Karachi-Based Woman Lawyer Alleges Harassment, Are Indian Courts any Safer ?
Pakistan has witnessed such cases of harassment in the workplace previously as well, even in the legal profession. For instance, women lawyers have experienced harassment from their male colleagues and even inappropriate touching from their own clients. An overall culture of condescension towards women from male advocates and judges often forces them to switch career paths.
The issue of women’s safety in their workplaces is a contentious one. On the on one hand, a large number of women are pursuing further studies and entering the workforce, including in demanding professions such as law and medicine, but on the other, they continue to face discrimination, harassment including of a sexual nature, and gender stereotyping. This is true of the legal profession as well, not only in India but even in other countries.
The global prevalence of sexual harassment in the legal profession can be attributed to factors such as the culture of the legal profession itself and the underrepresentation of women in the bar. Additionally, in such a competitive profession, harassment has been normalized.
For example, according to an Australian publication, The Conversation, the legal profession relies heavily on personal networks, which continue to be male dominated. Perpetrators of harassment are often powerful men, such as justices of the High Court. Women are seen as sexual objects rather than equal peers, with nearly half of all female lawyers in Australia, New Zealand and the Pacific reporting sexual harassment at their workplace. This could also be attributed to underrepresentation of women in this profession, since, while approximately 60 per cent of law graduates in Australia are women, a very small number of these women actually reach senior positions in their field.
In India, Pakistan and other South Asian nations as well, such notions and inappropriate behaviors continue to persist. A disturbing case has emerged from the Karachi Bar Association, where a woman lawyer has alleged professional misconduct and harassment in open court. The lawyer was an Advocate enrolled with the Sindh Bar Council and also operates a registered law firm. She was defending her client, also a woman, in a custody dispute before a magistrate’s court.
However, her opponent, a male lawyer, threatened and bullied her, which she claimed was not only unprofessional but also an attempt to provoke her. Although she maintained decorum while responding to his attempts at intimidating her, he persisted in creating an unsafe and hostile environment in the courtroom. Additionally, the male lawyer would bring other men who were not counsels in the matter, into the courtroom only for the purpose of intimidating her and her client.
The female lawyer, in a civil suit filed against her former opponent, as well as the Sindh Bar Council, claimed that she was coerced into signing an apology letter (maafinama) without being given a proper opportunity to present her case. This took place in an informal meeting, after which the lawyer filed a formal complaint with the Sindh Bar Council, citing professional misconduct and harassment.
However, even before the Sindh Bar Council could complete its inquiries, the Karachi Bar Association suspended the aggrieved lawyer’s membership. She claimed that they do not have the jurisdiction to do so and that due process was not followed. Further, she was made aware of her suspension through a message on a WhatsApp group, which is not the proper channel for such communication. According to the female advocate, the widespread circulation of the message is an attempt to harm her professional reputation, and a “witch hunt”. Claiming that the KBA has infringed upon her rights as an Advocate and that their actions were driven by gender bias as well as a personal vendetta against her, due to the Association’s close links with her male opponent, the woman advocate filed a civil suit before the High Court of Sindh, Karachi, challenging her suspension order.
While this incident is highly distressing, sexual harassment in the workplace remains a problem in India as well.
According to research conducted by the Center for Economic Data and Analysis, the there has been an increase in the number of cases reported under the POSH (Prevention of Sexual Harassment) Act since its inception in 2013. Nearly all of the complaints (80 per cent of them) reported stem from larger companies, ranked in the top 100 on the National Stock Exchange (NSE). Additionally, the number of cases reported has grown at a faster rate than the number of solved cases.
Digital publication, Feminism in India, reported that about half of the companies which reported high rates of sexual harassment, did not have properly functioning Internal Complaints Committees (ICC). Factors contributing to sexual harassment include fear or reprisal, social stigma around such cases and non -compliance with legal norms. Many complainants, particularly those who are less well educated or work in the informal sector, may not be aware of their rights under the POSH Act.
It is therefore highly ironic that in the legal profession, which claims to uphold justice and inclusivity, and where individuals are highly educated and aware of their rights, sexual harassment remains a problem. It does not just hamper the safety of women and their professional prospects, but could adversely affect inclusivity and representativeness in the justice delivery system.
Problems faced by women lawyers in India include overt sexual harassment, normalization of toxic gender norms, a highly masculinist culture which objectifies women and difficulty in filing complaints. According to Jayna Kothari, founder of the Center for Law and Policy Research, it is difficult for women lawyers to seek action against their perpetrators in such cases. This is because of lacunae in the existing legal provisions. For instance, the current laws deal with sexual harassment at the workplace. However, for female lawyers whose workplace is the courts, and who are not ‘employees’ of the judges, this definition is difficult to apply.
Additionally, sexual harassment is not often overt in courts, according to Kothari. It can take the form of sexual remarks, requests for sexual favors or comments by male colleagues. At times, male lawyers and judges make sexually colored remarks against female advocates in the courtroom itself, which is ironic given the emphasis on decorum in courts.
In a 2012 case, a legal intern accused a retired judge of the Supreme Court of sexual harassment, claiming “unwelcome conduct of a sexual nature” which caused her a lot of mental trauma. Notably, the then-Law Minister Kapil Sibal had previously demanded the judge’s resignation.
A recent case in September this year has also come to light, wherein a Judge of the Karnataka High Court made inappropriate sexually colored remarks to a female advocate, remarking that she seemed to know a lot about her opposing counsel, and might even be aware of the color of his undergarments. This prompted Senior Advocate Indira Jaising to demand suo moto action against the judge, who is now being investigated by a CJI-led five judge bench of the Supreme Court.
Jayna Kothari cited the lack of proper internal complaints committees and redressal mechanisms in Indian courts as one of the reasons for the prevalence of such cases.
Senior Advocate Indira Jaising herself, in a conversation with The Week, mentioned that she had also been subjected to sexual harassment by a senior male lawyer in the Supreme Court. In addition to this incident, which occurred at the beginning of her career, she spoke about casual misogyny in courtrooms, where, for instance, male lawyers are given more opportunities to speak than their female counterparts while representing their clients.
A comparison between Indian and Pakistani courts in terms of gender justice reveals some interesting comparisons. Just like in India, Pakistani courts are also seen as “All Boys’ Clubs” where there is a culture of casual sexism. According to publication, the Foreign Policy, while Pakistan has an act, enacted in 2010, mandating government and private institutions to set up committees to inquire into and curb practices of harassment, these remain largely unimplemented in courts of law.
Further, women lawyers who do complain about harassment are either pressured into reaching a ‘compromise’ with their perpetrators outside court, or face insinuations against their character in the court, if they do manage to file a legal complaint. Women in Pakistan, like in India, are not adequately represented in the legal profession. Only 12 per cent of advocates in the country are female.
Incidentally, women lawyers are often policed on their appearance and demeanour, both in India and in Pakistan.
A Pune District Court in October 2022, enjoined women lawyers to “refrain from arranging their hair” in open court, so as not to distract the men present. Women lawyers who wear makeup, high heels, “revealing” clothing or keep their hair open are often not taken seriously or subjected to moral policing, according to a news report by the Print.
A woman lawyer recounted how she was told that tying her hair or wearing Indian attire would have made the judge presiding over the matter deliver a verdict in her favor. This is saddening as women’s professional prospects and the respect they receive are made dependent upon their clothing choices.
It is necessary to interrogate such social norms and change them so that women can experience a safer and more positive work culture.