By Swethaa Ballakrishnen

Editors’ Note: This article is based upon preliminary findings of the author’s doctoral research that examines comparative advantages within the Indian legal profession for female lawyers. A more detailed analysis of this data is available from the Harvard GLEE project and a longer version of this article is forthcoming in the Indiana Journal of Global Legal Studies (2013). The author’s current projects on the legal profession include an attrition study on lawyers from large law firms, a law school survey to understand supply side dynamics better, and a study on prestige within legal process outsourcing firms (forthcoming in the International Journal of the Legal Profession).

In 2012, one of India’s most prestigious law firms promoted 13 senior associates to become partners. Seventy percent of them were women. The promotions were reported widely in the news media. Yet, most Mumbai women corporate lawyers are unlikely to find the number of women promoted here to be particularly surprising. Having followed a pattern of gender-blind admission to law school and recruitment by firms, many women find themselves in microcosms where their gender is not often considered of primary importance – at least not on the face of it. As a result, in elite corporate legal circles, being a successful female lawyer is no longer an aberration. Despite the severely male-gendered environment of the profession as a whole, top law firms in the country have managed to afford their associates gender-neutral environments where women are not only represented, but represented on par with their male counterparts in positions of power.

In general, this sort of success for women in established prestigious positions within any profession is noteworthy. It is especially significant when considered against the backdrop of the legal profession, where, globally, women have had to confront deeply hierarchical obstacles to entry and advancement. It is of even greater significance in India, a country that has one of the world’s least egalitarian legal workforces. For instance, as of 2010, less than 10 percent of the enrolled advocates in the Indian bar were women (http://120.138.244.28/advocates/num-advocates.php). As a point of comparison, there are fewer female advocates in the entire country than male advocates in the State of Uttar Pradesh, alone. This dissonance is pertinent from an organizational standpoint because the Indian legal profession is hardly the perfect environment for the emergence of a gender-egalitarian workspace.

My research investigates the dynamics of this finding, which is at odds with what we would intuitively expect. Essentially, I ask: what about these new law firms and the women who inhabit them can help us understand this recent—and seemingly anomalous– development? How do some women manage to come out ahead in a larger professional environment that is otherwise circumscribed by gender? I broadly suggest that the answer lies in evaluating a range of potential factors that I tag as Firms, Frames, Families and Futures.

Firms

While individual characteristics (such as education and family background) and interactional dynamics (the kinds of peers and mentors they have, the client relationships they are capable of forging) are central to understanding women in senior positions in large Indian law firms, the value of these characteristics works best in a supportive institutional context.

Litigation remains a stubbornly resistant male-dominated bastion. Thus, a common theme in my interviews with senior female firm lawyers was their having the opportunity to distance themselves from a traditional career in the hierarchical world of litigation. By not replicating the male-dominated hierarchical world of litigation in corporate practice, elite corporate law firms are offering a welcome and unique organizational alternative for the highly-educated female lawyer who wants to pursue a non-litigation legal career. When asked whether she felt as if she were part of a “diverse” class seeking inclusion in the profession, one senior lawyer offered: “Within the firm? Of course, not. Within the profession? (pause) I don’t think anymore. Maybe in litigation—but not in these types of corporate law firms.”

The perception of this senior lawyer that even within the profession as a whole she was just another lawyer, not a member of a “diverse” class, contrasts dramatically with the reality of a low female presence in the vast remainder of the profession. The perception reveals the power of new organizations (here, large law firms) to set prevailing norms and assumptions (gender-egalitarian professional spaces). It suggests one reason why women might be committed to doing well within these firms: there are few other places where their commitment is likely to pay off as well.

Frames

Law firms have distinguished themselves in the Indian legal profession by structuring themselves differently from traditional legal practices. But being a new kind of organization alone is usually not enough to dismantle persistent hierarchies. We know that in any organizational emergence story, building truly innovative workspaces is difficult because old frameworks of operation and management always attach themselves to new forms. In this case, conventional logic would assume that even new kinds of organizations would typically follow in adopting the hierarchies that reflect the environments they are embedded in. In other words, these large law firms, even as recent additions to the Indian legal landscape, should have been as deeply male-gendered as the professional framework from which they sprouted. So the question arises: how have these law firms managed to liberate themselves from the crutches of the larger, male gender-bound, profession?

A line of research by social psychologist Cecilia Ridgeway offers one explanation. Ridgeway, who studies women in technology firms, finds that, overall, women do better in start-ups (which are seen as a new, innovative types of workplaces) than in traditional workspaces that reiterate hierarchies. However, even in start-ups, women in the field of engineering have only limited advantages because, overall, the engineering field is strongly male-gendered, and gender hierarchies attach themselves to any new organizations that arise, no matter how innovative they may be. On the other hand, women in biotech startups enjoy superior advantages because the novel organizational start-up structure is embedded within a field (life sciences) that does not have a strong gender identity.

Accordingly, one explanation for the advantages inherited by women in these relatively new workplaces might be that these institutions are so new that there is no expectation or popular conception that the work being done there is “a man’s job.” These firms do new kinds of work (mostly transactional), for new clients (India’s active international transaction scene has followed the opening of markets in 1991) within organizations that have never been structured quite like this before. Unlike with male-centric assumptions that stifle litigating careers by women, large law firms in India are truly free to reorganize themselves in ways that creatively attack traditional hierarchies.

Families

The new trend in gender-equality in law firms also gets its impetus from women themselves. A majority of women – and associates in general – who work for these firms are graduates of the country’s premiere National Law Schools, that select incoming students using highly-competitive entrance examinations, and graduate as many women as they do men from their rigorous undergraduate curricula. These graduates do not make a dent in the disparate gender ratios in the larger profession, but within these elite cliques women garner egalitarian treatment on merit alone.

The typical law school student from a national law school—and, by extension, the typical associate on the fast-track to partnership at one of these firms—is an English-speaking, private school-educated woman from an urban, educated family who finished law school at 21. She is likely to have made independent choices not just about where she would want to work, but also where she wants to live and who she would like to partner with or marry. As a result, her sense of agency when negotiating her professional interactions is not learned behavior, but comes naturally. Furthermore, because the typical law student starts at one of these firms in her early twenties, she enjoys a unique life-choice advantage that her global peers do not: she can be a partner by the time she is 30. Unlike an American associate who typically starts her first law firm job at 25 and cannot envisage a partnership position until later in her 30s, the Indian law firm trajectory—at least for now— places many women in positions of power without having to sacrifice choices regarding childbirth and family (or in many cases, choose to not do either).

If this does not paint a picture of the average Indian working professional, it is because it is not intended to. But while there is no doubt that these firms are championing an independent and evolved modern Indian woman with certain class and familial advantages, it remains that these women have not had other avenues by which to exercise these advantages in the past.

Futures

Much of the data I base these observations on are theoretical extensions of pilot interviews with senior female lawyers at large law firms in the country. While data suggesting the ability to negotiate gender hierarchies within these firms is no doubt promising for both women and emerging organizations alike, these findings are limited by important caveats. For one, there is no direct comparative case here, either at the individual level (i.e. male lawyers) or the organizational level (i.e. women in litigation or in companies), because these in-depth interviews were conducted only with senior women at law firms.

Secondly, these firms are mostly in Mumbai, India’s financial capital and a city whose “big firm” culture is more distinctly shaped by globalization than, for instance, Delhi, where large law firms are organized differently. Women I spoke with in Mumbai would often reference how “this would have been different in Delhi” while explaining their particular advantage in their large law firm. Or they might mention “friends from law school” who, in their words, “had it very different” in a similarly placed law firm in another city.

Third, limiting observations to people in these firms leaves an important section of the population outside of their purview: women who leave these firms. To truly understand the experience of these organizational forms and the barriers to success within them, understanding why women leave these firms is as crucial as understanding how they succeed within them.

Fourth, the entire advantage crafted by these experiences may be a function of age. And the reasons I suggest for thisas advantages – the institutional novelty of these firms, the ability of these women to balance their work and family – might be short lived advantages. It is no doubt true that these women flourish because the challenges of motherhood and young children – traditional laxatives causeslaxativesdrivers of attrition – are not yet fully matured in their individual cases. But as these firms grow in size and respond to larger market requirements, more women in later stages of their lives and careers will have to make choices about balancing work and family. At this stage, it seems possible to be optimistic that gender will not be salient, but contrasting it with other evidence from the field leaves at least some room for doubt. For instance, the Rainmaker report, which focused on a more senior demographic of women (the sample had an average age of 34 and over a third had more than ten years in practice) seemed to give the impression that most women lawyers did think that motherhood was a strong barrier to career advancement.

Finally, it could be that, given how few advantages there are for advancement within the profession, women who do succeed tend to self-report even greater advantages than they actually receive. While there is no reason to believe that these women are misstating their experiences, it is possible that there is some dissonance between their experiences and the exact career advantages rendered them. Of course, without systematic data on promotions and rewards, making absolute comparisons is difficult. But reports from the field seem to suggest a similar dissonance: over half the sample (n=150) of female lawyers in the Rainmaker Survey released in 2012 reported to having an equal work-life balance while another 42% felt that while they spent more time at work, they had some balance between work and life. Yet, at the same time, 90% of them thought that the lack of flexible hours, and home-related barriers like pressures to start a family (77%) and the lack of day care (85%) were the biggest obstacles at work. Thus, women were quick to confirm advantages in general but had to be pushed to tease out specific barriers they had to overcome to access these advantages.

The explication of these limitations does not diminish the fact that this is an important time in the history of the Indian legal profession. The women who are unlocking unprecedented success within environments that do not rely on their gender are a unique case not only in the context of the gender-hostile Indian legal world, but in the history of the legal profession more globally. Now that some sources of these advantages have been located, more research is required to truly unpack the mechanisms that can explain these optimistic aberrations. It is only then that we can begin to make a meaningful inquiry into the emergence and sustainability of the non-gender-salient professional workplaces.

Swethaa Ballakrishnen is a doctorate candidate at the Sociology Department at Stanford University and an affiliate research fellow at the Program of the Legal Profession in Harvard Law School. Her research broadly investigates organizational innovation, stratification and global influence in emerging markets. She can be contacted at swethaa@stanford.edu.

By: Latika Vashist

“He was the son of a lawyer, often born into a family where the practice of law had been a tradition for generations. He was a Hindu and, more likely than not, a Brahmin. He was born in an urban area into a wealthy or upper middle-class family…He may have met the usual criteria of merit- integrity, professional competence, incorruptibility, and neutrality towards litigants- but was not selected for that reason. His religion, seniority, state and region of origin, among other considerations, were more weighty than merit as traditionally defined.”

George H. Gadbois, Jr. (2011), Judges of the Supreme Court of India

This is the description of the archetypal judge of the Supreme Court of India that Gadbois describes in his rigorously researched and recently published work on Indian Supreme Court judges during the period 1950-1989. The dominantly pervasive He in the above account speaks widely of the crisis of under-representation of women in the Supreme Court of India. It was not until October 6, 1989, that the Indian Supreme Court had its first woman judge, M. Fathima Beevi, who was appointed at the age of 62. This appointment though historic, was far from transformative for gender diversity on the bench. Since then only four more women have been appointed to the Supreme Court of India. Justice Sujata Manohar was appointed in 1994, Justice Ruma Pal in 2000. Justice Gyan Sudha Misra and Justice Ranjana Desai, appointed in 2010 and 2011 respectively, are presently serving in the Supreme Court. The figures in the High Courts are equally skewed:

It is astounding that the conspicuously dismal gender ratio of the judges in the higher judiciary (High Courts and the Supreme Court) in India has failed to generate any meaningful debate on gender diversity in the Indian judiciary. Any attempt to raise and discuss this concern is thwarted with the apprehensions that, at best, are articulations of a “trickle-up” theory (the increase in the number of women lawyers would automatically increase the number of women judges in high courts and the Supreme Court) and at worst assume the merit argument (i.e. when women will become competent and meritorious, they would definitely be appointed as judges!). And what we are left with is an appalling, absolute silence about this issue in spite of many questions requiring serious deliberation. What are the reasons for exclusion of women from judiciary? Why is it important to make an argument for inclusion of women in the judiciary? If representation of women judges is important, then what steps should be taken in India towards this end?

This paper seeks to open up the above questions in the context of the judiciary in India. I shall draw upon on a survey that was undertaken by Jindal Global Law School of O.P. Jindal Global University during May-July, 2012 to gauge the reasons behind poor representation of women in higher judiciary in India.

The survey questionnaire was circulated through email to around 1,500 advocates (in Delhi, Mumbai, Bangalore, Chennai and Allahabad) and law academicians (in law schools and faculties across India, including Delhi University, National Law Schools, Indian Law Institute). Despite repeated reminders, we (at Jindal Global Law School) received a surprisingly low response of 101 respondents who successfully managed to complete the online survey. Of those who did respond, 50.5% were law academics in India and others identified themselves as practicing advocates.

Due to the limited response which is hardly representative of the community of practicing advocates and professors, the findings of the survey cannot be taken as conclusive in themselves. Though the findings do not furnish any substantive evidence of the “real” reason behind the under-representation, I rely on these findings as signposts- indicators for further research on this scarcely researched issue. Without making any categorical generalizations, based on a very small sample, I shall use the findings to explore the issue and locate a theoretical position on the question of gender diversity in the judiciary.

Reasons for the Absence of Women from the Bench

Generally the absence of women from the bench is solely connected to the absence of women in litigation and the absence of senior women advocates. This, no doubt, is an important factor that limits the pool of women from which selection has to be made. The exclusion of women from the bar is also evident from the fact that the Bar Council of India (BCI) which is a national level body regulating the bar in India, is a body which predominantly, or rather entirely, is constitutive of men as its members. Out of the 20 current members of BCI, none is a woman. No Chairperson or Vice Chairperson of BCI till date has ever been a woman.

If this were not enough, there is a complete absence of women in the Committees of BCI. Not even a single committee is constitutive of women. Still further, it was pointed out in a recent study on women legal professionals in India that women constitute less than ten per cent of the Senior Counsels or Advocates-on-Record. These figures demand an inquiry into the systemic processes and structural apparatus which restrict conferment of responsibilities of power to women in the legal profession. To attribute the exclusion of women advocates from the pool of appointments to lack of meritorious women advocates is ignoring the structural and systemic considerations that are significant to women’s entry and progress in the judiciary.

It is noteworthy that while the majority of the respondents (34.5%), of the survey, believed that lack of meritorious women lawyers is not a barrier at all for women in entering the judiciary, a much higher percentage of respondents (62.1%) identified lack of transparency in the judicial appointments to be a significant barrier for women entering the higher judiciary in India.

The lack of transparency in judicial appointments became an endemic problem after the Supreme Court decision in Supreme Court Advocates-on-Record Association v. Union of India (AIR 1994 SC 268). In this judgment the court decided that a collegium, constitutive of the judges of Supreme Court and the Chief Justice of India, would be instrumental in appointments to be made in the Supreme Court. This radical interpretation took away the power of appointment from the executive and vested it solely with the judiciary. This extra constitutional logic of self-serving interpretation has been critiqued by both the bar as well as Indian academia. The Indian Judiciary has been accused of being the only judiciary in a democracy which appoints its own self! However, despite the long standing criticism the system goes on and higher judicial appointments remain shrouded in secrecy and non-transparency. This has foreclosed the introduction of all possibilities of diversity that move beyond tokenism. Around 60% of the respondents believed that it is the male dominated appointment collegiums that constitute as a major hindrance for inclusion of women in the higher judiciary. These figures are further corroborated by the fact that the gender-ratio of judges in the subordinate judiciary, where appointments are based on objective criteria of open competitive examination, is considerably better than the High Courts and the Supreme Court. Trickle-up to high courts and Supreme Court does not happen since the criteria of selection and appointment at the higher echelons of judiciary remains largely a subjective issue.

It was also pointed out by 42.5% of the respondents that disproportionate family and household burdens, and lack of educational opportunities (48.2% of respondents) constituted significant barriers for women’s entry into higher judiciary in India. Interestingly, more than one-third of the respondents (35.6%) felt that gender stereotypes about women being too emotional, sentimental and irrational was not an obstruction for women (though 27.5% of them felt that it was a significant barrier for appointment to the Supreme Court). Owing to the small sample size these findings may not be sufficient to draw generalizations, but they do call for establishment of gender task forces to surface hidden forms of gender- based discrimination faced by women legal professionals.

Why Should Women be Included in the Judiciary?

Difference Argument

Many claims for inclusion of women in the judiciary are couched in the language that women judges would speak in a different voice. One respondent remarked that women judges would “address gender specific issues” and their presence would ensure “a more humane approach towards gender related offences.” It was also said that women judges would “understand diverse emotional and social complexities.” Women judges, it is believed, would understand women related issues better than their male counterparts and thus substantially improvise and feminize the quality of justice. 62.4% (76.08% of them were women) believed that women will bring “a valuable and new perspective to the bench.” Here it is important to fully understand and unpack the expression “valuable and new perspective.” Would women judges bring a new perspective because their sex makes “women have better conflict resolution skills” (as suggested by one of the respondents)? Or, because, women are better at understanding women-related issues (as 23.8% respondents emphasized)?

The argument that differences based on sex would lead to discernible differences in rendering judgments because women think differently than men, is not based on any empirical evidence. Moreover, this simplistic connection between sex and thought-process is fraught with the dangers of essentialism, i.e., it makes an assumption of an essential quality of “womanness” shared by all women, and only women exclusively. Such an assumption imagines a universal category of “woman” without any internal divisions and disagreements. It assumes that every woman is automatically a feminist, merely based on her sex and thus obfuscates the distinction between “sex” and “gender”, the latter being a social construct that symbolizes power. Using sex/biological status as the variable for greater representation in the judiciary fails to locate the adjudicating capabilities of the judge in his or her class, region, ethnicity, generation, educational background, judicial philosophy, etc.

The corollary to this essentialist claim—it is impossible for women to represent men, just like it is impossible for men to represent women—can potentially disadvantage women by restricting their judicial functions only to women and children-related issues like juvenile justice, divorce cases, sexual harassment, etc. Apart from pinning women judges to stereotypes about women—the ethic of care, emotions, greater sensitivity—such a rationale diverts attention from the immediate need for gender training for all judges notwithstanding their biological status or sexual orientation. Gender symbolizes power. Understanding gender would, on one hand, unmask the reality of patriarchal power being exercised by woman, on the other hand, would enable us to appreciate the fact that many “feminist decisions” in the history of Supreme Court of India have been delivered by the male judges.

Diversity Argument

53.6% of the respondents rejected the aforementioned difference argument and stated that “the outcome is not dependent of the sex of the judge”. A female respondent, a practicing advocate, stated that she has witnessed “shocking statements made by women judges in gender-related violence cases as well!” So, if the difference argument is rejected, should a claim for greater women in judiciary still be made? The answer is in the affirmative.

Having more women on the bench is important not because that would change or improve the decisions of the court, but because it would lead to greater diversity of views and experience which in turn would enhance the quality of judicial decision making. This gives a new meaning to the expression “valuable perspective.” Women would bring valuable perspectives not because they are women but because their presence on the bench would make judiciary more diverse, inclusive and reflective—values that would significantly contribute to the legitimacy of the institution. The legitimacy of the judiciary rests in the institution being seen and respected as an impartial and fair institution. Adequate (if not proportionate) representation of women on the bench would play a significant role in enhancing the de facto legitimacy of the judiciary as a democratic institution. On one level, it would deconstruct the hegemonic “social meaning” that women do not make good judges, on another level it would reconstitute the judiciary as a reflective body—reflective (and thus representative) of almost half the population of the country. The presence of women on the bench would counteract the “perception of bias” against women, even if it does not make any substantive difference to the outcome of the cases. This essentially turns the argument from difference to diversity. This shift signifies fair and equal access to justice for all, compared to the outcome-based argument based on difference. A woman judge may not decide the case differently than a male judge, but a woman litigant may perceive the outcome to be the result of a fair and impartial trial. So it is for its own credibility and effectiveness that the judiciary should be striving for gender diversity.

Affirmative Action for Gender Diversity in the Judiciary

The crisis of under-representation of women in the judiciary needs to be addressed with concrete action towards inclusion. What form should such affirmative action assume? In India, affirmative action is understood in terms of reservation of a fixed number of seats. The Constitution of India mandates 33% reservation for women in the elections of lowest tier of governance- Panchayats.

There is a long pending Bill for reservation of 33% seats for women in the Parliament. There is also a provision of horizontal reservation for women in lower judicial service examinations. Should the same scheme of reserving a fixed number of seats be extended to High Courts and Supreme Court of India? 45.1% of the respondents of the survey stated that there should be affirmative action for women in the judiciary but it should not take the form of reservation of seats. 58.5% of the respondents said that reservation is not a good strategy at all to increase women’s participation in higher judiciary. It was instead pointed out by 76.5% respondents that it is very important that appointment process should be solely based upon merit.

This takes us back to the politics of “diversity” versus “merit” where the two are set as antagonistic and competing goals. There is no doubt that reservation may not be a workable solution because of the perception that it would compromise merit, but merit cannot be considered solely and exclusively to vest with men

To resolve the myth of merit, it is significant to deconstruct the notion of “merit.” Are quotas/ reservations inherently against merit? Or is it possible to think of gender diversity as constitutive of a meritorious judiciary. If an individual’s appointment enhances the legitimacy of the judiciary as a democratic institution—does it not qualify as an appointment based on merit? These are extremely important questions that need extensive debate and discussion amongst practitioners as well as theoreticians.

It is also very important to understand and explore the meaning(s) of affirmative action. Is affirmative action synonymous with quota/ sex based reservation of particular number of seats, or does it have the potential of taking multi-faceted dimensions according to the position/ office/ institution in question. The survey reveals that in the higher judiciary in India, affirmative action can acquire the form of systems that make appointments to higher judiciary more transparent (as emphasized by 62.2% of the respondents).

It can also concurrently mean that the current system of appointment (of male dominated collegiums) should be changed to include more women on the appointment panel (suggested by 47.6% respondents). But the question is whether more women on the collegiums would automatically produce more women judges? Sally J. Kenney in Gender and Justice: Why Women in the Judiciary Really Matter (2012) argues that merely having a critical mass of women would not necessarily increase the number of judges in the future. She argues that concerted steps introducing qualitative changes in the judiciary should be taken to train collegiums/ judges to avoid discrimination and stereotyping and to secure a gender diverse bench a priority of the appointment process. Here, it is pertinent to note that the Indian Supreme Court has maintained considerable regional diversity so that the Apex Court represents all the regions. A similar approach should be adopted for securing gender diversity. It may require setting guidelines for the appointment process (constitutional amendments making diversity an explicit goal on the lines of section 174(2) of South African Constitution; adopting new strategies (open advertising for candidates for judicial appointments) or even creating new institutions (e.g., Judicial Appointment Commission, U.K.). Immense benefit can be drawn from the experience and strategies adopted in other jurisdictions to achieve this end.

The survey, on one hand, emphasized the need to secure gender diversity, on the other hand, maintain ‘merit’, to be the most significant consideration in judicial appointments. It also opened up possibilities to think beyond quota-based reservations for women in the judiciary. Affirmative action towards gender diversity must take the form of overhauling structural changes in the process of appointments. To prevent the higher courts from turning into “old boys clubs,” the establishment of a more inclusive system of appointment, which is not limited to sitting judges, is imperative. The legitimacy of the Indian legal system is dependent on whether the judiciary reflects the total fabric of society and whether its decisions are responsive to the needs of different segments of the society.

To achieve these twin goals, we first require more women (irrespective of whether they are feminists) and then more feminists (irrespective of whether they are women) on the bench.

Latika Vashist is an Assistant Professor and Assistant Director (Clinical Program) at Jindal Global Law School of O.P. Jindal Global University. Her areas of research include feminist legal theory, policy of criminalization and criminal law, and constitutional law. She can be reached at latikavashist@gmail.com.

By Ajeet Singh

India’s public interest litigation revolution started in earnest 34 years ago in 1979, when, as the Indian Express described it in a January 6, 2010, article, “a woman lawyer confidently climbed the 17 steps of the Supreme Court and walked into a cold, thick-walled courtroom without a thought for the frowns trained at her from the high priests of Indian judiciary and her male colleagues.” That solitary figure was the indomitable Pushpa Kapila Hingorani. Interviewed for this newsletter recently, she stated modestly: “I filed a habeas corpus writ petition under Article 32 of the Constitution, prepared by my husband, N.H. Hingorani.” The facts underlying the writ petition were laid out in two articles published in the Indian Express newspaper in January 1979 by K.F. Rustamji, a distinguished and highly respected senior police officer. The article shed light on the appalling suffering of accused persons all over India in jail awaiting trial (“undertrial prisoners”).

In its decision in the case (Hussainara Khatoon & Others vs. Home Secretary, State of Bihar case ([1980)] 1 SCC 81) (also known as the Undertrial Prisoners’ Case), the Supreme Court of India recognized the right of anyone arrested “to expeditious trial and legal aid” as a fundamental right under Article 21 of the Constitution of India. The Undertrial Prisoners’ case led to a flood of public interest litigation, which to this day, is one of the most effective ways to hold the executive branch of government accountable to its citizens. Ms. Hingorani was the pioneer who sparked that revolution.

The Supreme Court bench that heard Ms. Hingorani’s writ petition was so shocked by what it learned during deliberations that it ordered the immediate release of over 40,000 undertrial prisoners from various jails nationwide. Shocking facts were revealed in the case. Many prisoners were in jail for longer periods than if they had been charged, tried, convicted and given maximum sentences. People were held in jails for as long as ten to 12 years, or even longer periods of time without a trial or bail. These forgotten inmates included a man whose file had been lost, a girl of ten who had allegedly stolen something in a cinema hall. Probably the most distressing and common cases were of women who were in jail, not because they had committed crimes, but because they were victims who were needed to give evidence in cases.

The Court observed that “the offences with which some of them were charged were trivial, which even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity were in jail, deprived of their freedom, for periods ranging from three-to-ten years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial.” While there were a few public interest cases brought before 1979, public interest litigation really came into its own after the Undertrial Prisoners’ Case. What made public interest litigation different was that a case could now be brought by any non-aggrieved member of the public or even the court itself (suo motu or sua sponte), rather than only by an aggrieved party. The petitioner could be a member of the public, a non-governmental organization (NGO), an institution or an individual. Public interest litigation is brought under the original writ jurisdiction of the higher courts, in essence the writs of habeas corpus, mandamus, and certiorari, but framed in the Constitution as Article 226 for the High Courts and Article 32 for the Supreme Court. Recent public interest litigation has focused on environmental protection, town planning, public safety and the right of the poor to food paid for by the government. Ms. Hingorani has the singular distinction of being the catalyst for the explosion of public interest litigation whereby the judiciary began issuing orders to remedy injustices that had been allowed to fester by a cobwebbed and special-interest mired executive.

In a long and distinguished career, Ms. Hingorani, a professed Gandhian, has filed and argued over 100 pro bono public interest litigation cases in the Supreme Court of India. Many have resulted in judgments providing relief to the poor and under privileged.

The now 85 year old Ms. Hingorani was born on December 27, 1927, in Nairobi, of parents who had migrated to Kenya from India. She was brought up in a spiritually observant reformist Hindu community, with a conservative social outlook. Of her education, Ms. Hingorani told this newsletter:

After completing my schooling in Nairobi, I wanted to go abroad for further study. However, it was not considered appropriate for girls in those days in our community and my mother wished to get me married at an early age. Despite the unwillingness of my mother, my father, a teacher and social reformer, encouraged me to apply to various universities in Britain. I became the first girl in our community in Nairobi to do so and to go overseas for higher studies. At the age of 19, in 1946, I left Nairobi for London to join Cardiff University to study English, Economics and History. Along with my studies at Cardiff, I also joined the Honourable Society of Lincoln’s Inn in London to be a barrister.

Over the next few years, Ms. Hingorani remained involved in different activities. These activities included working in villages in India, writing books for beginning readers, participating in a UNICEF research project on children of Asian communities in Kenya, teaching at the University of Delhi, conducting training in drama in an institute run by UNESCO and the Asian Institute of Drama, and finally becoming barrister in 1960.

I came to settle in India in the year 1961, and started legal practice in the Supreme Court of India, where only one woman lawyer was in practice at the time. In those days women in law practice had to face several challenges. Acceptance was the greatest challenge for women lawyers when I started legal practice in India. Nobody thought we were serious about the profession. But presently, there is no such challenge for women lawyers. Now, female attorneys just need honing of their skills appropriately to achieve leading positions in the legal profession. Undoubtedly, there are immense prospects for women (today) to practice law in India, with a number of women also becoming judges.

When asked what sorts of strengths in the next generation of women lawyers/legal professionals would help them handle the challenges they will likely face, Ms. Hingorani suggested women lawyers have “the courage to face challenging circumstances, both professionally and socially. They should be equipped with adequate skills to ably compete with others…. Indomitable optimism and [a] can-do spirit would further help them while dealing with adverse situations, enabling them to succeed in the legal profession.”

Ms. Hingorani emphasized that it is essential that women lawyers practice in their areas of competency from the beginning. They should be groomed… accordingly from the very beginning [and] they should be “encourage[ed] to be independent and to have the confidence to stand alone. Imbibing such strengths and values will definitely reshape their personalities [as effective lawyers].”

Harkening to her own social activism, Ms. Hingorani added that early grooming and encouragement “would not only help women enhance the scope of their professional activities, but also to play a greater role in the society at large.”

Ms. Hingorani is currently a senior Partner in a family law firm – her husband Mr. N. H. Hingorani, her son Dr. Aman Hingorani, and two daughters Ms. Priya Hingorani and Dr. Shweta Hingorani are all advocates. Her daughter-in-law, Dr. Manni Hingorani, is a surgeon. Ms. Hingorani said that she was fortunate to be able to develop her legal skills and social activism because of her own strengths and commitment but also because of the support, first of her father and then of her husband. She, in turn, supported and encouraged her own daughters. Dr. Shweta Hingorani is a corporate lawyer and gave this newsletter her perspective on women lawyers engaged in corporate law:

The development of corporate law and corporate law firms in India has essentially taken place post liberalization of the economy in the early 1990s. Accordingly, compared to the West, this has been a fairly recent phenomenon. Nonetheless, there already exists a discernible trend of greater participation by women in corporate law and, as in the case of the corporate sector, more women are occupying senior positions in corporate law firms. In my experience, firms by and large offer a level playing field for women legal professionals. However, it may sometimes be a challenge to establish one’s authority and competence, at least initially, with certain clients, particularly those drawn from government and the public sector.

Ms. Priya Hingorani, active in the practice of law since 1990, has appeared in the Supreme Court of India, High Courts of Delhi, Calcutta, Bombay, Chandigarh, Orissa and Jammu & Kashmir as well as subordinate Courts and Forums. She also enjoyed the prestigious position of being the youngest advocate ever to be elected as Vice President, Supreme Court Bar Association, New Delhi (2005-2006). On being asked how the legal profession has changed for women since her mother’s beginnings in law, and what challenges women might face in the future, she commented:

Now, many more women are opting into legal professions, but most of them prefer to join the corporate sector and quite a few [are working] in litigation. As far as the biased situation against women in particular is concerned, it is still very much prevalent in the legal profession as well. However, during my mother’s time it was greater because only a few women were in the legal profession. Women have to work harder to prove themselves again and again, particularly in the litigation sector. There is a condescending kind of attitude towards women in the legal profession. That’s why [maybe] only five or six out of 600 women lawyers could have been designated as senior advocates and achieved the leading positions…. Nevertheless, women lawyers can still make a lot of difference like my mother did by becoming path-breakers. However, it is not easy to survive independently for self-made women lawyers.

Echoing her mother’s experience, Priya Hingorani added, it would have been very difficult for me also to reach my present position without my family support.

Ajeet Singh is an LLB final year student at Law Center-1, University of Delhi., He is also a journalist with 12 years of experience in writing on various subjects, editing and translation (English-to-Hindi), and is currently associated with S-Media Group (www.smediagroup.in) as an assistant editor. He already holds triple post graduate degrees in English, Political Science and Economics, as well as a PG Diploma in Journalism. He was also Fellow, Institute of Constitutional and Parliamentary Studies, New Delhi in 2007. He can be reached at: astatran@gmail.com
Editors’ Note: This article is based, in part, on conversations by the author with Ms. Hingorani and her family.

By Naina Kapur

On December 16, 2012, an upwardly-mobile young woman from a lower-middle class family and her male friend saw “Life of Pi” at a theatre in New Delhi. Afterwards, they boarded a bus to head home. What would have been a common evening for young people in the city became a living nightmare for the woman even as her male companion fought bravely to save her. Knocking him unconscious, six men brutally gang-raped and tortured the woman for one hour on the moving bus. Two weeks later the she died of the brutality inflicted upon her. The incident outraged citizens all over India and led to mass demonstrations, particularly in New Delhi, against ineffectual responses to sexual violence against women. Did public outrage or calls for justice change anything?

Discussions about sexual violence have never been common in law offices or law schools, let alone amongst the Indian public. Yet from birth to death, sexual violence shapes the contours of women’s everyday life in India. That is because sex and law have traditionally been awkward companions. At most, rights such as freedom of mobility, expression, equality and life, which could be claimed as human rights for others, have historically been scripted as crime-specific when it comes to women and sexual violence. Even when sex emerged from the closet in reference to offenses against women in the 1970s, it was largely in context of the “appropriate victim” where a woman’s “passive silence was deemed consent.” Tuka Ram and Anr. vs. State of Maharashtra (AIR 1979 SC 185) (also known as Mathura’s case for the name of the victim).

Through the prism of criminal law, violence of a sexual nature in India has been characterised by fixed assumptions about women. My earliest awakening to this happened post criminal law amendments on rape sentencing in the 1980s. At the time, I was a corporate lawyer with a mainstream law firm. On a winter morning in 1989, I woke to a newspaper item reporting how the Supreme Court of India had reduced a mandatory minimum sentence awarded by the lower courts against two policemen for the custodial rape of a minor girl, from ten years to five years. The ground of the reduction in sentence was that the complainant was a girl of “easy virtue,” “used to sexual intercourse” and of “questionable character.” Prem Chand & Anr. Vs. State of Haryana (AIR 1989 SC 937). Instinctively, I scrambled to seek out women’s groups to file a review. My conservative law firm was disinclined to support my efforts until I mentioned “the firm will look good and it won’t cost anything”- a feather in the cap for any law firm.

Our review petition was heard by the Supreme Court. Standing as the only woman amongst all male counsel, I recall listening with intense discomfort to the Bench of Supreme Court Judges and others chuckle over the complainant’s “moral character” – as if to suggest the sentence reduction was well-founded. In the end, the Court upheld its earlier decision with a rider that any reference to the girls “conduct” was because of the 10-day delay in reporting the offense. State of Haryana & Anr. vs Preme Chand (1990 AIR SC 538).

How did such flawed logic become legitimate criteria for lesser justice to women who experienced sexual violence? The blinkers of mainstream legal practice dissolved and I entered the margins of legal activism or as I prefer to call it, “legal innovation.” I did not know it then, but my trajectory was always towards mapping women’s experience of sexual violence and bridging it with Constitutional Equality, a pursuit which led me to the value of experiential learning.

Travelling with a colleague to rural India, from Kerala to Kashmir, Assam to Maharashtra, we paused to ask women a simple question – “what does justice mean to you?” Across regions, language, class, caste and context, the reply was uniquely the same- “ensuring my sense of self remains intact.”

Equipped with that insight, we returned to Delhi to co-found Sakshi, (meaning “witness”) a non-governmental, not-for-profit centre to address issues realted to sexual violence. Over the years, I continued to meet women across the spectrum trapped in the lived reality of retrograde attitudes that shaped mainstream law and the larger response of a status quo. I encountered women who had suffered a variety of sexual abuse, society’s apathy to it, and the callous attitude of the judicial system. These included a housewife who felt compelled to remain in a marriage after being subjected to electric shocks in a medical facility, because her husband claimed she was not sexually “up to the mark;” or parents who paid an abusive son-in-law vast sums of money to take their daughter back to pre-empt social ostracism; or a seven-year old girl who underwent ten days of cross-examination in a court-room packed with lawyers and offenders for complaining against her sexually abusive father. And I continued to see it in the corner offices where women endured the intangible inequality of sexual harassment. None of this was conducive to legal progress let alone supportive of “that sense of self” for women.

A significant turning point emerged in the 1990s because of a rural level change agent named “BD.” Engaged by the Rajasthan State government to prevent child marriages in Bhateri District, “BD” succeeded in preventing the marriage of a one-year old in an upper caste community. From then on, she was subjected to persistent forms of indirect sexual harassment by men of that upper caste community. “BD” complained to the local authority that did nothing. Instead, as a consequence, she was gang raped by five of those very men. The Bhateri gang rape case became a renewed possibility to connect the dots between sexual harassment, rape and women’s Constitutional equality. In a class action litigation before the Supreme Court of India, we proposed that sexual harassment be recognised as a violation of women’s equality rights and that institutions be made accountable and responsible for upholding those rights. Delivering a landmark judgment in Vishaka vs. State of Rajasthan (1997 SCR 3011), the then Chief Justice, J.S. Verma, declared that “each incident” of sexual harassment was a violation of women’s constitutional right to equality and dignity. In creating “legally binding” directions for all workplaces and institutions, Justice Verma took a quantum leap. Adapting the United Nations Convention to Eliminate All Forms of Discrimination Against Women, 1979 (CEDAW), into domestic law, the Court established that sexual harassment was no longer to be ghettoised by the archaic language and the limitations of criminal law. Rather, the failure to prevent sexual harassment emerged as a systemic failure of women’s equality rights. That shift in perception held immense potential to enrol every player, at every step, in every part of the system faced with addressing sexual harassment to consciously ask: “is my action enabling the equality rights” of this woman? After eight years on the margins, Constitutional Equality had finally breathed life into the lived experience of women, sexual violence and mainstream law. But to what end?

In the 16 years that followed this historical shift in perception, rather than authenticate the Vishaka vision through meaningful execution, the Government fell inexcusably silent. A silence which saw the rift between perception and reality widen along with a disturbing public indifference towards sexual violence.

It was an omission that cost us dearly on December 16, 2012, as a nation, as Indians, as men and women, across all walks of life. There was an overwhelming, and unprecedented rally from an otherwise habitually complacent public in its protest and outrage against the rape. Overnight, thanks to India’s youth who dragged it onto the front pages of newspapers, social media, public talks, protests and into our very homes, “rape” became a centrepiece of mainstream life in India. Change was evident in the droves of men who protested alongside the women—a presence unheard of 20 years ago. It was a change fuelled by an unexpected voice from the margins—that of the young man who accompanied his friend that fateful night. The power and courage of this one young man, who carried his profusely bleeding friend to the police van on his own despite a fractured leg, while two policemen simply watched; a man who never met with an iota of government support and obtained medical care at a private hospital; a man whose only goal was to see justice done and change arrive, rendered us speechless. Rising from the ashes of his own pain, loss, and enduring memories of that horrendous night, he quietly and candidly shared with us on national television, the truth of appalling insensitivity on the part of the police, bystanders, hospital services and the Magistrate along with the role of government politics. It was a classic case with an atypical witness—a young man, not only that rare witness to a rape, but one who exposed the elements of what was so deeply broken in our criminal justice system when it comes to women and sexual violence.

Then, whether by accident or fate there was a ray of hope when, as a response to the December incident, Justice J.S. Verma (of Vishaka fame) was asked to head what came to be known as the Verma Commission to review law reform on rape. With unmatched attentiveness, patience, homework and grace, the Verma Commission became a unique beacon for inclusiveness—one consistent with a visionary understanding of “Equality.” It afforded women, men, representative of the LGBT community, women living in conflict zones, prosecutors, trafficked women and children, individual complainants, academics and activists the dignity of being heard. In a two day public hearing, there was no “us” or “them,” no margin or mainstream—there was only we, the People. Undeterred by the visible absence of representatives from key ministries, the Verma Commission produced a report which replicated the kind of paradigm shift in perception we saw in Vishaka. In a record 30 days, it cultivated a visionary approach to women’s position in India evidenced by the following extract from the Verma Commission Report.

Unless and until the State pursues a policy of avowed determination to be able to correct a historical imbalance in consciousness against women, it will not be possible for men and indeed women themselves, to view women differently and through the prism of equality.

Perhaps that had been the challenge to the government all along—the absence of a vision—one which could rise to address the adverse sexual realities of half its population. Seized with the issue of sexual violence law reform since 1983, the different arms of the government have never seemed compelled to do their homework between rapes. Obsessively focused on India’s economic growth, the government squandered a rare public awakening and the opportunity to educate itself. Such apathy rendered the government impotent in galavanizing a zero tolerance message against sexual violence, an expectation central to women’s democratic life in India. And when you are so ill-prepared and in power, power reveals.

On December 23, 2012, without warning, peaceful protests (which even the Chief Justice of India publicly “saluted”) at India Gate, New Delhi were met with police excesses. “Lathi” (police truncheon) charges, water cannons, tear gas, the targeting of women, and government dictat that all public assemblies were unlawful became the pattern of the day. It was one more instance of the politics of exclusion – only this time, the excluded formed half of the nation.

More revealing was the government’s response to the Verma Commission’s Report. While the Prime Minister termed it a “labour of love,” a hastily cobbled Criminal Law Ordinance on Sexual Assault (the Ordinance) that followed, betrayed the government’s true intent. Inserting definitions of sexual assault with a death penalty tagged on (the latter of which, the Commission had rejected after consultations and level-headed reasoning) the Ordinance became an eye wash and a mockery of democratic power. Not only did it shun the fundamental vision of Equality in the Verma Report, the Ordinance abdicated all the systemic priorities raised by it. In doing so, the Government disregarded most of the Commission’s substantive recommendations. These included election law reforms to remove political representation by those charged with sex offenses, deleting the marital rape exemption, police reform and accountability, internationalising medical protocols, sex education, the “breach of command responsibility” doctrine for the Armed Forces (holding a commanding officer responsible if a junior commits rape), preventive measures and, most significant, the proposed Women’s Bill of Rights (to name a few). Yet, with near juvenile posturing, the Law Minister went on national television to shamelessly declare that 90% of the Verma Report had been “accepted.” Passing such a critically flawed Ordinance was the only urgent act the government undertook on the issue of sexual violence after the December 2012 rape incident.

We are still in the midst of a churning. The proverbial jury is still out on whether the institutions of state will join the march with “avowed determination” to arrive at that “sense of self” necessary to purge our society of sexual violence. But the process has promise. Against 30 years of State indifference, we got 30 days of the Verma Commission Report that created, through a uniquely accessible and inclusive process, a paradigm shift in the way the public engaged with the issue of women’s equality and sexual violence. In contrast, the government’s ongoing decision-making continues to be characterized by exclusion of women and experts on addressing sexual violence, and stalling on implementing the recommendations of the Verma Commission. So, what has changed? For the cynic, perhaps nothing. For me, aware optimism and living in the present have been hallmarks of perseverance on the margins. Today, it is how one woman’s tragedy, one heroic friend, one public awakening, one Commission’s efforts, a history of the women’s movement and one moment in time, became synonymous with the mainstream. What’s that, if not change?

Naina Kapur is a lawyer and equality consultant. She specializes in establishing the prevention of sexual harassment in the workplace. Naina framed and acted as lead instructing counsel before the Supreme Court of India in 1997 in the case of Vishaka vs. State of Rajasthan, which resulted in legally binding directions on preventing workplace sexual harassment. Considered a landmark judgement in national and international jurisprudence, the case has been recognised as a leap in domestic application of International Law and gender equality in India. She can be reached at naina.kapur@gmail.com or at nainakapur@nainakapurlaw.com

By: Priti Suri and Krishna Jhala

Women lawyers in India have come together to form organizations which play a vital role in society. These organizations are run with the intention of bringing about a change in society. While this article concentrates on four major women lawyers’ organizations, many more exist at various local levels along with a number of loosely held affiliations.

The Society of Women Lawyers-India (“SOWL”) came into existence in 2010, as a by- product of a handful of lawyers working in different capacities such as practitioners, sole proprietors, in- house counsels, partners of law firms from various parts of India joining hands to form a platform focusing on three main topics: increasing and exercising influence, building and strengthening client relationship and client practice, and achieving and maintaining balance. SOWL, although at a very nascent stage, lays prime emphasis on mentoring young professionals. It is the only organization of its kind in all North India, and has support from lawyers around the world. SOWL has various committees formed under it such as the legislative and policy committee that addresses issues related to employment equality, domestic violence at the workplace and protection against sexual harassment. SOWL has partnered with an international organization called i-Probono. The i-Probono initiative connects civil society and non-governmental organizations with legal support from volunteer lawyers. SOWL provides training and continuing legal education, hosts seminars and legal talks, and assists in legal policy and research analysis.

A recent example of SOWL’s contribution in legal policymaking came to light after the infamous Nirbhaya rape and homicide case (the “Delhi Gang Rape Case) that took place in the capital city in December 2012. The incident led to mass outrage not only in Delhi but in cities all across India at the inability or unwillingness of the police and government to charge and prosecute such crimes instead of brushing them under the rug. The incident led to SOWL conducted legal discussions among women lawyers on issues related to safety, protection of women and prevention of crime against women. As a result of these concerted legal discussions, SOWL provided recommendations for amendments in the various criminal laws of the country including the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act. These recommendations have been incorporated in the Criminal Law Amendments Ordinance of 2013.

The All India Federation of Women Lawyers (“AIFWL”) is another organization of women lawyers. It was established in 2007 by Ms. Sheela Anish and operates out of Bangalore. AIFWL’s objective is to uphold and safeguard the constitutional rights of the citizens of India. It promotes the rights and welfare of children and women and has done commendable work in this field. It held a seminar in Chennai on the issue of the “girl child” creating awareness about the need to protect girls and their rights. AIFWL also jointly organized with National Commission of Women a seminar focusing on the “night shift of women workers” in Bangalore, where a large number of women are employed in call centers, business process outsourcing and IT Companies. The seminar highlighted difficulties faced by women working at night including the issues of harassment and exploitation at work. The constant efforts of AIFWL have found considerable support by many in Indian. AIFWL is affiliated with the International Federation of Women Lawyers and has thus has helped in bringing Indian women lawyers into an international forum.

Lawyers Collective (“LC”), headed by Ms. Indira Jaisingh, is an organization created to provide expert legal assistance to the underprivileged, especially women children and workers in the unorganized sector. Lawyers at LC are engaged in both professional and public interest work. LC has a program called the Lawyers Collective Women’s Rights Initiative which aims at bringing about empowerment of women through law. It concentrates on issues of domestic violence, personal laws, and sexual harassment at work place, among others. The organization provides legal aid through this initiative. LC played an important role in the passing of Protection of Women from Domestic Violence Act, 2005. It held campaigns and legal discussions addressing issues of domestic violence. LC has also worked in the arena of drug policies by making submissions on the Narcotics Drugs and Psychotropic Substances Bill which later became a part of the Standing Committee’s Report submitted to the Government of India. On the development of law on HIV, LC played a vital role by addressing issues such as nondiscrimination in employment, the right to marry, negligence in blood transfusions, and the like.

Majlis is another organization among women lawyers’ groups run. It is run by Flavia Agnes, based in Mumbai. It is a broad based pluralistic organization, engaging in both legal and cultural activities. It consists of lawyers and social activists. The founder members of Majlis have been a part of the women’s movement in India since 1980. Majlis Legal Centre is engaged in a comprehensive women’s rights programme and its initiatives include “Access to Justice for All Women,” where it ensures that the rights of women are protected by providing legal counseling, legal representation and innovative legal strategies. It helps in educating and disseminating information about laws and legal avenues available to women and makes sure that no discriminatory laws against women are passed. It initiates public interest litigation and policy level interventions. Majlis also has a project called “Fellowship to Women Lawyers in District courts of Maharashtra” which was started in 2003. It has so far awarded 100 fellowships to women and equips women lawyers with resources to defend their women clientele and implements legal interventions in rural and backward areas of Maharashtra.

While the work undertaken by these women lawyers’ organizations may not be voluminous in nature, they have definitely brought about remarkable change in their own sphere. These organizations address pressing issues in our society and provide relief to those affected. Members of these organizations work from different parts of the world with the aim of giving back to the community.

Priti Suri is the President and one of the founding members of SOWL-India. She is also the founder partner of PSA, a corporate business law firm. Her areas of expertise are corporate, commercial law, cross-border transactions and M&A. Priti is also a Co-Chair of the India Committee of the American Bar Association’s Section for International Law. She may be contacted at p.suri@psalegal.com.

Krishna Jhala is an associate at PSA. Her areas of practice include technology, media and telecommunications, general corporate and defence. She may be contacted at k.jhala@psalegal.com.