Candid conversations with some of India’s fiercest women litigators show that thriving at the bar requires tenacity, toughness and the courage to take down patriarchy. Vandana Chatlani reports
Ligating in India’s courtrooms is not for the fainthearted. It demands drive, passion, determination, persistence, energy and mental stamina. While those in the field speak of the excitement and adrenaline associated with trials, they also admit that such work is financially less rewarding than other avenues of the legal profession. Only those with fire in their bellies survive.
For decades, women have fought for their place in the courts, working harder than their male counterparts to prove their worth. After all, women at the bar face challenges far beyond the arduous hours of preparation and mastering of legal briefs. Talk to women in the field and they will tell you that success in court requires thick skin and self-belief as strong as a coat of armour. For years, women were told they didn’t belong, and that they lacked the knowledge and commitment necessary to stay in the game. When they did succeed, they attracted comments that in Indira Jaising’s words, were part of a “patronizing paradigm”.
Jaising, the first woman to become a senior counsel in India and the country’s first female additional solicitor general, is synonymous with excellence in legal circles. That someone of her calibre – and indeed any woman lawyer, junior or senior – still experiences a lack of respect in the profession on gender grounds is an ugly truth that the legal community must acknowledge.
“Gender is more relevant to others than your performance,” says Jaising. “It’s almost as though because you’re a woman, they don’t expect you to succeed. Of course it bothers me. It bothers me very much, and I’m not sure that I’ve succeeded in dealing with it as yet. It can still sometimes throw me off balance. But the most important thing is I will not succumb to being patronized.”
Jaising honed her skills in Bombay High Court, a forum where she found “a certain openness and a more democratic approach”, which she says gave her the freedom to practise her own way, representing those desperate for justice, such as the victims of the Bhopal Gas Tragedy. She and her husband, Anand Grover, also set up the Lawyers Collective, a non-governmental organization committed to feminist and left-wing causes. Interestingly, Jaising experienced a sense of ostracism much later in her career, partly because of her gender and partly because she rejected the status quo.
“I didn’t have any powerful lobbies supporting me, and despite that, I was doing pretty well for myself,” she says. “That is something people can’t accept if you’re a woman. They would like you to acknowledge that you are under the shadow of a powerful male. If you’re unwilling to do that, and you don’t need to do that, then you will hit some kind of ceiling. That’s been my experience. I have never encountered any problems with the people I represent, which is evidence of the fact that the problem lies elsewhere.”
For Jaising, inequality, nepotism and discrimination are not topics to discuss for the sake of intellectual debate and political correctness. Never afraid of ruffling feathers, she gave up her senior counsel gown in August 2017 in a symbolic protest against discrimination, as she called for a transparent, formulaic and meritocratic appointment of senior counsel, and an end to the different gowns worn by junior and senior counsel.
“It was a very conscious decision on my part to challenge the procedure for designation of seniors,” she says. “I was very aware of the fact that it’s based on dynasty, judge’s children being designated, senior counsel’s children being designated. So [my decision] was an attempt to democratize the bar. And when you open these doors, then you expect not just more women to walk through, but also people who otherwise have no opportunity … who will not be able to approach a judge and say ‘give me a recommendation’.”
For her part, Jaising needs no reassurance from elite circles. “I don’t belong to the aristocracy of law and I don’t wish to belong there. I don’t have that lineage and there are many things wrong with that lineage which I’m trying to correct.”
Stereotypes that stick
The examples of discrimination that Jaising illustrates are by no means isolated incidents.
Pallavi Shroff, the managing partner at Shardul Amarchand Mangaldas & Co in New Delhi, admits that gaining the acceptance of clients and courts was a tough task, despite her rich legal lineage. The daughter of former chief justice of India PN Bhagwati, she recalls a time early in her career when clients would refuse to see her, and instead preferred to wait for hours until they could consult her husband. “They would never take me seriously,” says Shroff.
Ruby Singh Ahuja, a partner at Karanjawala & Co in New Delhi, says when she began her career in 1993, women rarely remained in the profession long term. “Some got married and others had family issues, which they struggled to handle because of the odd hours in litigation,” she says. “Many women left the profession and as a result men believed that those who stayed on would not last longer than two to three years. You had to convince them you were committed.”
Women are acutely aware of how they are perceived, not just intellectually, but physically too. Some say they consciously and subconsciously adjust their demeanour for the male-dominated environment of the courtroom. “Even the way we dress in a courtroom is still very conservative,” says Poornima Hatti, a Bengaluru-based partner at Samvad Partners. “You are in a very male gaze. I dress much more conservatively when I have a full day in court compared to when I’m in the office. There’s a lot in the courtroom that is less sheltered and is more the real India. Everything we do is designed to say ‘take me seriously’. It’s almost like you’re going in for battle.”
Although the perception of defined gender roles is slowly changing, in India, as in many other countries, the image of a woman as a maternal figure in charge of domestic affairs is still difficult to shift. As a result, the responsibility of childcare still tends to fall primarily on a woman’s shoulders. This balancing act and the constant feeling of guilt women tend to feel when they are away from their children leads to both increased pressures and reduced opportunities.
Those too ambitious to give up the cut-throat world of litigation are willing to stretch themselves to the limit in order to accommodate the demands of work and family. Being fully accountable in the workplace and at home on a daily basis takes its toll, both mentally and physically. “I did a lot of juggling but I didn’t give up,” remembers Shroff. “There were times when I would be awake at night because my younger daughter had asthma. I’d keep her on my shoulder, patting her, while working with papers on my lap.”
“Women will always have dual responsibilities – that will never die,” says Shiraz Patodia, a senior partner at Dua Associates in New Delhi. Early on in her career, Patodia recalls, “I would run home any chance I got during the day to see my six-month-old son and check whether he was in good hands. I could never keep up with the ‘boys club’ and the culture of drinks after work, because I had to be home with my son and husband.” Men, says Patodia, have fewer expectations thrust upon them and so “gallivanting around until midnight” is never an issue. Women, however, are often unable to partake in these relaxed bonding opportunities, which can tangibly affect how their workplace relationships develop.
“The point is – the higher you go, the more you need to be in an old boys’ network,” says Jaising. “The in-group becomes smaller as you go higher and it becomes a more exclusive network. And if you’re not part of that network, then there’s an actual denial of opportunity.”
Jaising has no desire to be part of such networks unless they are genuinely knowledge-based or professional associations. But she recognizes that avoiding such memberships can lead to exclusion. “That then impacts your credibility, because the criteria for credibility that you see around you are so skewed. If you look at people’s CVs, they will say member of so and so, and part of so and so, or attended a particular conference. If you’re not willing to be a part of those systems then obviously you take a hit in terms of your perceived credibility – not that you lack credibility in real terms.”
Chaos and chasms in court
There is general consensus that women corporate lawyers, and even those pursuing arbitration, have witnessed a higher degree of gender parity when compared with women practising litigation.
Companies and law firms in India have begun to view gender diversity, and diversity overall, as a corporate gain – a way to enrich perspectives and foster growth. In an effort to encourage greater participation from women in these sectors, some law firms and companies have re-examined their workplace policies and devised flexible work arrangements, stronger anti-harassment rules, increased safety initiatives for women staying late, and crèche facilities for new and nursing mothers. As a result of these concrete measures, women feel supported and valued by these organizations and are thus motivated and able to retain their positions over the long term. Why, then, has the courtroom remained so unequal and male-dominated? And what are the mechanisms, structures and processes that keep it this way?
A disorganized court system plagued by unpredictable scheduling could be one reason. Unlike the corporate sector, where lawyers can to some extent anticipate the timetable of a transaction, litigating lawyers have no such control. So for those with children, health issues, or duties towards elderly relatives, among other responsibilities, the erratic timings of court practice are simply unviable.
“The Indian litigation scenario can be more organized,” says Hatti. She cites the publication of court lists as an example. Madras High Court issues its lists after midnight, she says. “So, if I’m expecting a case to come up in Chennai, I have to go there in advance because I can’t plan my day after midnight. Either I’m there and we hope the case comes up, which means I’d be briefing a counsel at 7:30am, or I’ve wasted a day because my matter hasn’t been scheduled.”
Hatti acknowledges that some high courts – such as Karnataka High Court, which provides an advance cause list 48 hours beforehand, or Bombay High Court which has a case management information system – are more organized than others. However, further improvement across courts is necessary, she says, and not just for the sake of women. “This is a problem that can be fixed and would help everyone. It would probably attract more women lawyers while also benefiting every stakeholder in planning and resolving disputes.”
That the odds are still stacked against women in court also stems from the fact that they are outnumbered by men at the bar and bench. “We still have very few female judges and the language and conversation at the bench continues to be very male,” says Hatti. “Recently, when pushed a little aggressively for an interim order, a Karnataka High Court judge asked whether I would speak to my husband in that tone. This language exists in the courtroom and people don’t even call it out. We’re very far from an equal system.”
For women, this is a hostile environment to contend with. “Men at the bar don’t see this as a gender issue,” continues Hatti. “It’s an amusing anecdote. The conversation at the bar should improve; judges need to be sensitized.” Hatti attributes part of the problem to the low numbers of women office bearers in the Bar Association of India (BAI) and the Bar Council of India, and suggests that the bar needs to look within in order to attract the right talent and bring about meaningful and lasting change. “Very few women want to be on the bench – forget the politics, the struggle and everything that comes with it – how do you make the judiciary attractive for a feminist?”
From Jaising’s perspective, there is a lack of equitable treatment at the Supreme Court, not just for women, but for anyone without the “right” connections. “At that level, many things matter,” she says. “Your gender, your proximity to judges, your lineage, your linguistic affiliations, your state affiliations – all these things begin to matter at the Supreme Court level. Your opportunities narrow down on account of all these reasons. The obstacles you have to battle are larger.”
Kanan Dhru, an Ahmedabad-based innovating justice agent for South Asia at the Hague Institute for Innovation of Law, has seen first-hand the kind of discrimination women face in court. She argues that more women are needed in the legal ecosystem, particularly at the bar and bench in order to dismantle patriarchal and stereotypical attitudes.
“Litigation is fundamental – it is the most important practice,” says Dhru. “The courts play such a major role in people’s destinies and they directly impact both citizens and companies. So it’s essential to ensure litigators represent our society. It’s nice to see women succeeding at the National Law Schools and in the corporate world, but I don’t think they’re doing as well in litigation.”
Nerves of steel
The presence of high-profile women litigators, senior counsel such as Jaising, Meenakshi Arora and Jayna Kothari, and judges such as Justices Indu Malhotra, Indira Bannerjee and Prathiba Singh, offer evidence that women’s excellence in lawyering does not always go unnoticed. While the successes of these lawyers and judges suggest a slow transformation in attitudes towards gender, they speak volumes for the tenacity of these individuals and their will to thrive despite being underestimated, underrepresented and undervalued.
Although initially infuriated by her clients’ dismissiveness, Shroff was determined to persevere and demonstrate her capabilities. “You couldn’t afford to be angry because you wanted to prove your worth,” she says. Shroff also benefited from an immense support system in the form of her mother-in-law encouraging her to work while she helped out with the kids, and her husband, who she says, “wanted me literally and truly to be an equal partner, to share responsibilities with him and to go out and make a name for myself”.
Shroff, like other women in her position, is careful not to highlight a single matter that cemented her reputation in the profession, but she recalls a defining moment in 1991, when a client insisted on working with her. In 1989, Shroff had handled a high-profile matter in the Supreme Court before five judges over a three-month period. “I was completely dedicated to that matter and succeeded,” she says. “There was an offshoot of that case in the Allahabad High Court. It was natural for me to continue to work on the case, but a month before I was due to leave, I had back surgery and was advised not to travel.” She informed the client that it was impossible to travel by train in her condition and suggested someone else from her firm could take over. The client politely declined and instead, chartered a flight to take her to Allahabad. “I felt very flattered and happy,” she says. “That was really my moment.”
Patodia felt a sense of self assurance early on in her career when she was thrown into a matter that demanded her regular presence in court, offering her a chance to showcase her skills and work with those at the peak of the profession. “My biggest opportunity to grow was during the Harshad Mehta scam, during which we had so many matters in court every day, literally 30 to 40 matters,” she says. “I was very young at the time, but it offered great recognition. I interacted with every senior counsel and worked with practically everyone at that point of time, and that gave me a lot of confidence.”
“Each of us have some very personally satisfying cases even if you haven’t won them,” says Hatti. “It’s being consistently good … you are tested every day. When you do that over the years you create staying power and that’s when you’re recognized.” For Hatti, a memorable time was working on a spin-off in relation to a high profile banking and recovery matter, where her team defended an independent third party. “It was a very high-stakes, intensive litigation,” says Hatti. “We had to go through many cases and hearings. We were arguing for days on end. It demonstrated that you had in-depth knowledge and so your peers, colleagues and the bench took you seriously.”
For Jaising, whose core work is human rights law, it was the passion to work for those with little access to justice that drove her and provided her with the greatest learning experiences. “It was purely the desire to represent those who were not represented in the mainstream legal profession,” she says. “Doing that for me professionally not only gave me the largest amount of pleasure, but it also honed my skills, because if you are representing people who are on the margins of society, you have to be better than everyone else. Or else, you need to be very well researched with the law if you want to make any impact and succeed.
“I like working with the law; I find the law very creative,” adds Jaising. “The opportunities you have to mould and shape the law when you do the kind of work I do are unlimited. That is the motivation.”
Women lawyers agree that the need to repeatedly prove one’s worth and capabilities is not limited to the legal profession, or to India. “I think women all over the world are facing a tug-of-war when it comes to gender issues and a work-life balance,” says Ahuja of Karanjawala & Co. “In big towns and cities it is not that difficult. Mumbai, Delhi, Chennai, Hyderabad – women in these cities will manage. The problem is in the small towns and districts.”
According to Komal Joshi, a partner at ALMT Legal in Mumbai, “as you go further into more remote areas and lower courts, you observe the very conspicuous division between male and female lawyers, and the approach towards them. Women lawyers are still made to feel as though they do not belong and are far from welcome in these courts.”
A range of factors contributes to this feeling of being unwelcome. Nandini Khaitan, a partner at Khaitan & Co, wrote recently in the BAI’s journal, The Indian Advocate, of her experience at a district court in West Bengal where there were no toilets for women inside the court building. Instead, she was shown “a small enclosure covered on three sides, outside the building but within the court complex”, comprising “a tarpaulin roof pitted with holes, and a tin door which did not lock”.
According to a report last year on the state of physical infrastructure in the lower judiciary by Vidhi Centre for Legal Policy, the toilets in most courts were dilapidated, inaccessible and unclean. Bharatpur District and Sessions court had no toilet for women altogether.
“They’re struggling with the basics,” says Ahuja, while also pointing to a prevailing mindset that considers litigation an unsuitable career for women. “It is in these small cities that the ‘big boys club’ really exists. Sometimes you hear people say that teaching is an ideal profession, tailor-made for women because you get summer and winter holidays, and you finish at 2pm, etc.”
Poor infrastructure and opportunities beyond India’s metropolitan cities create further cause for concern. “There is still a sense of deprivation,” says Ahuja. The lack of infrastructure, opportunities and pay in smaller towns mean that if women want to pursue litigation, they will often move to bigger cities to do so. As a result, the bar and bench in these parts of India remain less gender-diverse, with poor facilities for women and under-representation. This is where the dangerous domino effect begins – fewer women in the lower courts equals fewer women in the higher courts, which eventually ends with fewer women sitting at the bench.
Pushing boundaries of patriarchy
Of course, not all is in the negative. Women at the bar today have greater opportunities than their predecessors and a more supportive environment in which to pursue careers in litigation. The generational change and open discussions about gender and equality, at least among those in urban India, mean women more often refuse to tolerate discriminatory language and patronizing behaviour, and instead, fearlessly challenge such conduct.
“I think there has been a restructuring of social relations between men and women, including at the bar,” says Jaising. “Especially after the MeToo movement, people are certainly a little more conscious about equality in the matter of relationships between men and women. I don’t think they face those problems in quite the same way as often earlier generations would have faced.”
This reshaping of social norms means that some women today enjoy more freedom and choice when it comes to designing their future. For years, Patodia of Dua Associates has had an all-women team and has noticed how younger women’s priorities are changing. “One of my juniors who is going to get married has taken only 10 days of leave for her honeymoon,” she says. “There is so much competition. They know how dedicated they have to be in order to grow. They are excellent and willing to do whatever it takes to succeed.”
Many young women today are confident that they can have a happy work-life balance on their own terms, regardless of their marital status, or whether they have children. And slowly, but surely, their employers are beginning to understand how they, too, can benefit by providing women employees with equal opportunities, support, security and flexibility.
At any organization, gender sensitization must begin from the top for equality to be embraced at all levels. “Management has to believe in women and truly give them equal opportunities because, whether we like it or not, there is an inherent, unsaid bias,” says Shroff. “If we have a matter in another city, most people’s first reaction is, ‘Oh, a woman lawyer won’t be able to travel because she has a child’. Why should anyone decide for her? Maybe the circumstances mean she cannot go, and that’s ok. But if that’s the case, let her say no. A conscious effort has to be made to treat her as an equal.”
Now, at the pinnacle of her career, one would assume that for Shroff gender is no longer an issue. She disagrees. “Gender is always relevant,” she says. “There have been times when I go to meetings with an associate or a younger partner who is male, and the questions are directed at them rather than me. That still happens sometimes. It often comes from very senior people. Not everyone has accepted that a woman can answer your questions effectively and pose five questions in return.”
Many women passionate about advocacy may be prepared for such frustrating encounters. But there are others who are unwilling to tolerate short-term discrimination for long-term career gains. Ahuja often advises younger women on her team to adhere to certain conventions of dress and demeanour, and to let their work do the talking. She appreciates that many women would question the logic of this approach, but argues that “society at large is still tilted towards men … and if you want to prove yourself in the profession, you must accept these realities”.
Ahuja’s philosophy is not about discounting the fight against patriarchy, nor does she discourage women from speaking up when they are patronized, harassed or treated unfairly. “Real upliftment is giving opportunities to women,” she says. “It is women supporting other women, which is what we are seeing. Accepting the basic fact that there’s always a difference between women and men is necessary. Society will change when it changes; women will help it to change. Many men will support you too.
“The world is not ideal and life isn’t perfect,” continues Ahuja. “I always tell my juniors, if a man has read his brief once, you read it twice. Don’t give anyone an opportunity to challenge your credentials. You have to be one notch above to be treated equally in your work. Is it ideal? No. Is it harsh? Yes. But my advice is not to fight it beyond a point; put it behind you and prove yourself with your work.”
Dhru is keen to see more diversity in courts across India and hopes aspiring women lawyers will not abandon the pursuit of a career in litigation on account of gender-based challenges. She urges lawyers to consider why they chose to study law, to think about the impact of their work, role and purpose in the profession, and to realise that the entire justice system works through individuals.
“This is a difficult profession,” admits Dhru. “It breaks the best of us. However, a woman in the courtroom is there to fight, not only for herself, but for a lot of other people. It may be other women, but it may also be clients who genuinely need her voice, not his voice. When you realize there are a lot of other people who support you, need you and depend on you for justice, it changes your outlook on the gender-based challenges you may face.”
Mentors, allies, gurus & guides
Many of India’s most prominent women litigators saw few, if any, women in leadership roles during the early part of their careers. As a result, they relied on male family members, mentors and role models for support at home, and coaching and guidance in court.
Shiraz Patodia, a senior partner at Dua Associates, held on to her career thanks to “an understanding husband and an intelligent son” who required no extra tutoring from her after school. She also credits senior solicitors AR Wadia, senior partner at Crawford Bayley, and Dakshesh Dhruv, senior partner at Dhru & Co, who helped her and pushed her to succeed. “The men in my life really helped me to grow,” she says.
Pallavi Shroff, the managing partner at Shardul Amarchand Mangaldas & Co, cites numerous mentors including: Her father-in-law, Suresh Shroff, who taught her discipline and how to organize her case work; her father, Bhagwati, who emphasized the need for humility; senior counsel Murlidhar Bhandare, a good family friend who helped her prepare for particular trials.
“At the front end, I would sit in court and observe Soli Sorabjee and Fali Nariman, watching how they understood the judge, the judge’s mindset, how to convey the law and the facts … it was absolutely brilliant court craft,” says Shroff. “I’ve heard the best of these lawyers including Nani Palkhiwala and in more modern times, Harish Salve, and I’ve tried to imbibe them.”
Shroff recalls the kindness of some judges in her early trials and their willingness to guide her and other juniors through the process. “In court, I saw that whenever you made an attempt to do something yourself without waiting for a senior – rather than saying ‘I can’t handle it’ – the judges encouraged you,” she says. “This applied to any youngster, and more so women. Justice Leila Seth and Justice BN Kirpal were really good. They would literally hand-hold you through … but you had to be prepared.”
Today, while younger litigators have numerous women to emulate, they may still be worn down by some degree of discrimination. Poornima Hatti, a partner at Samvad Partners, says lawyers should not feel disheartened in these instances. “You have to hang in there, work hard and push for opportunities,” she says. She also advises young women to seek out law firms and chambers that provide a nurturing environment where they can discuss gender-based issues. “Find the right office so you’re not stifled but valued,” says Hatti. “A lot of young male lawyers are very equal and aware, and will stand up with you. Build your support system so you stay in the profession for the long run.”
Patodia agrees that persuading women to stick with the gruelling world of litigation depends on empathy and workplace support. “I think we should be more accepting,” she says, citing the need for flexible work arrangements. “We can’t be so rigid about work timings. If someone has pressing needs to attend to, whether they are married or not, I let them work from home as long as they are punctual when it comes to delivering work.”
Patodia believes only female bosses will appreciate this need, because they have been through similar situations themselves. “Those little adjustments, whether it’s a crèche at the office or work-from-home arrangements, will proactively help women reduce the guilt of being away from family and create a supportive work environment in which they can thrive.”
Democratizing the bar
Why do we need more women at the bar? The women interviewed by India Business Law Journal offer several reasons, among them that diversification of the bar and bench creates a legal system that is more representative of society and one that offers different perspectives on justice and equality. It also provides women with access to positions of power, allowing them the chance to share unique viewpoints and offering them decision-making abilities on matters that will have far-reaching consequences for the corporate world and society at large.
“You will not see women in positions of power in India in the legal profession wherever it is, whether it’s in the judiciary or among government law officers, or as practising lawyers,” says senior counsel Indira Jaising. “There are very well-known role models in the US, such as Justice Ruth Bader Ginsburg, who has been written about. You won’t see that in India. There’s no attempt to valorize the role of gender in the profession when it deserves that foregrounding. Role models need to be out there in order to create impact.”
Jaising hopes that her call for transparent rules and criteria in the appointment of senior counsel will attract more qualified women candidates and other marginalized groups less likely to make it to the bar and bench under the existing framework. For example, those with a legal lineage tend to find opportunities and promotions more easily than first-generation lawyers.
“There are numerous cases of women who have a strong family background in law,” says Kanan Dhru, an innovating justice agent for South Asia at the Hague Institute for Innovation of Law. “Those with fathers and husbands in the profession have a longer innings.”
Dhru, who has worked to combine law, design and technology to improve awareness of and access to justice, says that harsh words from a white male colleague during her law programme at the London School of Economics provided lifelong motivation. “He came up to me and said, ‘You have a triple disadvantage – you’re brown, you’re a woman and you’re from a developing country. Your achievements will never compare to anything I achieve.’” While Dhru was taken aback by his comments, she also appreciated his honesty. “Many of my family members are lawyers and they are not comfortable with what I do. I constantly talk about disrupting the legal system.”
In the past five years, Jaising has noticed the emergence of a very well defined bar among the Dalit community – young women and men who are competent and assertive. In addition, she has witnessed women from all across India who have migrated to Delhi in search of a law career. “There is a thirst for knowledge there,” she says. “There are many things that are changing in the legal profession … this is one of the encouraging changes.”
While Dhru is excited about the prospects of more women entering and reshaping the legal profession, she laments the exhibition of a “masculine” energy to get ahead. “What I’ve noticed is that for women in power to succeed, they are required to have a strong demeanour,” she says. “The feminine side should be embraced because it is beautiful. The rejection of feminine qualities is a loss for the community. We should be able to celebrate sensitivity, a belief in consensus, emotional strength and empathy, rather than being ashamed of it. With this, policies, judges, the people that we have in this legal ecosystem will change.”