In Conversation with the second woman to be designated Senior Advocate by the Supreme Court: Indu Malhotra

In 2007, Indu Malhotra became only the second woman to be designated a Senior Advocate by the Supreme Court, close to three decades after Justice Leila Seth was designated..In this interview with Bar & Bench, she talks about her initial years, attitude of legal profession towards women, AoR system and future of arbitration in India..Bar & Bench: Why did you take up law?.Indu Malhotra: That was long time back. I actually strayed into law. My interest was more academics and I had got a job as a lecturer in Gargi College. My father was a senior lawyer and he was very very insistent that I study law. And eventually, somehow, I said let me try law. I was teaching in the morning, and in the evening I enrolled for law and then I took it up as full time profession. So ever since I enrolled in 1983 I have been practicing law in the Supreme Court and the High Courts..Bar & Bench: So having a legal background helped you in the profession?.Indu Malhotra: Well, that certainly gave me a foothold for the reason that I had the infrastructure. That certainly does help you but beyond that you have to work very hard to grow and go forward. Just belonging to a legal background is not at all enough, you have to put in your own labor, you have to get your own work and prove yourself. This is not a profession where you can really inherit a practice. You can get a foothold. I got a foothold in terms of infrastructure; I didn’t get any clientele or anything from my father and that time he was getting ready to retire. So I really didn’t inherit any kind of practice from him..Certainly it did help me because you grow up in an environment and that helps. You interacted and met legal luminaries at social functions. This certainly helps you, and it gives you an orientation..Bar & Bench: Can you talk about your initial years?.Indu Malhotra: I worked for the first 3 and a half years in the office of PH Parekh, which was the busiest AoR office at that time and that gave me a tremendous exposure because I got an opportunity to brief the top senior counsels in the city. You learn a lot from them, from assisting them in the court. So that was a huge learning experience for me. After which I took the Advocate on Record exam and then I started my own practice..Bar & Bench: What was the attitude of the legal profession towards women in the early 80’s?.Indu Malhotra: I wouldn’t say there was discrimination as such but the profession is a tough one. It requires the complete dedication of your time, and you are left with very little time for anything else. You have to work very long hours and you have to perform. To tell you honestly, I have really not felt any discrimination as an Advocate on Record. I think times were changing, there were a lot of other women advocates who were also AoRs, so I don’t think there was too much gender bias there..But it was a tough struggle, and one grew brief by brief only. It was not that anything was available readymade on the platter, it took time..Bar & Bench: So you think you were taken as seriously by judges?.Indu Malhotra: If you talk sense the judges take you seriously, it depends on how you present yourself. If you talk seriously and talk with focus, they will certainly accept you with the same kind of seriousness. I don’t have any complaints on that at all..Bar & Bench: You were only the second woman to be designated Senior Advocate by the Supreme Court?.Indu Malhotra: Yes, I topped the AoR examination in 1989 and practiced as an AoR till 2007. In 2007, I applied to become a senior lawyer and the Supreme Court designated me a senior in August of 2007. The first lady designated was Justice Leela Seth who had come from England almost 40 – 50 years ago, so it was a huge gap before the next person was designated although there were people who had been applying but those applications were not being accepted..Bar & Bench: What was the feeling like?.Indu Malhotra: Certainly it was a great sense of achievement because to get all the judges to unanimously concur in your designation. So I did feel very happy. It was a great feeling..Bar & Bench: How do you think the legal profession differs for men and women?.Indu Malhotra: To tell you the truth, I do feel there is a certain element of gender bias when it comes to becoming a senior counsel. The corporates and the clients normally would prefer a male senior to a woman senior, so there is discrimination at that level, not as a advocate on record or solicitor but as a senior counsel, they would prefer a male to go and represent them in the court. But slowly these perspectives get eroded over a period of time, if a person is effective and the client gets relief then those barriers break through but it takes time, it takes a lot of hard work and effort..Bar & Bench: Any particular challenges you faced to reach where you have reached? What challenges do women in litigation face?.Indu Malhotra: I feel one problem is to get work. Most of these firms – they do a lot of public relation exercises, that’s where women have a disadvantage because men are more adept and they can go out because work does not come to your door, people go out and get work. And I feel so far as public relations is concerned that’s one area where single women find it very difficult to go out and get work from corporations, and from others. I feel that is one of the areas where women feel disadvantaged..You see a lot of work comes from government corporations, which gives you a continuous flow of work and that comes through political connections. Also these law officers’ jobs – they all come with political connections and that’s where women feel disadvantaged because if you don’t have political connections you don’t get those offices..Bar & Bench: How do you think the status of women in this profession has evolved?.Indu Malhotra:. I think now there is more democratization taking place in the profession. There are many more women who are practicing, many more avenues of employment not only litigation, its also in corporations, public sector banks, corporate practice, so there are lot of avenues open. Today, the legal profession is considered to be one of the most lucrative professions and I think women are doing very well, in fact there are lot of offices prefer to take women because they think women are more steady, hard working and available, so people do prefer women lawyers juniors..Bar & Bench: I see lot of women juniors here in your office..Indu Malhotra: I think women join women seniors because they feel more secure; I think that is the reason..Bar & Bench: This takes me to sexual harassment – the recent allegations against the Supreme Court judges, what do you think would have been the best way to handle it instead of so many speculations and corridor discussions that happened. Firstly were you surprised when you heard of it?.Indu Malhotra: The day the news broke out, I was shocked but I do think that I sincerely feel there should have been a mechanism and there was no mechanism for people to make complaints. And even if there is a retired judge you can’t say I have demitted office so I am above the law or I am outside the scope of law. That’s not on. Once you have held one of the highest constitutional post of the judiciary in the country, you can’t turn around and say I am out of bounds of this and out of bounds of that and equate yourself to a common person, you can’t do that. There is a certain level of responsibility expected and specially people who are in judiciary, who are dispensing justice. You don’t expect them to be dabbling around. The veracity of all the allegations has to be tested. I am not commenting on the veracity of those complaints..There was actually no mechanism available till now but now we have full-fledged Vishakha Committee but that is dealing with complaints against lawyers..Bar & Bench: I have also met lawyers who have openly said that they would not prefer women juniors or women clerks – thoughts?.Indu Malhotra: Today more than 50% of those clerking with judges are women who have got selected so if you stop this instead of regulating it, I think its not a good solution to say we will scrap it. Of course it affects women, once you have worked as a clerk with a judge, there is a huge exposure you get and it also helps you when you go in for LLM. It’s a huge exposure you get. Certainly it will harm women. Seniors lawyers are also saying, people have become wary of [employing women lawyers] Of course people will become wary, but that doesn’t mean that real incidents are not happening, they were happening and now people are getting scared also..The initial reaction of some male senior lawyers was, we don’t want to keep a woman, who wants the hassle? You must also keep the other aspect in mind that there are a lot of honorable top senior lawyers who have been faced with irresponsible and false allegations. So you have to keep that in mind because their reputation is also at stake..There are a lot of women today who will make irresponsible allegations with different motivations so it’s a bit dangerous, so you have to balance out in society..Bar & Bench: If you were to make any changes in the legal profession, what would those be?.Indu Malhotra: I don’t like the collegium system for appointment of judges. There has to be a far more transparent system and I don’t think it should remain within the confines of the judiciary, there has to be some kind of independent body which is involved with the appointment of judges. Otherwise it becomes too “in-house” a system, which remains within the confines of a few people and sometimes its not very objective. And very often the best don’t come out. I am against the collegium system completely..Secondly, I think there has to be more and more refresher courses for judges also because laws today have become so complex, there are so many more laws, which have come into force to apprise them..Bar & Bench: Do you think senior counsels are concerned about the quality of the Bar and helping junior lawyers?.Indu Malhotra: This profession is very – very hard on your time that you only end up helping your immediate lot of juniors who are working with you, you don’t have time beyond that. Everyone is engrossed in his or her own work that nobody takes it as a broad public issue. Some senior lawyers give free legal aid in some cases if they are approached so broadly otherwise people who are successful don’t have the time that is the truth. People who are successful are too hard pressed on time..Bar & Bench: What about the role of the bar associations?.Indu Malhotra: Bar associations really are more political. Rather than doing anything great for the Bar as such, they have become too politicized..Bar & Bench: What are your thoughts on the current system of legal education in context of the 5-year course and the national law school that has sprung up over the years?.Indu Malhotra: I actually feel that the 3-year system is better – 3 years of graduation and 3 years of law – I think that gives you a better grounding and of course then intersperse with a lot of internships. A 5-year course combines 2 years of graduation, 3 years of law. I prefer 3 + 3 and I think one additional year doesn’t make a difference in the long run..Bar & Bench: You handle a lot of arbitration matters, any thoughts on the future of arbitration in India..Indu Malhotra: There is a lot required in arbitration. The first thing is a legislative change is required and the most important thing, which I feel is necessary, is to segregate international commercial arbitration from domestic arbitration because all kinds of odious comparisons are made. We require a separate enactment for both. We should not combine it because it leads to all kinds of mix up in jurisprudence. Secondly we need to fast track the international commercial arbitration because if we don’t fast track it, a lot of international commercial arbitration has moved away from the shores of India. It’s moved to south East Asia, its moved to Singapore, Hong Kong. People are not willing to come to India. Thirdly, my view is there is too much of judicial interference at every stage and fourthly, we need to streamline the system in terms of time lining disposal of cases. There certainly needs to be specialized benches both in the High Courts and the Supreme Court if courts have to act in aid of arbitration then there have to be specialized benches dealing with them on a regular basis rather than in adhoc sporadic manner..What I feel is most important is to institutionalize arbitration rather than have adhoc arbitration because it has its own fallacies. There are no time lines, there are no regulations, and the arbitrator decides when he will give the award. It needs to be streamlined and that will only happen when institutionalization happens and as far as arbitration with the government is concerned, most of the corporations incorporate laws have arbitrators who are their own employees which is unfair. It’s in the teeth of natural justice and the mandatory provisions in the act, so these are some of the important areas, which need to be addressed..Bar & Bench: There is a petition pending in the Supreme Court for scrapping the AoR system, what do you have to say?.Indu Malhotra: There has to be an AOR system. Certainly. There has to be a certain level of quality in drafting of pleadings, you can’t just have anyone walking to the Supreme Court and file their vakalatnamas. The Supreme Court certainly requires a level, which you should maintain, I don’t agree with that view at all. It’s very essential to have advocates on record, answerable to the court for pleading and other things. There is a great responsibility attached to being AoR..Bar & Bench: Sometimes courts have pulled up AORs for not being responsible and lending names, not appearing in the matter and not knowing anything about the matter. What do you have to say?.Indu Malhotra: That is very bad. A lawyer cannot wash his hands off; he is answerable to the court. If anyone just walks in and walks out of the court who is not an advocate on record that’s even worse. The institution of advocates on record was created for this reason that it would be answerable to the court on behalf of a litigant to ensure the pleadings were completed, adjudicatory process was facilitated and of course the court had to reprimand people who are not responsible. If there are defaults then certainly someone has to be answerable to the court and that’s why this institution was created and it should be continued without any doubt..Bar & Bench: If you are offered judgeship, would you want to be a judge?.Indu Malhotra: I was offered judgeship four times of the High Court, when I was much younger but for personal reasons at that point of time I did not accept it..Bar & Bench: What advice would you give to young lawyers?.Indu Malhotra: A young lawyer has to join either the office of a good solicitor where there is a lot of work or one of the good seniors so that you get maximum exposure. You learn the work, you learn the principles of law, and you learn how to draft, prepare a brief, attend a conference, and brief the senior lawyers. Go to the court, watch them appear and how they present the case. These are important things. Secondly I find a lot of these junior lawyers socializing in the corridors. That’s not it, when you have spare time you should be inside the court watching proceedings, watch the judges, watch the lawyers, you learn a lot from observation..Bar & Bench: Your mentor?.Indu Malhotra: Some of the top seniors have been a great source of learning like Fali Nariman, Harish Salve, Arun Jaitley, P Chidambaram. They have been a great source of inspiration and role model lawyers. And these are four seniors with whom I have had a chance to work with when I was a junior lawyer..Bar & Bench: What interests you other than law?.Indu Malhotra: I am very house proud. I like cooking, I love gardening and I love traveling..Bar & Bench: What do you love most about litigation?.Indu Malhotra: Every case is a new experience and its very stimulating because you learn a new law, you learn in the courts. So it’s full of new experiences everyday. Its not stereotyped at all that gives you a great sense of fulfillment. I love the profession. I enjoy every moment.