Nowhere to Hide
Like Parliament, the scope for women in the legal profession evolves as part of a slow turning wheel. It is time to change that.
It is time that the bar and the bench takes women in the legal profession seriously
There are times to sit and watch, And then there are times to rise to the occasion and be counted. In the life of a nation, it is not every day that the divisive tendencies, of one or the other kind, threaten to destroy its very fabric. The unfolding of events in the legal profession since January 12, 2018, ironically also the birth anniversary of the great spiritual monk of India—Swami Vivekananda—has been a rolling ball of moss, growing
bigger every day. It was on this day that four senior most judges of the Supreme Court, in an unprecedented move, called for a press conference and revealed that not all in the Supreme Court was in order. They categorically said that they had met with the Chief Justice of India, Justice Deepak Mishra, and tried to collectively persuade him to take remedial action but that he remained unconvinced.
READ BETWEEN THE LINES
For those who are watching from close quarters, the adage “read between the lines” has come to life, for the current crisis reveals how one is never to take anything that anyone says on face value, but to always look for the hidden meaning. The news world seems to be full of contradictory opinions on every question—what was the real agenda of the lawyers in Kathua? Who protested against the filing of the chargesheet in the Kathua rape case? Why was the highest judiciary in the country silent when the Government of India chose to segregate the names from the Collegium’s recommendations, and rejected Justice K M Joseph’s name for appointment as a Supreme Court judge? And the latest—why is there no judicial order constituting the five judges bench to hear the rejection of the CJI’s impeachment motion? No wonder then, ‘we the people’ of this country are having a hard time appreciating what the bar and the bench of India are upto.
Irrespective of which way one’s opinion may lean, one thing is clear. The bar, bench and those supporting different camps have never been more sharply divided. Judges’ press conference, senior lawyers refusing to appear before particular judges or opting for voluntary retirement, questions of propriety being asked of the Chief Justice of India by previous Chief Justices, are all signs that suddenly the judiciary and the legal profession are no longer the holy cows of India.
They are no longer away from the public glare in the name of honour, pride and independence.
NOWHERE TO HIDE
The legal profession too, like every other, is supposed to work for the nation—for ‘we the people’, and therefore, our business cannot be said to be ours alone. The legal profession has conventionally sought to limit any public discussion on their affairs maintaining that doing so is good for the Indian democracy. Who appoints the judges, who governs the legal professionals, who can speak on our affairs—the answer to all these questions, in one voice (more or less) has been—we the ‘lawyers/judges’. No surprise then that every time there is a whistleblower, either from within the profession or outside—we challenge their motives, their authority, their propriety and wisdom to do so. All this alludes to an attempt to keep things hushed up. One may even read this as an attempt to keep all the secrets in the household. Surely, it cannot be anyone’s case that the bar and the bench are above all scrutiny. Be it the police, the government, the media or the legal profession—the country as per our Constitution has to run on ‘rule of law’, ‘separation of powers’ and ‘checks and balances’. Everybody has to watch everybody.
USING GENDER AS A POLITICAL TOOL
When everyone seems to be pushing for more women in the legal profession, why is it that we let the government recommend Senior Advocate Indu Malhotra’s name for appointment as a judge in the Supreme Court while sending back Justice K M Joseph’s (CJI of the Uttarakhand High Court)? While the appointment of Indu Malhotra should have been a cause for celebration, it has been marred in controversy, due to the inability of the Supreme Court to stand strong on the Collegium’s recommendations in the face of opposition by the Government. Quite simply, the law as it stands today as per the Second Judges’ case, is that the Collegium’s (group of senior most judges of the SC who recommend names for appointment for the Supreme Court judges) recommendation is final. Why then has the bar and the bench not acted in unison to resist the attempt of the Government to interfere with the process by choosing to hold back Justice K M Joseph’s name?
The legal profession has only paid lip service to set the gender dynamics right. Yet, at every single turn, its actions do not match its seeming concern for women equality and women empowerment. Only two female judges out of 25 Supreme Court judges, 12 females who are Senior Advocates in the Supreme Court thus far, no female judges in eight high courts—the numbers don’t square up with the rhetoric. Indira Jaising, a senior advocate has complained of sexual harassment at the Supreme Court; there are ample stories of how the legal system is titled in favour of the men. Yet, one cannot make these arguments without sounding like a victim. Where is the debate, the voice of the bar and the bench on the need to undertake the debate on gender and law in a systematic, action-oriented manner.
WHERE IS THE COLLECTIVE VOICE?
While there are individual voices of lawyers and judges who have called for propriety to be followed, where is the collective voice of the bar? A voice that acknowledges the discordant chords but attempts to bring them together such that it passes the test of the high ideals which the legal profession has always claimed to upheld, one that is based on constitutional values. Whether the bar and the bench will answer these questions and how they will, may very well determine the constitutional future of the Indian democracy.
THE LEGAL PROFESSION HAS ONLY PAID LIP SERVICE TO SET THE GENDER DYNAMICS RIGHT