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In 2007, Indu Malhotra became only the second woman to be designated a Senior Advocate by the Supreme Court of India, 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: I actually strayed into law. My interest was more academic 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. I enrolled in 1983 and have been practicing ever since.
B&B: So having a legal background helped you in the profession?
IM: Well, that certainly gave me a foothold for the reason that I had the infrastructure. But 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.
Certainly [the legal background] did help me because you grow up in an environment and that helps. You met legal luminaries at social functions. This certainly helps you, and it gives you an orientation.
B&B: Can you tell us a bit about your initial years?
IM: I worked for the first three 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. 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. After which I took the Advocate on Record exam and then I started my own practice.
B&B: What was the attitude of the legal profession towards women in the early 80’s?
IM: I wouldn’t say there was discrimination as such but the profession is a tough one. It requires complete dedication of your time, and you are left with very little time for anything else. 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.
B&B: You were only the second woman to be designated Senior Advocate by the Supreme Court?
IM: 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 Leila 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.
B&B: How do you think the legal profession differs for men and women?
IM: 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. 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.
B&B: Any particular challenges you faced to reach where you have reached? What challenges do women in litigation face?
IM: 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 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.
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.
B&B: On the allegations of sexual harassment against Supreme Court judges, what do you think would have been the best way to handle it? Were you surprised when you heard of it?
IM: The day the news broke out, I was shocked. I sincerely feel there should have been a mechanism but 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 posts 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 especially from people who are in the judiciary. 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.
B&B: I have met lawyers who have openly said that they would not prefer women juniors or women clerks – thoughts?
IM: 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.
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.
B&B: If you were to make any changes in the legal profession, what would those be?
IM: 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. Otherwise it becomes too “in-house” a system, which remains within the confines of a few people and sometimes its not very objective.
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.
B&B: Do you think senior counsels are concerned about the quality of the Bar and helping junior lawyers?
IM: 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. People who are successful are too hard pressed on time.
B&B: What about Bar associations?
IM: Bar associations really are more political. Rather than doing anything great for the Bar as such, they have become too politicized.
B&B: 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?
IM: 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. 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.
B&B: You handle a lot of arbitration matters, any thoughts on the future of arbitration in India.
IM: There is a lot required in arbitration. 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. Secondly we need to fast track the international commercial arbitration because if we don’t fast track it, a lot of international commercial arbitration will move away from 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. In ad hoc arbitrations, there are no time lines, 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.
B&B: There is a petition pending in the Supreme Court for scrapping the AoR system, what do you have to say?
IM: There has to be an AOR system. 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.
B&B: What interests you other than law?
IM: I am very house proud. I like cooking, I love gardening and I love traveling.
B&B: What advice would you give to young lawyers?
IM: 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.
This interview was conducted in March, 2014. Premium readers can read the entire interview here.