On senior advocate designations and the disproportionate representation of women

Recently, the words of renowned Senior Advocate and Padma Vibhushan awardee, Shri. Fali Sam Nariman sent ripples across the Indian legal community. Comparing the system of “senior designation” of advocates introduced by the Advocates Act, 1961 (‘1961 Act’) as akin to the “caste system”, Nariman maintained that senior designations are violative of fundamental right to equality in Article 14 of the Indian Constitution. As reported by Bar & Bench, Nariman strongly contended that there is necessity of using gender-neutral language in the 1961 Act, subtly hinting at the disproportionate gender-representation at the Bar, especially of female Senior Advocates.
Remarkably, the Indian Constitution does not classify Advocates as senior or regular advocates. However, Section 16 of the 1961 Act introduced this statutory classification, creating a position similar to that of Queen’s Counsels (famously known as ‘Silks’) in UK. Nariman is not the first person to have challenged this classification. The Delhi High Court in J.R. Parashar, Advocate v. Bar Council Of India, AIR 2002 Del 482, dismissed a writ-petition seeking to declare the senior gown worn by senior advocates and the senior designation process itself as discriminatory and unconstitutional.
More recently, at a time when there was no incumbent woman sitting-judge at the Supreme Court of India (‘SCI’), a Full-Bench of the SCI headed by Justice Ranjan Gogoi (as he was then) in the Indira Jaising v. Union of India, (2017) 9 SCC 766, upheld the constitutionality of Section 16, while laying down non-exhaustive eleven guidelines to make future senior designations across the SCI and High Court uniform. Notably, Indira Jaising, was herself the first-ever Indian woman to be designated by any High Court as a senior advocate, with her senior gown being conferred by the Bombay High Court.
In 2017, the Harvard-Oxford Scholar, Professor Shubhankar Dam had lauded the Jaising decision as path-breaking, acknowledging that while the class of senior advocates would still be a “super-elite club”, at least it is unlikely to remain an “old boys club” in future due to increased chances of women’s appointment. Unfortunately, while the Jaising decision has introduced a significant improvement and some degree of transparency in senior designation, these hopes seems to be a far-off dream. Professor Emeritus, Marc Galanter and Yale Scholar, Nick Robinson, in their famous work on India’s Grand Advocates (Cambridge University Press), have acknowledged that women representation in senior advocate designations has been poor.
In the Indian history, only fifteen women amongst four-hundred and twenty lawyers (i.e. less than one-percent), have ever been designated as a senior advocate by the SCI. Late Justice Leila Seth (Retd.), who was coincidentally the first-ever woman to be appointed as the Chief Justice of any High Court, is the first-ever Indian woman to be designated as a Senior Advocate by the SCI in 1977. Four decades later, Justice Indu Malhotra (Retd.) became the second woman to be conferred with senior designation.
The remaining thirteen women chronologically conferred the senior gown by the SCI are, namely, Justice Sharda Aggarwal (Retd.), Meenakshi Arora, Kiran Suri, Viba D. Makhija, Justice Rekha Sharma (Retd.), V. Mohana, Mahalakshmi Pavani, Madhavi Divan, Menaka Guruswamy, Anitha Shenoy, Aparajita Singh, Aishwarya Bhati and Priyanka Hingorani.
The glaring disparity in gender-representation of women in senior designations is arguably worse at the High Courts. In 2015, it was reported by an anonymous practicing senior advocate at Allahabad High Court to The Scroll, that only one woman was ever designated as a senior advocate by the High Court. As recently reported by Live Law, only one out of twenty-seven individuals designated as a senior advocate was a woman. The paltry representation of women in senior designations is remarkably even less than the reported representation of women in the Higher Judiciary (i.e. the Supreme Court and High Courts). Shruti Sundar Ray, a journalist and lawyer, states that out of two-hundred and forty-five judges who were appointed since 2015, only three percent are women.
While it is true that generally most registered Advocates in India are men, the massive difference in the number of male and female senior advocates highlights that there are greater factors at play, which create such a disproportionate representation of women. Senior Advocate Rebecca John was reported to state that women have a general tendency to not apply for senior designations. This stems from a belief that applying for senior designations requires a great amount of networking, which is difficult for most women.
In 2018, Senior Advocate Indira Jaising wrote a letter to the then Chief Justice of India, Justice Gogoi, stating that the Higher Judiciary should not designate individuals with consistent sexist behaviour inside the courtrooms or public life as a senior advocate. Jaising believes that such a measure would promote role models who encourage women to become great role models and leaders themselves.
It may also be possible that family obligations or parental obligations of women make it difficult for them to consider applying for senior designations. Given the fact that a senior advocate’s primary task is to advance oral arguments before courts, women are likely to avoid senior designation to maintain greater amount of flexibility in their professional life, such as opting to work from home or joining law firms. Similarly, their family obligations may disrupt their continuous practice, making it difficult for them to obtain sufficient work experience and achievements to be considered worthy for the senior gown.
Notably, neither the Jaising decision nor any of the guidelines published by the various High Courts or the SCI for senior designations make any mention of promoting or ensuring adequate representation of women as seniors at the Bar. However, the judgment written by Justice Gogoi acknowledges the fact that the guidelines laid by the court are not exhaustive and would require continuous reconsideration.
Consequently, it is quite possible that in a near future, the court might suo-motu or on a writ petition take up the issue of gender representation in senior designations. Alternatively, the Parliament could itself consider an amendment to Section 16 of the 1961 Act, to add a sub-clause requiring the Higher Judiciary to ensure a minimum percentage of representation for women at the Bar. The most effective body which can pursue this matter and convince the Higher Judiciary to consider revising its guidelines to ensure minimum representation of women with senior gowns, is the Bar itself. Given the fact that senior designation process has recently seen significant judicial reforms and increase in transparency, one can only pray for further reforms which allow the lesser represented gender a fair chance to break the glass-ceiling.