Modern Discrimination in the Courtroom

By Ramya Subramaniam

Women are constantly conditioned that litigation, especially commercial or criminal is not well suited for women. Being a very demanding profession, a woman who wants to balance her responsibilities at home cannot do so. Every day women are made to give up litigating for the sake of their families, not because they are any less good than their male counterparts, but because their gender roles in society demands them to do so.

I speak of “modern” forms of discrimination, from a purely a personal perspective. That being that of a privileged woman, with a very supportive family. The forms of discrimination I face are rather what I would term “modern”.

Picture Credit: The New Yorker

A glance at the name of the blog, reminded me of a crucial issue, I’ve faced in my short span of time as a young woman in commercial litigation. What you wear and how others perceive you depending on what you wear, seems to be a great cause of discrimination in litigation.

For instance, I have been regularly told “The judge will grant you that order, if you show him your face”. Or, “in litigation you must dress in saree’s and salwar’s otherwise clients and judges won’t take you seriously”. “Now that you are in a noble profession, you must give up wearing the clothes you wore in college.” “You look like you’re from a London firm, why don’t you take up desk work in a nice fancy office? Sweating it out in a court won’t suit you.”

Well thank you very much, I didn’t realize that my success as a litigator was so dependent on my fashion sense!  I have also had clients ask me several times, what will happen to your practice once you marry? Will you continue working in litigation? While it used to enrage me initially, I now do not blame my clients for asking me this. It is a circular belief, one that people witness happening and then assume is sure to happen to all women in litigation.

The courtroom is most certainly a boy’s club. The few young women who are practising, more often than not, tend to have husbands and fathers in the profession. While one might think that this helps the woman’s career, it simply offers a discriminatory flexibility. The family then gets to decide what matters the woman takes up and when. Your husband is sick, oh great stay at home! Your baby has to be dropped off to school, no problem you don’t have to go to court. Even when the woman does appear in court, it is only for adjournments and smaller stake matters. One knows, out of sight and out of mind is a saying most true in the courtroom!

Another issue I have regularly witnessed is that while women as juniors in the profession are well accepted, independent women practitioners are not taken as seriously. Why? Because the inbuilt belief is that women will invariably drift away into the domestic space and therefore their career is not worthy of being taken seriously. The smokeroom conversation goes on as such. “She will have children and then how will she manage?”. “Anyway, once she marries she will have to cut down the working hours”. And the “lucky” few who do continue to practice, are in the shadows of their husbands. A shadow is always a shadow. It never comes to light.

Hon’ble Justice DY Chandrachud, in his speech, in the year 2012, noted that as of 2012, only five out of 294 lawyers designated senior advocate in the Supreme Court of India were women, an abysmal 2 percent. However, he noted that women in corporate offices, law firms fared better in terms of equality, owing to the gender-neutral trajectories in elite law firms. While this is a recognized problem, the lack of organization in litigation is one of the core reasons why this never gets resolved. Add to this, abysmal pay in litigation and more and more women find it difficult to justify slogging hours of work at office/work to their families, husbands. Therefore, few women enter the profession and fewer women stay on. Afterall, litigation is already a battle. Add to it, battling casual sexism and lack of trust and confidence from your seniors and peers, and the recipe for modern discrimination in a courtroom is complete!