The Hindu carried an interesting piece by Meena Menon last week titled 'Women as Senior Advocates, Any Takers?'. It discussed mainly the low numbers of women lawyers designated as 'Senior Counsels' in the Bombay High Court. The article stated that there were only 3 women appointed as senior counsels in Bombay between 1991 to 2001, which is shocking. This year in Bombay, there were 15 designated senior counsels and there was not a single woman amongst them. This was despite the fact there was one woman who applied, but was not selected. The situation in Karnataka is not that different, in fact it is much worse. The ONLY woman senior counsel in the Karnataka High Court presently is Pramila Nesargi. To my knowledge, there is no other woman senior counsel appointed in Karnataka or atleast no other senior counsel who is seen to be practicing in the Karnataka High Court.
Why do we have such few women senior counsels in India? The concept of 'senior counsels' has been borrowed from the 'queen's counsel' concept in the UK. The Advocates Act 1961 refers to the class of senior counsels and it essentially signifies a person who has been designated such because of his / her expertise. The person who wishes to be designated as a senior counsel must have atleast 10 years of practice and must make an application to the High Court or Supreme Court to be considered for designation.
The first barrier to designation is really this requirement of making an application to the court to consider you as a senior counsel. This requirement deters many lawyers, both male and female, from being designated as the general feeling in the bar is that the designation of a senior counsel should not require an application and should be given by the court on its own, in recognition of the counsel’s merit. Given this reluctance to apply, with women lawyers, the reluctance is even more. There is a stronger sense of reluctance for women to apply for senior counsel designation, because the selection is to be done by the judges of that court which are mostly male (the Karnataka High Court has only 2 women judges out of a total strength of around 44), there are not enough women senior counsels around for women lawyers to believe that they would have a chance of being selected and the criteria for selection are not known. With all these odds against you, few women would be brave enough to apply in the first place.
Thus, the first hurdle is getting more women lawyers who are really good to even apply. In order to encourage them to apply for being designated as a senior counsel, there needs to be an institutional design in promoting the appointment of women senior counsels by the courts. This is being done in the UK and Australia where more and more women are being appointed as queen’s counsel. The number of women being appointed are still nowhere equal to the number of men, but there the difference is that there is a concerted effort on the part of the judges to appoint more women out of the applicants, if all other criteria are fulfilled. There is a complete absence of any such interest in promoting women in the legal profession by the courts and judges in India. In the same way that there is now a move on the part of the government to appoint more women judges, there needs to be an institutional effort to appoint more women lawyers as senior counsels.
The next big hurdle is that the criteria for selection are not known and the whole process is shrouded in secrecy. There are not open guidelines such as those in other commonwealth jurisdictions, no interviews, and no explanations or reasons given for non-selection. “Merit” is not defined – is it merely long years of practice, the number of reported judgments, the number of judges you have appeared before or anything else? A lawyer should ideally be designated as a senior counsel if she has shown excellence in advocacy in the high court or supreme court and there have to be some criteria formulated in order to judge applicants in a manner that is sophisticated and formalized, rather than just leave it to the discretion of the judges who would decide it without any guidelines. The absence of any guidelines or criteria for selection makes it more discouraging for women lawyers to apply. A clear and transparent selection process with guidelines for selection would make it easier for all lawyers, male and female, to ascertain whether they have a chance at being selected and then take the courage to apply. This has been done in the UK with a fair bit of success and a detailed application process is prescribed, with guidelines for application.
The Bar is a quite a ruthless place to be in and every move of every advocate, especially every woman advocate, is closely watched by other lawyers and judges. In such a situation, there is definitely added pressure on women not to make any wrong move that could affect their career. Applying for senior counsel and not being selected would definitely not be taken well at the Bar. This fear would be addressed if there are concerted efforts taken institutionally to ensure that there is transparency in selections and that there is an effort at encouraging women lawyers to apply for senior counsel selections and at selecting them as senior counsels. This effort has to come from the courts, the judges and the lawyers, especially other senior counsels.
For too long, senior counsels in India, have formed themselves into an elite male clique, and we need more women into this elite rung of the legal profession – to give the message to younger women lawyers that this position is achievable if you are good. This has been more difficult to achieve than even getting more women on the bench!
