Gendering Judiciary: Reflections by a woman Lawyer

14/02/2020

Time and again, judges, jurists, lawyers, law professors and legal luminaries have lamented over the gender bias that exists in arguably, the most powerful wing of the Government- the Judiciary-the term, in this context is intended to have an expansive meaning – comprising of both the Bench and the Bar. Despite Justice D.Y.Chandrachud's emphatic assertion that the Indian Constitution is essentially a feminist treatise, thus underlining the importance of eliminating all forms of discrimination against women as a basic constitutional tenet, the fairer sex are made to fret and fume over the frequently agonizing experiences for being 'fairer'. Articles are authored, judgments pronounced and laws promulgated, to assert and accentuate the need for gender equality in the judicial field. Yet, harassment in the higher corridors of justice, ensue in all hues.
Not that there is anything particularly painful about the gender bias in the judiciary; it is to be condemned, wherever it be. But, because of the peculiar nature of the profession, where only the failure of one, can mean the success of another and where career paths are in-built with unlimited offers for unprecedented rise and unimaginable fall, the bias within is exposed in a more pronounced way. And sometimes, it costs lives too.
In fact, until the Allahabad High Court took up the matter, Indian Women were not allowed to enroll as members of the Bar. It was in 1921, for the very first time in India, that Cornelia Sorabji's application for legal practice was taken up, at the initiative of the Allahabad High Court. This led to the passing of the Legal Practitioner's (Women) Act, 1923, which conferred on a woman, the statutory right to practice law. Much later in 1989, 39 long years after the Supreme Court was born, Justice M.Fathima Beevi was appointed the first Woman Judge of the highest Constitutional Court in India. Over the decades, the role of women in general and of lawyer women in particular, have undergone a sea change. Far from being typecast as either brainless mannequins or suffering, over burdened house wives, they have pierced the 'glass ceiling' to emerge as competent counter parts in the economic structure of families, societies and countries. But the problem is - there is the 'glass ceiling' - and as Justice Gautam Patel (Bombay HC) remarked, the ceiling is 'convoluted, sinister, and holds a very stubborn bias'. This term is said to have been used for the first time by Marilyn Doden, an American writer and management consultant in a 1978 speech. But it was widely publicised with the oft cited article in Wall Street Journal in March 1986, titled "the Glass Ceiling: why women can't seem to break the invisible barrier that blocks them from the Top Jobs"- authored by Carol Hymowitz & Timothy D.Schellhardt.
Plainly put, it refers to the invisible but impenetrable barriers, that block a woman's progress in her professional life, into top executive, managerial or decision making positions. The US Department of Labor's 1991 definition of Glass Ceiling, on the basis of the report of the Glass Ceiling Initiative, describes it as "those artificial barriers based on attitudinal or organizational bias that prevent qualified individuals from advancing upward in their organization into management level positions". Across the world, the term inspired many a discussion on the workplace bias that women faced.
In the field of law, the bias pervades and progresses at every level. At the very base, and at the most crucial phase, it is far more difficult for a lady lawyer to win the confidence of a client, even if it is a female client, to entrust her with work. When it is a law firm, clients prefer entrusting cases with a junior male lawyer than to a senior female. Easy to say, that performance outweighs such prejudices and that a needy client is not swayed by the gender of his lawyer. But, choices based on performance, is only at an advanced level, after the matter progresses or when familiarity with the female lawyer is already established. At the entry or ground level, the competence of a female lawyer to take up the case is under a shadow of suspicion and uncertainty. Even thereafter, the slightest delay, difficulty or inconvenience in the matter is readily attributed to the lack of focus a female lawyer is bound to have and is alleged, almost with certainty, as arising from her familial commitments. It isn't any better when the case progresses. The measure of performance is so uncharitably fixed, that when an assertive male lawyer is viewed with adoration, the same from a female is considered her arrogance. Any accommodation (the Bar friendly word for acknowledgement) given to a male lawyer from the Bench, may be to choose a date, or for a priority in hearing or any other like matter, is respectfully attributed to his experience or seniority, while the same to a female is viewed as either arising from sympathy due to her ignorance or for extraneous considerations. While the quality and merit of a male lawyer is set solely by the standard of performance in court, it is a mixture of a female lawyer's professional competence, societal acceptance and socially approved domestic life. Worse still, an illuminating argument resulting in a landmark judgment is rarely credited to a lady lawyer's hard work and knowledge, and it is more often than not, a thanksgiving to her lineage, an investment for her future, the ignorance of the judge and all considerations extraneous to her merit.
It seems to be that it is impossible for the system to fix the measure of merit in an objective manner. It is no better when it comes to female judges too. Whether it be in fixing the roster for judicial work or in allotting administrative work, the female judges of the higher constitutional courts are made to feel that the decision has a lot to do with their gender. Female judicial officers of the lower judiciary have frequently complained of discrimination, in allotments, transfers, promotions et al.
I am not oblivious to the rising numbers of women graduating from law colleges, the impressive presence of competent lady lawyers or scholarly lady judges and judicial officers. Still, the situation is far from being addressed as 'fair'. The proportion of female to male judges in the higher judiciary in India is pathetically low. As per the latest statistics, there are just two women Chief Justices across twenty five High Courts. There are just 14 designated women Senior Counsel in the Supreme Court as contrasted with 420 male counterparts. Most High Courts don't even consider lady lawyers for senior designations. On an average, only 10% of the total strength of the Judges of the High Courts comprise of lady judges. There was never a female Chief Justice of India and no woman has ever become the Chairperson or vice Chairperson of the Bar Council of India. On a national average, the lower judiciary has 27.6% of its current strength with female judicial officers. Some subordinate courts have lesser representation than the national average. Moreover, as independent lawyers or partners of law firms, the proportion of females to males is pathetically low. Thus, despite the few, who may have broken the glass ceiling, the majority remain, subjects of bias, prejudice and harassment.
The collective resistance to women scaling up the career ladder lies in the system of patriarchy that has been ingrained into to familial, cultural and social psyche of India. The variety of religions systematically served as catalysts to validate and justify patriarchal norms of male dominance and female subservience. The patriarchal patterns- allowing the males to be superior power centres and decision makers, even on private matters of women- were legitimized by making it appear as divinely prescribed. In fact, religions conspired together to make women believe that they are inherently inferior, and that their sufferings at the hands of male partners are virtues for which they will be favoured in the transcendental. Men on the other hand, are projected as the repository of financial and administrative power and their decisions, however incorrigible they be, were treated as 'right' under the circumstances. This dangerous combination of religion and patriarchy sets the stage for capping careers too. Religion, thus works as an opium that numbs the pain of oppression.
Recently, I happened to see a video clip, voicing the opinion of one of the very influential yogis of this country on a question posed to him regarding women who are increasingly stepping out to choose career paths. He commented inter-alia that women are also getting as stupid as men by pursuing procurement. In my humble opinion, much of the problem is in clichéd outlooks. The interconnected web of patriarchy, religion, law and custom that defines and delimits the socio-political existence of any individual, have conjointly carved out gender roles. These roles glorify a man as the chivalrous bread winner and a woman as his often suffering, silent companion, on whose vices and virtues, his success is dependant. The role assigned to a female confines her to the primary responsibility of reproduction. The glorification of motherhood as sacrosanct and sacrificial, is also a ploy to limit her to the said role and to churn regret, if she does anything beyond. Very often, a woman who does anything outside her prescribed role of a partner and mother is assumed to be not doing enough justice to the primary role. Consequently, she happily gives up her career trajectories, confining beneath the glass ceiling, that by unlimited praises and unexplained prejudices eliminate her empowerment and enthusiasm. However, none of the four institutions mentioned above were ever able to properly define the real role of a woman. And that is why the pendulum of public opinion always swings from either glorifying her or vilifying her. She is either the Devi or the Durga, honey or honey trap, saint or sinner, victim or vicious. The societal psyche finds it impossible to accept her as a partner, as an intellectual and emotional counterpart - who may, like any man, have ambition and progression.
Addressing the issue of female bias at the national level, does not in any way mean that such bias does not exist in the global scenario. The bias of gender is an international infection. Female lawyers and judges in their respective jurisdictions across the world have repeatedly addressed this issue at relevant forums.
Rising levels of literacy, education, general economic growth, global civil rights movements, technological advancements and scientific developments questioning archaic regulations imposed through and by religion, have, no doubt, penetrated the patriarchal ceilings to breath into women, the air of awareness and empowerment. Consequently, the 1980s witnessed increased representation of women in all spheres. Later still, recognizing the harsh realities faced by women at workplace, the Apex court in Vishakha Vs. State of Rajasthan [1997], prescribed guidelines to eliminate sexual harassment at workplace. This eventually led to the passing of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. I must of course, give due credit to the various governmental initiatives, legislations and judicial decisions which have gone a long way in diluting the problem addressed here. In fact, Art.15(3) directs towards making a more substantive approach with regard to better educational facilities, representation of women in local bodies and protection at workplaces. In my humble view, the problem of gender bias is a continuing one during a woman's career growth. It therefore calls for positive interventions not just by ensuring representation for the sake of numbers, but also by allowing a woman to rise in her career, without subjecting her to threat, fear and harassment in any form and also by giving her a level playing field.
As a constitutional democracy, committed to non discrimination, inter-alia on the basis of gender, India has to move forward by leaps and bounds to ensure real constitutional compliance. The view of Dr.B.R.Ambedkar that the level of progress of a community can be understood from the level of progress of women therein, still holds good. Judiciary must lead by example, by ensuring a progressive and unprejudiced working environment for women. Such initiative can take the form of more women friendly legislations, strict compliance with gender neutral positions, prevention of all types of harassment at workplace, designation of more women as senior advocates and increased number of female judges.
A healthier and heartier approach to women in the legal field will ensure a balanced justice system in the true spirit symbolized by Lady Justice (blind folded and holding balance scales and a sword) – the allegorical personification of the moral force in judicial systems. Such a transformation from gender discrimination and bias to gender non discrimination can be achieved only if we can pierce and cause to perish the unholy nexus between religion, patriarchy and societal bias against recognition of women as intellectual counterparts. It calls for bold interferences from the various stake holders in the judiciary. It must be ensured that a lady lawyer is treated at par with her male counterpart, if she is professionally competent. Merit and professional ethics must be the guiding forces to choose one over the other. Gender must not hinder career growth and empowerment. It is time for a collective effort from the members of the Bar and the Bench. If there is no change of attitude towards women in the legal field, no amount of legislations can salvage the fairer sex. The Parliament must enact, the judiciary must adjudicate and the executive must implement decisions in such a way that the judiciary will no more be an All Boys Club with chosen cheer girls.
(The author is an advocate and government pleader at the High Court of Kerala)

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