The Everyday Battles Of Women In Legal Field

Before the Supreme Court, the petitioner primarily challenged her transfer from Gwalior, which is a Category 'A' city to Sidhi, a Category 'C' city, the same year her daughter was preparing for her Class 12 Board examination, in derogation of the extant transfer policy. She had made representation seeking deferral of the transfer order by eight months. The same was rejected by the Transfer Committee. Her second representation seeking accomodation to transfer her to a Category 'B' city, was also rejected, that too, as the Apex Court held, arbitrarily without proper consideration. She had to concede to the whims of the personnel manning the institution and was left with no other option but to resign. The Court noted -

"Denial of her legitimate expectation could have led to desperation, exasperation and frustration. The frustration of the petitioner is evident from the language used by her in her resignation letter. She stated that as she had been transferred to Sidhi in the mid academic session of her daughter's Class 12th, it had mostly affected the crucial stage of career of her daughter. She stated that therefore, she was left with no other option but to resign from her post. It appears that in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother."

Hostile work environment created by her colleagues and superior officers had pushed her to choose between her duty as a mother and duty as a judicial officer.

Pushed to choose between profession and family roles

Last year, while hearing an application filed by the Supreme Court Women Lawyers Association seeking to consider more women for judgeship, the then CJI, Justice Bobde highlighted that Chief Justices of various High Courts have informed him that often women advocates, who are invited to join the Bench, cite domestic responsibilities to decline the offer. Oddly, the spotlight is on the women, when the appointment system itself lacks transparency and accountability; is marred with inconsistent recommendations and a lack of definiteness. Viewing women's concern as an excuse to exclude them from crucial decision-making positions is fatally reductive, to say the very least. In a male dominated Bar and Bench, women's narrative gets lost as easily as it gets replaced with those of their male counterparts.

Though, the aspiration is to move away from the traditional gender roles, acknowledging the reality of the working woman, who is still performing the balancing act, is crucial. The illustrative lessons on how women ought to conduct themselves in a courtroom should be replaced with discourse regarding the manner in which men in the profession are to cooperate with their female counterparts to make the workplace more inclusive.

Last year, at an event where he was felicitated by the Bar Council, the Chief Justice of India, N.V. Ramana lamented the poor representation of women in the judiciary even after 75 years of independence. The same sentiment found reiteration at the felicitation ceremony of Justice Hima Kohli, where the CJI echoed the thoughts of the United States Supreme Court Judge Ruth Bader Ginsburg - "Women belong in all places where decisions are made…It shouldn't be that women are the exception."

Much like Justice Indu Malhotra, Attorney General, Mr. K.K. Venugopal, the CJI acknowledged that gender diversity on the Bench would immeasurably benefit the society.

He reflected upon certain factors, which he felt needed attention to bridge the gender divide both at the Bench and the Bar. It was asserted that policies need to be worked out in order to encourage more girls to take up law after school. Though it is a suggestion worth exploring, the mystery of the 'disappearing woman representation' might not be attributable to the loopholes at the entry level, but those in the middle.

The CJI correctly pointed out that apart from the infrastructural deficiencies there exist gender stereotypes, which acts as a stumbling block for women entering and struggling to survive in the profession.

Whenever the United States Supreme Court Judge Ginsberg was asked, when would there be adequate women representation on the SCOTUS, she responded -"When there are nine."

She observed the response bewildered her audience, which she failed to understand, as she went on to add -

"But, there'd been nine men, and nobody's ever raised a question about that".

Today, in India, we are faced with the same reluctance in acknowledging evolving gender roles. With 4 female judges out of 32 judges at the Supreme Court and 83 female judges out of 680 judges at the High Court, the concern raised by Justice Ramana is very real.

In a study conducted by the International Commission of Jurists, recruitment and appointment processes; opposition, gender roles and stereotypes; harassment and discimintaion were identified as the major obstacles to women's full and equal participation in the judiciary.

Recruitment and Appointment Processes

Gender representation in the lower judiciary is slightly better but eventually it worsens and so the 'female-representation pyramid' tapers. The procedure of recruitment prescribes an entrance examination at the entry level, which encourages more women participation. The eligibility criteria to get appointed in the position of a District Judge requires seven years of practice in terms of Article 233 of the Constitution of India. As per a 2020 judgment, it has to be a minimum seven years of continuous practice. Such a rigid criterion, divorced from women's reality, acts as an impediment for female participation. The consideration for elevation from the post of a District Judge to that of a High Court Judge is a slow and uncertain process, which more often than not discourages women judges.

Opposition, Gender Roles and Stereotypes

Stereotyping is also rampant, and often brushed under the carpet, even by the Bench, when packaged as an innocuous joke. Women lawyers, both senior and junior, have time and again spoken/written about sexist language used and derogatory comments made in the workplace by their male colleagues with great impunity. Apart from demeaning women, such endorsement of stereotypes have been successful in breaking their morale. Unfortunately, the resistance from the Bench also seems to lack vigour. Then, going to other places looking for lacunae to fix the issue of women's representation is plain glibbery.

It appears that the stereotypical understating of gender roles are not only perpetuated by some men in the profession, but also by clients. Women lawyers have also stated that clients want their cases to be argued by their male colleagues. This can be another reason why women find it difficult to stay afloat in litigation because clients are reluctant to entrust them with work irrespective of their competence. The kind of work assigned to female lawyers, mostly matrimonial matters, is also an indication of how rooted patriarchy is in the legal profession.

The sexism does not stop at the Bar, but the women at the Bench have to also bear the brunt of it as well. In 2015, a male lawyer appearing before a woman judge in the Karkardooma Court complex used "sexually explicit remarks", "thumped the table" and used "threatening tone" during proceedings. A FIR was filed by her in this regard. It seems that she was later asked by her chief judicial magistrate to withdraw the complaint. Needless to say, it is the act of both the lawyer and the chief judicial magistrate which is discouraging women from claiming their space in judiciary.

As recently as on 16.02.2021, an advocate appearing before Delhi High Court Judge, Justice Rekha Palli kept addressing her as 'Sir', When she objected, the advocate stated that he was using the expression 'Sir' not for the individual but, the 'Chair' of a judge. This is yet another reflection of how society associates positions of power with the male gender, not hesitant to obliterate 'her' presence.

'You Think The Chair Is For Sirs?" : Justice Rekha Palli To Lawyer Who Addressed Her As 'Sir'?

Harassment and Discrimination

Another roadblock to adequate participation is harassment and the lack of efficacious remedies. When a woman raises allegations of harassment, she is already caught between a rock and a hard place. A barely-existent redressal mechanism only makes her situation worse. Sexual harassment in the workplace has been recognised as a violation of fundamental rights of a woman. While delivering the judgment in Vishakha And Ors. v. State of Rajasthan And Ors. the Supreme Court noted that gender equality, a universally protected human right, includes protection from sexual harassment and the right to work with dignity. Lack of legislation for tackling sexual harrasment at workplace urged the Court to lay down guidelines and norms. Rivetingly, the same Court that had set out the guidelines as far back as in 1997, enacted the sexual harassment regulations for its own institution almost a decade and a half later. Though a Complaints Committee of the Supreme Court was operational after 1997, it was competent to deal with the complaints filed only by the women employees of the Court.

In a public interest litigation concerned with the victimisation of women at their workplace, it was evident that the Vishakha Guidelines were derogated in absence of a legislation. The Court categorically recorded that there was a lack of proper mechanism to address complaints of sexual harassment of the women lawyers in Bar Associations. In view of the same, the Bar Council of India was directed to ensure that the State Bar Councils follow the Vishaka Guidelines not merely in form, but also in its spirit.

In 2013, the Prevention of Sexual Harassment of Women at Workplace (Prevention. Prohibition and Redressal) Act, 2013 came into force. The same year, the Apex Court had taken up a suo moto proceeding based on a 'Hindustan Times' news article published on 19.03.2013, reporting a voyeuristic and degrading incident which was alleged to have taken place in the Delhi High Court premises. As per the said news report, a man, who was believed to be a cleaning staff was caught secretly filming a lady advocate when she was in a toilet in the Court premises. This matter, which was taken up to address the issues of women's safety, seemed to have opened up Pandora's box. A Petition filed by advocates Binu Tamta and Vibha Datt Makhija, urged the Court to look into the lack of redressal mechanism to prevent sexual harrasment at the Court premises. A committee was set up in this regard, who submitted a comprehensive set of draft rules, which eventually took the shape of the Gender Sensitisation And Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohinbition and Redressal) Regulations, 2013 ("2013 Reguation"). Directions were also issued to the High Courts to formulate regulations in consonance with the one adopted by the Apex Court.

Interestingly, the 2013 Regulation excludes 'aggrieved women', who are covered by the Supreme Court Service and Conduct Rule, 1961, from its ambit. It appears that there is a separate Internal Complaints Committee for staff-member of the Supreme Court. However, the oversight is that this exclusion leaves a staff member who has been sexual harassed by a non-staff member, without any remedy. Though it defines "sexual harrament" broadly - includes both physical and verbal harassment, as well as harasment by e-comunication, it has a very narrow definition of workplace. "Supreme Court of India precincts" would only mean the whole premises of the Supreme Court including the Court Block, open grounds, parking, old and new Chamber Blocks, libraries, canteens, bar-rooms, health centres and/or any other part of the premises under the control of the Hon'ble Chief Justice of India.

From the brief pointers of the meetings conducted by the GSICC as reflected in the Annual Report of 2020, it appears that on 12.02.2020, while discussing the draft of the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2020, the Committed had a detailed deliberation on the definitions of "aggreived women" and "precincts of Supreme Court". Hopefully there would be material changes in the definitions to address the shortcomings in the extant regulations.

As per the latest Annual Report of 2020, 4 complaints were received by the GSICC during the year 2020. Out of these 4, only one complaint was being effectively pursued, while the others were either not maintainable or lacked sufficient particulars. In February, 2021, an Advocate's clerk, who was found guilty of sexual harassment by the GCISS had been debarred from entering the Supreme Court precincts from 01.07.2021 to 20.09.2021.

No disciplinary proceedings against judges of superior courts

As noted by the Supreme Court in Indira Jaising v. Registrar General, Supreme Court disciplinary proceedings which are generally initiated against all other employees of the court in cases of misbehaviour and incapacity, cannot be initiated against Judges of superior courts.

During the course of the proceedings in X. v. Registrar General, High Court of Madhya Pradesh And Anr., Ms. Jaising appearing highlighted that there was a lack of sexual harassment redressal mechanisms for a judicial officer.

"It's painful to see sexual harassment in the judiciary and that too without a mechanism to address the injustice caused. I'd urge your Lordships through your judicial marvel, to put in place the mechanism... this is not the first case of woman judicial officer facing sexual harassment".

We have also witnessed the unfortunate manner in which the sexual harassment allegations against former CJI Ranjan Gogoi were dealt with.

As illustrated above, there appears to be some mechanism in place to address the complaints of sexual harassment in the Court premises. But, it is really not just the mere existence but the effectiveness, that is being put to question. It is high time to realise that the procedural quagmire, ambiguous and narrow definitions are only making access to justice impossible for the 'surviving women' in both the Bench and the Bar.