Indira Jaising writes to the CJI on subtleties of gender stereotyping, suggests combat measures

In Jaising's view, gender stereotyping "starts with pleadings, continues with oral arguments, and finally finds its way into judgements."

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"THE older I got and the more experienced, the gender stereotyping began. It seems almost as if male colleagues are unable to deal with an 'empowered woman'."

These are excerpts from a letter senior advocate Indira Jaising wrote to the Chief Justice of India (CJI) Dr D.Y. Chandrachud on August 21. 

The letter follows the release of a Handbook on Combating Gender Stereotypes by the Supreme Court earlier this month with the express aim of assisting judges and other members of the legal community in identifying, understanding and combating stereotypes about women. 

Building on the conversation started by the release of the handbook, which was widely acclaimed for being a step in the right direction while also being criticised for certain shortcomings and errors, the letter provides several sharp examples of the subtle and not-so-subtle stereotyping Jaising has faced in her long career as an advocate.

The letter makes several suggestions on how to avoid and weed out gender stereotyping and beseeches the CJI to issue a Model Handbook on Practice Guidelines to be followed by advocates while pleading.

Justice made part of the kitchen committee

Jaising writes that ostensibly positive expressions such as "You are an empowered woman, who can put you down" are actually a "disguised form of gender stereotyping".

She also writes that she has been referred to by male colleagues as "delightful" during court hearings, to which she promptly objected. 

"[A]t the other end of the spectrum," Jaising says, she gets told by male colleagues: Don't raise your voice in court.

Jaising notes that phrases such as "she is aggressive" are used in relation to women, but never in relation to men.

"When it comes to 'aggression', I could provide you with several examples of male lawyers who are loud and aggressive in court, but they are considered India's top lawyers. What could be a better example of gender stereotyping?" Jaising writes.

As an example of gender-stereotyping, senior advocate Anjana Prakash told The Leaflet that when she was a judge at the Patna High Court, she and two other female colleagues were made part of the 'kitchen committee' of the high court.

The 'kitchen committee' was tasked with deciding the food menu for the canteen, she said.

Prakash then approached the high court judge tasked with designating committees "who I knew was a liberal person" and told them that appointing an all-woman 'kitchen committee' will "send the wrong message".

Thereafter, Prakash was appointed to the seminar committee.

Describing another instance of gender stereotyping, Prakash told The Leaflet that while practising as an advocate at the Patna High Court, her and another female colleagues' names were shortlisted for elevation as judges.

"But only one name was finalised," Prakash stated.

To this she said: "The impression this gave was that the Chief Justice did not want two women to be appointed as judges at once."

"When women are appointed as judges, it is thought of as a favour bestowed upon them," Prakash said.

"The question always asked is: 'Is she competent?' not in the general sense of competency, but as a special category because she is a woman," Prakash added.

Advocate Susan Abraham told The Leaflet that there used to be a judge at the Bombay High Court who "told female advocates appearing in his court that their place was in the kitchen".

"My activist-advocate persona has saved me from gender stereotyping but I know women who have faced taunts from male advocates and judges," Susan said.

Susan further averred that it is presumed that a female advocate "is better as a junior rather than an independent person of her own standing."

"To succeed, she has to work harder than her male counterparts," Abrahim added.

'Language an enabler of stereotypes'

The recently released Supreme Court handbook contains a list with two columns, one with stereotype-promoting language and the other with alternative preferred language.

For words such as "career woman", "fallen women", "harlot", "seductress" and "whore", the handbook only recommends that the term "woman" be used.

In her letter, Jaising says the use of such words should be prohibited in courts.

Jaising notes that the Supreme Court, in Medha Kotwal Lele versus Union of India (2012), had directed the Bar Council of India to ensure that all Bar associations in the country and persons registered with the state Bar councils follow the Vishaka guidelines.

"Regrettably this has not been done till date," her letter reads.

As an example of stereotyping of women in legal proceedings, Calcutta High Court's Justice Subhendu Samanta's comment that women are unleashing "legal terrorism" by "misusing" Section 498A (Husband or relative of husband of a woman subjecting her to cruelty) has been cited by the letter.

Jaising also flags the use of stereotypical language in some statutes, such as the expression "prostitute" in the Immoral Trafficking (Prevention) Act 1956.

The Supreme Court's handbook recommends that the term "sex worker" be used instead of "prostitute".

"Language is an enabler of stereotypes," Jaising says in her letter.

To prevent this, she suggests that the Supreme Court publish a list of words to be proscribed in advocacy and pleadings in court. This list could be similar to the Lok Sabha secretariat's list of unparliamentary expressions.

In Jaising's view, gender stereotyping "starts with pleadings, continues with oral arguments, and finally finds its way into judgements."