective efforts from all sections of the society.

She thereafter underscored, "Future of women in law in India hinges on our collective effort to dismantle systemic barriers and promote an environment that fosters equality...initiatives aimed at mentorship, skill development and creating inclusive work places are essential to ensure that women enter the profession and shine their light from within". 

Policy changes that support flexible working hours, implementation of parental leave and harnessing of technology to promote work from home can help in addressing the issue, she added. 

On merit and laws that have radically changed things for women

In the panel discussion that followed when asked about how women navigate in the profession Justice Kohli said, "When you navigate yourself as a lawyer the challenge was not only that there were men around; the challenges were also that the clients were also men...As judges when you move on to the other side again the challenge is just as much to be able to prove yourself equal to your male colleagues in many facets. It was taken for granted that perhaps men would do it better many times or certain jurisdiction would come more easy to the male colleagues vis-a-vis women colleagues...Im happy to note that now in many of our high courts women are now handling commercial issues, IPR, tax, service matters...and are not just confined to family courts or women centric issues. Thats the way forward and we have come a long way". 

On whether there should be quotas for women, Justice Kohli said, "I don't think there should be any compromise on merit. I think women are good and they should prove their point...And they don't want these concessions mind you. I have not come across women who are saying give us a quota because we are women. Not at all. They want to be recognized and considered at power with their male colleagues and get their due. And thats it, no more and no less". 

With respect to one law that has perhaps radically changed things for women, Justice Kohli emphasized that what is important is that there is effective implementation of statutes which will make a difference. And it has to be done by the enforcers and ultimately the courts, she added. 

"However many statutes one may have, unless consciousness comes from within from downwards to upwards and not from up to down. It should come from the basic from the community and go up...to my mind the challenge is to make the existing statutes work," she said. 

On merit, senior advocate Jayna Kothari said that while merit and your work should be the only thing that matters however at the same time one does carry their identities with them, whatever it may be. On the challenge faced by many lawyers who are transgender persons she said, "It is difficult. In India for them the biggest challenge is even getting enrolled with the bar council, with their hurdles of name and gender change. Those are the initial challenges which women faced earlier. And then will courts and clients accept them as lawyers and look beyond their gender identity". 

Meanwhile AOR and disability rights lawyer Sanchita Ain spoke about her LLM experience, at the University of Essex stating while she was there one of her professors wanted to hire her as a research assistant. "This was a phase I was very sick. I wondered why would he hire me. I asked him that if you have someone with equal competence and you have someone with a disorder which is likely to affect her work who would you hire. He said  that 'I would rather hire the person with disability simply because I want to break the paradigm'". Ain said that the connotation associated with persons with disabilities is someone who cant do something and emphasized that we need to overcome subconscious biases in hiring.

"We may still have unconscious bias...it is essential that inclusive equality has a participative dimension as well," Ain added. 

On an important law or judgment protecting women's rights Kothari referred to Article 15(1) of the Constitution and said, "the core is Article 15(1) of the Constitution that state will not discriminate on the grounds of sex. It has the basis of landmark legislations and judgments protecting women's rights". She further emphasized on ensuring that we internalise this value of the constitution. 

On this aspect Makhija said that Article 15(1) is the grund norm and that it allows special laws to be made for women. On the issue of merit Makhija said, "To my mind all women are as meritorious as men. Privileges like education, family whoever has it–whether man or woman, is a person who develops similar competencies. But thats not the hurdle. The hurdle is the opportunity. How do you get into the room. That hurdle is psychological, social and historical. Therefore provision of article 15 which says that special laws can be made for women not withstanding the equality clause...is the very foundation for women to be let into the room. If you are not let into the room, what can you prove, you cant prove anything. I support reservation. I feel our society whether Indian society or global society has not reached a level equity in professional, economic and social areas. To get to that level of equity itself is a very long journey...to reserve a seat at the table is what is going to sustain them. I'm really looking forward to the woman's reservations bill for the parliamentary seats because it will compulsory for those many women to be in the room to make laws for the rest of us". 

Meanwhile Ain emphasized on an institutional relationship which she said needs to be acknowledged and addressed each time women are looked at in the profession. Ain noted that making education inclusive at the inception is necessary to overcome the hurdles of opportunity and to ensure that quality education is imparted to women students with disabilities.

Billa on the other hand said that instead of asking whether or not someone is meritorious it is perhaps more important to ask 'who decides what merit is?'.

"When we say merit is way forward are we giving more power to the gatekeepers historically assessed merit with blindspots? And perhaps it is our systemic obsession with merit why we are this slow in progressing," Billa said. She also highlighted the need to consider social and economic circumstances in assessing merit adding, "Maybe we do need perhaps quotas. I do believe that we do need quotas for people who cannot be assessed at the same level of meritorious criteria that we have". 

On the law that she thinks has changed things for women in the country, Billa said that it is the 2005 amendment to the Hindu Succession Act which gave the right to women to inherit property. She emphasized that when we talk about freedom it is–financial freedom that comes first. 

On the next 100 years vis-a-vis women in law

The panelists thereafter addressed some of the changes which can be made in the next 100 years to ensure that disparity between genders can be reduced. On this point Justice Kohli said, "It is a question of the change of mind for those within the family because thats the first place where a woman has to thrive and assert herself and insist that she wants to go her way. What she wants must be respected. This must be focus in the family, in the extended family and the community as a whole. If they accept what women want it makes it easier and if that is met then maybe 1/3rd battle is won".

Ain added that in her vision of how the society will look like, is a society where people with differences would be sitting across the room; it would be normal and not something which is considered distinct enough to be a made a criteria to make any decision. She also stressed on an attitudinal shift among people who are at the top as well which she said is important for women and persons with disabilities to be able to work from home.

Billa added that the future of women in legal profession includes tackling challenges like technology and climate crisis. She emphasized on the potential of technology to enable flexible working that could enhance women's participation in the workforce.

Kothari meanwhile said that it is not just participation, but leadership of women in the law that is important and why we need to include more names of women in recommendations for elevation to the benches as well as identifying the core criteria which enables that women and women from marginalized groups to get in to the profession.

Makhija concluded by saying that one of the things she had read was that it would take 149 years to close the gender gap for South East Asian countries India included. She emphasized that we should not have to wait 149 years to bridge this. "We need an accelerated change which can come only by laws. Lets get to the 50% immediately and lets not leave it for tomorrow and future. And then we can get into debate of merit, comparative things about men and women and then we can talk about 100% later," Makhija said.