Shattering Glass Ceilings on the Bar and the Bench: Justice Gautam Patel

Bar & Bench December 28 2018
justice Gautam Patel

Justice Gautam Patel

I should have known better than to venture out to write on something that I will never ever encounter or experience. I am not here to say anything at all about sexual assaults on women, individual incidents in the #Metoo movement, or even about this glass ceiling in any profession or field of work other than law.

In fact, in attempting a profile of the problem, I first want to get rid of this phrase altogether. It’s not just dull, but I think it’s become somewhat meaningless. And it’s totally flat — glass, and ceiling, as if this is some sort of visible-invisible, but fixed and immutable. Reality is, I fear, much more convoluted, and far more sinister than this.

What is it really we’re talking about in law? It’s about a bias. And more: it’s a cultural and social or a socio-cultural or sociological bias. And it’s a very, very stubborn bias.

Does anyone here really need an illustration? I seriously doubt it, but let’s see some of the more immediate manifestations: women lawyers told, often by white-haired gents in black who, presumably, and if only on account of their silvery locks should know better, that they should stay at home and mind the children. That a woman lawyer who is fierce in the defence or prosecution of her client’s cause is ‘shrewish’, but when a male lawyer does exactly the same thing in the same way and in the same words, he is to be much admired for his ‘tenacity’ and ‘grit’. That a woman in a trial in court or in an arbitration should be mocked and derided, constantly interrupted, met with long and weary groans; but when a male lawyer is introduced to ‘lead’ her, the same opposition retreats into a silence. That gives us another dimension to the problem. The incessant bullying of women, no matter how competent, because they are women: archetypal, nauseating patriarchy.

It’s not just us. It happens everywhere. Earlier this very month, I read an article in The Atlantic by a litigator named Lara Bazelon. It’s title is this: ‘What It Takes To Be a Trial Lawyer If You’re Not A Man’. I want you to read the opening paragraphs of this article:

Last year, Elizabeth Faiella took a case representing a man who alleged that a doctor had perforated his esophagus during a routine medical procedure. Before the trial began, she and the defense attorney, David O. Doyle Jr., were summoned to a courtroom in Brevard County, Florida, for a hearing. Doyle had filed a motion seeking to “preclude emotional displays” during the trial—not by the patient, but by Faiella.

“Counsel for the Plaintiff, Elizabeth Faiella, has a proclivity for displays of anguish in the presence of the jury, including crying,” Doyle wrote in his motion. Faiella’s predicted flood of tears, he continued, could be nothing more than “a shrewdly calculated attempt to elicit a sympathetic response.”

Faiella told the trial judge, a man, that Doyle’s allegations were sexist and untrue. The judge asked Doyle whether he had a basis for the motion. Faiella says that he replied that he did, but the information was privileged because it came from his client. (Doyle told me the information had in fact come from other defense attorneys.) Faiella called his reply “ridiculous.” She told me: “I have never cried in a trial. Not once.”

As Faiella listened to Doyle press forward with his argument, her outrage mounted. But she had to take care not to let her anger show, fearing it would only confirm what Doyle had insinuated—that she would use emotional displays to gain an advantage in the courtroom.

The judge denied Doyle’s request, saying, in essence, “I expect both parties to behave themselves.” Afterward, Faiella confronted Doyle in the hallway. “Why would you file such a thing?” she demanded, noting that it was unprofessional, sexist, and humiliating.

“I don’t understand why you are getting so upset,” she says Doyle replied. (Doyle denied that gender was the motivating factor behind filing the motion; he said he had filed such motions against male attorneys as well.)

When I asked Faiella for a copy of Doyle’s motion, she said that she could send me examples from more than two dozen cases across her 30-year career. She said that at least 90 percent of her courtroom opponents are male, and that they file a “no-crying motion” as a matter of course. Judges always deny them, but the damage is done: The idea that she will unfairly deploy her feminine wiles to get what she wants has been planted in the judge’s mind. Though Faiella has long since learned to expect the motions, every time one crosses her desk she feels sick to her stomach. “I cannot tell you how much it demeans me,” she said. “Because I am a woman, I have to act like it doesn’t bother me, but I tell you that it does. The arrow lands every time.”

For the past two decades, law schools have enrolled roughly the same number of men and women. In 2016, for the first time, more women were admitted to law school than men. In the courtroom, however, women remain a minority, particularly in the high-profile role of first chair at trial.

In a landmark 2001 report on sexism in the courtroom, Deborah Rhode, a Stanford Law professor, wrote that women in the courtroom face what she described as a “double standard and a double bind.” Women, she wrote, must avoid being seen as “too ‘soft’ or too ‘strident,’ too ‘aggressive’ or ‘not aggressive enough'?”

The glass ceiling remains a reality in a host of white- collar industries, from Wall Street to Silicon Valley. If the courtroom were merely another place where the advancement of women has been checked, that would be troubling, if not entirely surprising. But the stakes in the courtroom aren’t just a woman’s career development and her earning potential. The interests — and, in the criminal context, the liberty — of her client are also on the line.

What makes the issue especially vexing are the sources of the bias — judges, senior attorneys, juries, and even the clients themselves. Sexism infects every kind of courtroom encounter, from pretrial motions to closing arguments — a glum ubiquity that makes clear how difficult it will be to eradicate gender bias not just from the practice of law, but from society as a whole.

And that, friends, is really what we must confront today. In a seminar this week, Justice Chandrachud, one of our own, made two or three comments that I think really hit the mark. The Constitution, he said, is at its heart a feminist treatise. Why? Because its essence is neutrality; including gender-neutrality.

At that conference, Justice Chandrachud also spoke about the in-built biases against, and obstructions facing women in the law. Appointments to the higher judiciary, for instance, and the quite absurd ‘income criterion’ to gauge a person’s success. We all know how utterly vapid this is as a measure of anything. Lots of people have quite obscene amounts of money and flaunt it in all kinds of weird ways — building absurd single-family dwellings for instance. But there is no direct correlation between having or making money, and competence, ability, knowledge or skill.

Justice Chandrachud spoke of an absolutely top-flight lawyer who appeared before him regularly; she didn’t, he noted, meet this ridiculous income barrier, though it was no reflection at all on her lawyering skills. Justice Prabha Sridevan, whom I know well, and admire very greatly indeed, spoke too and said this,

"But 2:1 is the ratio of women coming (to the bench) from the bar...You have to practice before the Chief Justice or he will not know you! And a family court lawyer would usually never come there...even the district judges posted in family courts think it is a punishment...if there are not many women, this profile will not change."

Chief Justice Gita Mittal was there too, and said that the success rate in the Delhi High Court was 60% in the subordinate judiciary. But then she said this, and though it is reported to have been ‘in a lighter vein’, as we have so often heard tell, and yes, there’s a Latin maxim for anything under the sun as any lawyer will tell you — in joco veritas — in jest there is truth:

“It is only when we come to places where men are making the decisions that we are falling out”.

These are, therefore, patriarchal slots, and they are devastating. Women should be confined to family matters. They are supposedly ‘good’ at it. I have no idea what that is supposed to mean, but what it does intend is plain: the systematic exclusion of women in commercial and criminal litigation, and therefore their relegation to the also-ran, to second-place. Never first chair.

What this tells me is that perhaps the single most significant obstacle is what I can only describe as the systemic patriarchy. By this I mean the patriarchy that is embedded — deeply, deeply embedded, and now ingrained — in our institutional structures. This extends to everything from appointments to promotions. I believe it is what Justice Gita Mittal meant when she said that the speed-bump is only when men are in the decision-making position.

This systemic patriarchy also infects almost everything in between: even what work is assigned, for there is more than a sniff of this patriarchy when a woman judge is assigned cases involving women, or offences against women. This is another kind of slotting: notice that the assignment of such work is not gender-agnostic. It is not gender-neutral. It is not the assignment to a judge of a class of cases. It is an assignment of work based entirely on gender; and it obliterates every other consideration, including ability, experience, acumen, temperament.

A male judge who dares suggest an alternative distribution will be met with, at the very least, snide remarks and sniggers, and that’s more systemic patriarchy in play again, yet more objectification of ‘women’ as a ‘thing’. This typifying of women judges as ‘best suited’ to deal with a certain class of cases goes on for years, and it has the direct effect of limiting and confining the growth of that judge.

Consider this: with the number of women judges today, and many of them heading High Courts, is it really being suggested that in nearly three quarters of a century since Independence, not one single woman was found fit to be the Chief Justice of the country? Seventy years with zero result? What kind of society is it that produces that kind of distortion? Heads of banks, financial institutions, multinationals, why, even a Prime Minister; but Chief Justice of India? Impossible! I would really like to see a cogent, coherent, compelling answer to this one day. Or, better still, the solution.

But the fact that something this pernicious exists does not mean we should continue to feed the monster. But how do we dismantle these constructs? Perhaps we need to return to our definition, and our acceptance of it, and ask whether by accepting the definition we are in fact reinforcing; or, conversely, if a wholesale denial of it is simply to be an ostrich or is one step towards its removal.

I want to couch this also in the context of what it is I perceive happening, of what is really being said by those who are now calling out the very many men who, persistently and over time, have been predatory in one fashion or the other. This is not, in my seeing of it, a demand for instant justice, or a lynching or a mob hanging. It is a statement that the legal redress system is itself a threat and a part of the oppression and the patriarchy. The common response, that the accuser should subject herself to the legal system, is weak-kneed, unthinking, and self-serving; the accused often speak of their ‘reputations’ being destroyed by ‘mere allegations without proof’. Perhaps so, but surely not in all cases.

Is it reasonable to ask that the victims bring forth a full-blown alternative redressal system? The very system that is meant to protect has so very often served only to oppress, and surely, therefore, it is entirely unreasonable to ask an accuser to subject herself to another manifestation of the very oppression she has called out? I see this as a time of transition; an essential transition, and for that reason, perhaps painful, certainly searing. It is a difficult time, and we, as a society, have no answers. But the challenge before us is clear: to evolve a truly balanced, gender-neutral redressal system that works, instead of one that only pretends to.

There are four judges, all retired, whom I greatly admire. All are persons of integrity, of course, but most of all, I envy them their range and breadth of mind: from complex commercial and constitutional issues to literature, music, language, theology, and beyond. Of these four, only one is a man. To one of them — not the man — I have shamelessly said, “when I grow up, I want to be like you”. I really do.

I don’t want to be entirely negative. There is a problem, and it is severe, but there is also a definite push-back. More and more women lawyers at various levels — litigators, counsel, attorneys — are handling complicated commercial and other litigation. They refuse to confine themselves to the well-trodden, and they are willing to do what it takes, to face even hostile courts and judges to get there. Sometimes it is very difficult. There are judges who are patronising, and even downright misogynistic. But this push-back is a sort of unlabelled movement whose time has come.

My own experience as a judge has been this. That I must be prepared to step in, and step in hard, if I find a male lawyer trying to browbeat or intimidate a female lawyer opponent, to never allow it to happen. But it’s a delicate balance. There’s a sort of reverse patriarchy too in going too far the other way and giving extra leeway, cutting additional slack. That’s not being even-handed, and that, really, is the key. There’s another sort of patriarchy built into that, too. The effort must be to complete gender-neutrality.

There is then, of course, talk of recent trends where we see now far more women entering the legal profession than ever before. More women students in law school than during my years there, and certainly I have far many more women interns than men. One of them, not long ago, told me she wanted to specialize in asset reconstruction matters, and I just marvelled at her focus and determination. Not because it came from a woman — that was irrelevant — but because it’s a fixity of purpose I am not often privileged to see among young students.

In one way, I suppose I have been more privileged than most to have spent my early years as a lawyer working with three outstanding lawyers, all women. Two are still with us, and I won’t name them, but both have most emphatically cracked through this wretched glass ceiling. You can guess. The other has passed on, and while she did a large number of family matters — and I learned trial work from her in those matters — she was an absolute master of difficult commercial law subjects like the Negotiable Instruments Act: the difference between a cheque crossed generally and a cheque crossed specially, and one crossed specially more than once, the effect of an endorsement and so on. From each of them, I learned more than I can reckon, and this had nothing at all to do with they being women, and everything to do with their being outstanding lawyers.

Which brings me to my last point this evening. I find it incredibly offensive when people — men and women both — speak of a ‘need for more women judges’. I think this is just plain wrong, and it does women an enormous disservice, as if to suggest that being a woman in law is itself such a disadvantage that we must have some sort of reservation policy for them in place. There should be no reservations in the judiciary, period. Like the armed forces, it should be entirely merit-driven, and entirely gender-neutral. We need more judges, and we need better judges and it should not matter in the least whether that the judges we appoint to gauge our affairs and our causes happen to be women. This insistence on women-judges has a built-in gender bias, and it frightens me that it so often comes from women themselves.

I want to end with one comment about a very recent event, the Sabarimala judgment of the Supreme Court and, specifically, Justice Indu Malhotra’s dissent. Whatever be the merits of the majority opinion and the dissent, the one thing that shines through for me is that in voicing her dissent, Justice Malhotra did the one thing that should always be done. She was utterly and totally gender-neutral. We know what the central issue was, but the fact of her own gender played  no role at all in the shaping of her dissent. That, to my mind, is in the finest tradition of judging.

Her dissent was not a judgment by a woman-judge. It was a dissent by a fine judge. And it is when you see and read something like this that you realize that this glass ceiling is a set of fragile shards, one that exists only to be broken.

Justice Gautam Patel is a sitting judge of the Bombay High Court.

This piece was originally published as an article in the Women and the Law edition of The Indian Advocate, the journal of the Bar Association of India. A version of this article was delivered as a speech titled ‘Cracking the Glass Ceiling’, before the Ladies’ Wing- IMC Chamber of Commerce and Industry on October 11, 2018.