Eliminate Derogatory Tendencies Towards Women In Courts: Indira Jaising Writes To CJI

To the Chief Justice of India                                                                                                                                                                             March 8, 2019

Dear Sir,

The profession of advocacy relies heavily on the power of language, its interpretation, and its socio- political baggage. Language is our weapon and shield, we agitate with our words, and we seek protection in our guaranteed rights.

As Deborah Cameron puts it, "Sexist language teaches us what those who use it and disseminate it think women's place ought to be: second-class citizens, neither seen nor heard, eternal sex-objects and personifications of evil."

In this way, sexist language is violent.

It needs to be reminded to everyone in our profession that such power wielded by our words inside the courtrooms and outside should be eliminated so as to not manifest as violence.

Language is more than a mere communication tool. It is an intuitive social, cultural and political indicator, which reflects prevailing attitudes and ethos of any society. So, when we talk about "gender bias" in a language, we refer to the superior-inferior paradigm that has evolved due to distinction in gender .

Gender is the social construct, heavily burdened with stereotypes, labels, and moral character attributes. The Constitution of this country protects us all against discrimination based on "sex", and this Hon'ble Court has held that perpetuating gender stereotypes is a form of such discrimination.

In my years at the Bar, there have been multiple incidents where sexist remarks being made by lawyers go unnoticed by the Bench. Such tacit acceptance of sexist language in the courtroom and brushing it aside as "didn't mean any harm", gives it a level of legitimacy, and a judge fails in their duty in protecting the fundamental right enshrined under Article 15 if they don't disapprove of and call out sexist language, remarks, or comments made in their courtroom.

Recently, I was referred as a "wife" rather than by my name or as Counsel ,by a senior male lawyer in the courtroom, although immediate corrective action was taken by him upon my protest. It was left to counsel to point out " this is a sexist remark." The judge did not protest .In another event, a lawyer remarked to a fellow panellist on a national television debate that "if you are afraid, go wear petticoats and bangles."

On another occasion in the Supreme Court while I was arguing, a senior male lawyer referred to me as "that woman" while he was referring to all his male colleagues as "my learned friend", and this when I was the Additional Solicitor General and was representing the CBI. I expected the judge to immediately reprimand him, but he did not. Instead the judge was enjoying the spectical and smiling I asked for protection from the use of such derogatory language and he said "Madam, you don't need any protection, you are overprotected".

So if you stand up for your rights, you demand equality you are victimised and you better grin and bear it.

On other occasions, I have been called "shrill" while my male colleagues are valorized for being totally aggressive in the court. These things hurt immensely. I have already gone on record to say I have been sexually harassed in the corridors of the Supreme Court of India, notwithstanding my grey hair and notwithstanding that the corridors are under CCTV surveillance.

More than anything else women crave for their dignity to be respected at the workplace. In over fifty years of practice I have not found any improvement in the culture of the courts which is predominantly male. Women though present in larger numbers are invisible from public discourse, unless they are someone's wife, sitter, daughter, or politically commented to the powers that be.

In the pursuit of a "gender just" and "equal" society, misogynistic phraseology in political, social or legal parlance cannot be allowed, entertained or nurtured

Judgments of courts across the country enjoy the status of being the law of the land, but unfortunately judicial language continues to use words and phrases which perpetuate patriarchy, endorse stereotypes of women's perceived roles and behaviour and entrench biases that are detrimental to the status of women in our society.

Judges of the Apex Court in a judgment have referred to a woman in a live- in relationship as a "keep". I had occasion to point out in my writings that only slaves and property can be "kept" .Words and phrases in judgments that connote a subordinate role to woman in a relationship, objectify them as property, and merely for the man's sexual pleasure should not only be condemned and expunged but barred from being used. This is the only way of creating a gender sensitive bar and bench.

Legal language or the language of law, of which the judiciary is the custodian and guardian, should be the norm setting language of equality for acceptable legal discourse of a nation. In a democracy, legal language must be judged by how clearly and effectively it communicates the rights and obligations conferred by the Constitution including the right to gender justice.

On the occasion of International Women's Day, I urge and implore you to take active measures for ensuring that advocates and judges across the country are mindful and checked for the gender sensitivity of their language inside the courtrooms and outside. It has been over 70 years that Article 15 of the Constitution entitled persons of all sexes were granted an equal status in this country.

It should be unpardonable to perpetuate any sexist stereotypes that demean or denigrate the person of any sex, especially in the courtrooms which are places of seeking justice.

Justice D.Y. Chandrachud in the judgment of this Hon'ble Court in Navtej Johar v. Union of India (2018) 10 SCC 1, wrote in his concurring opinion that perpetuating stereotypes about a class under Article 15(1) is a violation of that fundamental right. The relevant extract is as follows:

"A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate."

Justice Chandrachud had further upheld this in the Sabarimala Temple entry case, reported as Indian Young Lawyers Association v. Union of India (2018 SCCOnline 1690) as follows:

"To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims."

I have taken the liberty to make a few suggestions and I hope you will consider them.

• The judiciary under the guidance of the Chief Justice of India takes the lead and sets up a Commission of Enquiry to do a gender audit of court room culture, discriminatory behaviour, availability of infrastructure such as crèche and toilets to ensure the right to work with dignity and safety and security of women at the Bar.
• Organize a Fact Finding Committee to document judgments and judicial documents that contain sexist remarks, to understand the gravity of violence meted out through these judgments, and ensure that these words and phrases are barred from being used in the judicial language by judges and by lawyers
• Make active efforts to learn, if an advocate being appointed to a senior leadership position, or a judge being promoted has condoned sexist behaviour or indulged in it inside the courtrooms or in public life. Such person should not be given the position of a role model or a leader.
• Issue a circular or practice directions to judges across the country to check the usage of sexist language by lawyers, litigants, and others in their courtrooms.
Sir, the judiciary is responsible for not only rejecting such phraseology but for ensuring its elimination in the reading, interpretation and explanation of the law.

Just as language echoes the times and culture of the period, it also has the power to influence the thoughts of a nation and mould the culture of a society. The judiciary must consciously eliminate derogatory tendencies towards women in our (spoken and judicial) language.

The symbol of justice may be a blindfolded woman but none of us will settle for tokenism or symbols.

Wishing you a very Happy International Women's Day!

Regards,

Indira Jaising