'Women Lawyers Face Sexist Behaviour From Male Colleagues' : Indira Jaising Requests CJI To Frame Guidelines

Jaising has begun her letter by commending the publication of the ‘Handbook on Combating Gender Stereotypes’ by the E-Committee of the Supreme Court of India, which was released earlier this month to an overwhelmingly positive response. This handbook, prepared by a committee headed by Calcutta High Court judge Moushumi Bhattacharya, not only contains a glossary of inappropriate gendered terms used in legal discourse with a list of alternative words or phrases that should be used, but also flags common but incorrect reasoning patterns based on gender stereotypes, particularly those about women; and highlights binding decisions of the Supreme Court that has rejected these stereotypes. She has written –

“This was a long-awaited move. Coming as it does, from the Supreme Court of India, and made available to the world at large it will go a long way in sensitising not only judges and judicial officers but hopefully also members of the Bar.”

Despite welcoming the move, the senior counsel has emphasised that gender stereotyping, a longstanding concern, persists in both legal proceedings and interactions. Even a veteran lawyer like herself is not immune to such gender stereotyping and micro-aggressions from her male colleagues, she has revealed in her letter. To illustrate, she has cited instances of subtle gender biases in courtroom interactions with her male counterparts – from patronising remarks to being referred to informally.

“I have often found myself at the receiving end of gender serotyping from my male colleagues. Snide remarks like ‘You are an empowered woman, who can put you down’ are in fact, a disguised form of gender stereotyping. While in my younger years at the Bar, I faced no such stereotyping, the older I got and the more experienced, the gender stereotyping began. It seems almost as if male colleagues are unable to deal with an ‘empowered woman’. At other times I have been referred to by my male colleagues as ‘delightful’ during court hearings, something which I promptly objected to and which is recorded in a judgment of the court as a form of harassment in court.”

Jaising has revealed that not only has she been asked to not raise her voice in court, but her male colleagues would often refer to her as ‘she’ instead of ‘my learned friend’, as is the convention –

“Significantly, at the other end of the spectrum, I get told by my male colleagues ‘Don't raise your voice in court’. I have, on a previous occasion, indicated that pejorative expressions such as ‘she is aggressive’ are used in relation to women and never in relation to men. When it comes to ‘aggression’, I could provide you with several examples of male lawyers who are loud and aggressive in court, but they are considered India’s top lawyers. What could be a better example of gender stereotyping? What is worse, is that some senior male lawyers who often are my opponents refer to me as ‘she’, and never as ‘my learned friend’ as is the tradition at the Bar. Ironically, this is the fashion in which they themselves expect to be addressed I inevitably address them as such, or if necessary by their second name.”

In this context, Jaising has urged the Supreme Court to develop a handbook specifically addressing gender stereotyping – often subtle in nature – targetting lawyers who are women. This handbook would, among other things, offer guidelines for male colleagues to treat women fairly in court and law offices –

“I write to you with the request that the court issues a handbook on gender stereotyping of lawyers who are women, which will provide guidelines to our male colleagues on how to deal with women at the Bar and in the law offices. While this court provided guidelines on the ‘entrenched paternalistic and misogynistic attitudes’ these are often played out at the Bar in day to day work in court.”

Apart from this, the senior counsel has also raised concerns about the issue of sexual harassment faced by lawyers who are women in courtrooms and law offices. She points out that, despite a Supreme Court directive, institutions including the Bar Council of India have yet to declare sexual harassment by lawyers as professional misconduct.

Jaising suggests practical measures to combat gender stereotyping

Jaising has suggested practical measures to combat the issue of gender stereotyping, including the creation of a list of proscribed words not be used in advocacy, pleadings, and judgments, akin to the list published by the Indian Parliament containing unparliamentary expressions. This list would include pejorative terms and slur, which despite not being found in any statute, are used in common legal parlance. She has also called for alternatives to derogatory terms like ‘prostitute’ that continue to exist on the statute books (in this example, The Immoral Trafficking (Prevention) Act of 1956). The suggestions she has placed for the chief justice’s consideration are –

1. Language is an enabler of stereotypes, it would be of great value if this Hon’ble Court could publish a list of words which may be proscribed in advocacy and pleadings and judgements of Courts. A similar list, for example, is published by the Parliament of India of words which are unparliamentary. (See, Unparliamentary Expressions, Lok Sabha Secretariat, (2021).
2. Such words could be those which are in any event not found in any statute but are more or less part of the slang used commonly. This includes words such as ‘harlot’, ‘slut’, ‘keep’ which must be proscribed in legal language.
3. The words that stereotype women and are derogatory of women in some of our statutes may have to be dealt with by providing alternatives as the handbook does. By way of example, the word ‘prostitute’ is found in Section 4 of The Immoral Trafficking (Prevention) Act 1956. In the Act, prostitute and its forms are used around 36 times. Hopefully, eventually these changes shall be reflected in statutes in the near future.

Not only this, Jaising has pointed out the prevalence of gender stereotyping in legal pleadings and oral arguments – particularly in matrimonial cases and rape trials – that make their way into judgments, recommending the creation of a model handbook on practice guidelines for pleadings that can be adopted by high courts and district courts. Such guidelines would ensure that gender biases and stereotyping are avoided from the very inception of legal proceedings. She has written –

“Having worked as a lawyer in this country for a continuous period of over 50 years where I have been representing women, I find the worst type of serial stereotyping in pleadings filed by lawyers in court on behalf of the clients they represent. It is therefore necessary to have guidelines on the kind of language which is used in pleadings and in the arguments by lawyers, for it is after all pleadings that the judges read before delivering their judgments. Particularly egregious forms of blatant stereotyping can be found in pleadings in matrimonial cases on behalf of husbands. Attention is invited to the academic work of Dr Pratiksha Bakshi titled, ‘Public Secrets of Law: Rape Trials in India’ which documents the different types of humiliating remarks which are made during the course of arguments in a rape trial. Gender stereotyping starts with pleadings, continues with oral arguments, and finally finds its way in judgments. I request that these issues are also addressed in an appropriate manner by the Supreme Court of India through a model handbook on practice guidelines for pleadings which can be adopted high courts and district courts.”

Saying women have unleashed ‘legal terrorism’ by misusing Section 498A is gender stereotyping: Jaising

She has also drawn the attention of the chief justice to a recent Calcutta High Court judgment in which a single judge bench labelled women’s misuse of Section 498A of the Indian Penal Code as ‘legal terrorism’. This provision punishes ‘cruelty’ against married women at the hands of her husband or his relatives, and includes harassment related to a demand for dowry. Jaising has insisted that generalising the issue, while the focus should be on the individual case of alleged misuse of the penal provision, leads to the creation of an impression that the judge has a gender bias –

“This is a typical example of stereotyping that is generalising an issue while the attempt should be to focus on the case at hand. It is not my contention that in a given case, if the law is misused, power of the high court must not be invoked. But to say that women have unleashed ‘legal terrorism’ by misusing Section 498A is the surest form of stereotyping, leading to the impression of gender bias in the judge. I make it clear that I do not wish to comment on the merits of the case in question but it is important to point out that such comments whether in judgments or made during the course of a hearing by judges are to be avoided if justice is to be done.”

After offering her suggestions, in conclusion, Jaising has expressed her gratitude to the Supreme Court for the ongoing efforts to foster inclusivity and gender sensitivity within the legal system, acknowledging the evolving process to achieve these goals.