Is there a need for Positive Discrimination in society to empower women—A dialogue with Senior Advocate Pinky Anand

BW Legal World initiated a Dialogue of Change in view of the International Women’s Day 2021, to bring real and enduring change one conversation at a time. BW Legal World in association with BW Businessworld hosted 50 women in law on March 06, 2021, at its virtual conference titled Gearing up for India@75: What Women Want—A BW Legal World Dialogue with Women Leaders in Law.

Here’s an edifying dialogue between the BW Legal World Managing Editor, Ashima Ohri and Senior Advocate Ms Pinky Anand, one of India's most formidable women litigators. View the dialogue here.

ASHIMA OHRI: Ms Anand, what's the one thing that you'd like to change about the current legal framework or any of the laws about women in India as of today. 

PINKY ANAND: Ashima, thank you for having me on this program and I'm delighted to be part of the International Women's Day with you. But let me tell you there are so many changes that have happened in the past so when I sit back to think about it how many more changes can we do. So, I’ll make just one preliminary statement, which must come to focus. While we pay so much attention to gender diversity and gender equality and issues around women empowerment, I must say that we mustn't always have laws or even possibly judicial precedents necessarily which only talk about gender issues and on that basis proceed on that level. Because sometimes too many advancements supposedly in the name of a cause, get to be over possessive. I must put this caveat, somewhere in the beginning of this conversation but having said that, as I said, there have been changes through the law or whether it's inheritance, whether it's succession, whether it is rape whether it's sexual assault. So, we've been having a complete pandora's box literally coming out with legislative changes in this country and the evidence is from 1980, specifically, I would say the 1980s mark the trend upwards. But one of the issues that I think would do with a tremendous amount of involvement and hasn't been so, is the economic, contribution of women in the household and in the family. I think that is still something which has not been motioned as a feature that should go into the asset evaluation and in the event of a dispute divided between, let's say the husband and the wife because the economic contribution of a woman as a housewife is something which is not considered. It has been noted several times, Ashima, by the way, but it just hasn't seen the light of day. And I think in today's time and age, all said and done, empowerment of women is across several surfaces. So, that stems across from physical security to economic security to mental security. So, in each of these directions, if you look across on the economic platform, in particular, which leads itself to a tremendous amount of empowerment, what and how do you bring in this feature in the Indian law to enable, adjust justification of women contribution as citizens, as a member of the household, as a member of the family. So, I think that's a very important issue that must come into play. And even though you asked me one, I'll mention a second, which is the political hemisphere. I think political involvement again is something which is essential because you have to be policymakers, when you talk about women in several roles, I know we talk about professions, we talk across different businesses, we talk about our corporate life. you even have a law that empowers or mandates that you must have a woman director in every company. Now that these kinds of policies have come into being. But for political contribution even though it’s a very wide debate as to whether you should have a reservation, I will leave that subject there for another day. But the way things are and the kind of representation there is, we are somewhere between 14% in the Lok Sabha and Rajya Sabha which of course, there has been a tremendous enhancement from the past, but unfortunately still not enough. Until you have women as equal seekers in the whole bargain and there is a lack of opportunity so you have to basically go beyond that initial stage to let women come in the forefront and particularly as policymakers so that they can actually be part of the mainframe to have women as part of the mainframe is a very important function of the country of the world as a thought process. And I think that's where we need to really build upon. It is something again which has been pending for almost since 1986 and it is seen in the house of parliament six times over, but it just hasn't seen the light of day, and there is a commitment from everybody towards this direction so all political parties, by and large, have been mooting it, but the need to have it, the need to fast forward the entire steps to have that kind of gender balance across the surface is something that I think is very important. 

ASHIMA OHRI: What has been the state of women's access to justice in the last year? There are statistics that surmise pandemic has set us back by maybe 10 years or 20 years in terms of access to justice, that domestic violence has increased threefold with no legal recourse in sight. Ms Anand, what are your thoughts on what has happened in the year past and is the way forward?   

PINKY ANAND: See Ashima, you're right, the pandemic is a feature which is taking the country backwards in more than one direction. Definitely access to justice by itself, even though very wide and we have done tremendously well in providing access to justice through the surface from Supreme Court, down to the trial courts. Nonetheless, yes there has been tremendous barriers to access to justice, and definitely, women being in that sense, a more marginalized section, who suffer the consequences as one feature. The second feature, of course, is mental stress and confinement and the lockouts have created tremendous situations of increased not only domestic violence for women but also possibly for children, but more so in that direction, because stress itself has its own bearing and by the way that is another feature that we must concentrate on because I think the assistance to women would be far higher if you're able to concentrate also on the mental stress parameters which we have not been able to do as much and I do understand to some extent the reason, but at the same time and I don't lose sight of the significance of it. When we are talking about process, by the way across various countries we find that most countries have come out with positive solutions to encompass these mental stress conditions. So, coming back, the mental stress issues, definitely have devastated women in more ways than one and the island has aggravated those conditions and has been difficult for women to access or it's not because they are women, but because access to ports itself has been restricted in various fields. So, I would say that obviously the natural probability would be that and particularly when you're talking about domestic violence, but I'll also share with you one interesting feature. I was reading an article about doctors and hospitals and somebody said that nobody's dying anymore of anything but of COVID. I am talking about the earlier days of COVID or that nobody's having heart attacks. So, you do have priorities being given by circumstances to situations. So, to some extent, there has been a lessening of people wanting to go to court to some extent there has been restrictions for women definitely because all such cases would not be taken up, but we must mention also that there is a need of people to necessarily access because other issues have taken priority or precedence over these issues. So, at the same time I also noticed from the NCW, National Commission for women's statistics and other complaints that a large number of complaints were received and were tackled. Quotes, however, yes, there were restrictions. 

So, I guess we're talking at a time now that we are opening up in more ways than one. For example, the Delhi High Court, I am just mentioning the Delhi High Court because there is planning on the 15th of March. So, as we speak, and trial courts have by and large opened up of course in various parts of the country as well as the High Court and the Supreme Court is also considering the options and particularly for the benefit of lawyers and this is not for women or men but for lawyers, in general, all the young lawyers. So, I guess, yes, that will happen, but another feature that has created problems is also financial issues because what happens is access to ports by itself requires expenditures, it requires consulting lawyers, it requires the importance of times and various other factors. So even those issues, which have come in because of the COVID pandemic have restricted the access of women to justice and I think definitely we need to have some kind of system so that as and when the courts are opening up their normal processes, they should be quicker access provided in terms of whether it's a helpline, whether it is NCW, whether it is complaints, whether it's police. See, take another feature, how does a woman in cases of criminality for example, it is in Section 498A or 406 actually physically go to the police station, you can’t! So then, in these features which unfortunately there were no answers to. But adverse times being adverse situations and I guess we will be over those pretty soon as and when we have the functioning fully. 

ASHIMA OHRI: That's certainly very encouraging to know, Ms Anand. As we know equality is enshrined in our Constitution— and in view of the caveat we started our conversation with— what positive discrimination would you say is needed or not needed to empower women in India? 

PINKY ANAND: I told you, Ashima that first statement you're right. I'm glad you pointed it out because I do think that India has been making far-reaching changes in the legislature, in policies. We actually had changes across the board. So, whether as I said, for example, let's take the Hindu undivided family companies where the woman is not entitled to have a right before. Now, 2005 saw that amendment in the Hindu Succession Act, for example, which entitles women to be Coparceners, which made women in fact to be Coparceners and subsequent judgments have made it even wider to say it is retrospective. So, take women's commission, in the army, in the Air Force in each of the forces, I think that is one of the grandest changes, honestly, it is something that we've been fighting for to say that this should be something which comes into focus because you allow. My belief is that we must allow women to do what they can do, where they can excel, where they can contribute, it should be a matter of choice and choice is dictated by the necessary education, by the necessary access, by the necessary access not only to let us say the profession itself but to health facilities to the educational part of it, to social infrastructure very often, for example, I would find that women have not undertaken assignment because of some kind of physical impediment or the other. I can't go out at night or it is not safe or I can't drive a car or I am nervous. Now, these kind of features is something that we have to work out of our systems and the only way you can work it out is if you move together. But equality wise, honestly, even the domestic violence act. Now, I was there for the case, Hiralal Harsora v. Supreme Court. Where the Court categorically said that you can have perpetration against a woman by a woman. You can have perpetration by a male. Interpretations have been made on a positive line, the government for example has barely focused so well on the policies relating to women and it has had a very big reflection on the number of women who are coming forth as voters. And this is because the 2014 elections saw that and the 2019 elections saw that. So, the difference between women and men voters, for example, forget the leaders, has been less than 2%. I mean that is something that is phenomenal. The idea being, you don't only need to exercise power as professional leaders or political leaders, or as industry leaders, you need to exercise the powers of your mind, of your skills, of your capacities, of you being a citizen. I think, these kinds of changes, which are brought about whether you talk about the Ujjwala scheme, you talk about the Constitution, our Constitution is one of the most equal constitutions that exists in the world. India saw voting rights, right from the beginning of the Constitution, it was something that was never denied. I feel very unhappy making it as a positive statement in a sense, all others should have done in. India has been definitely one of the most equal, and every possible constitutional interpretation that has come subsequently has been proactive and pragmatic and always leans in favour of women. And I think increasingly the judiciary, by and large, has been sensitive, by and large, been proactive and by and large, interpreted in favour of women. The lacunae are more in procedures, on people, people to people action. So, it really starts somewhere there, where you need to have more education, where you need to have more maturity, where you need to have more acknowledgement, where you need to have less an egos maybe. The whole balance seems to be that we need to function far more principally on our upbringing right as children upwards, you can climb a tree, you may fall down, so we avoid. I think that's where it goes. And as I said, I always appreciate Modi Ji’s starting as a Prime Minister on addressing women's issues including issues of sanitation and toilets, as a primary teacher because access really builds you. You cannot do something like Justice Leila Seth, she’s no more and she's on the grand list of Chief Justices of the High Court that we've had in the first of course. She mentioned why she was going to the Bihar High Court, there wasn't a lady's toilet. Now, you may say this is somewhat of a smaller issue but clearly, it isn't. So, for example, the scheme that the government has got about for sanitation, Swachh Bharat, is something that has led women onto empowerment. There is the linkage between each of these features and this is the way we have to go. 

ASHIMA OHRI: Thank you so much, Ms Anand, for sharing these lovely thoughts with us and bringing to light positive changes that often go unnoticed. One thought that you would like to leave our women with or any piece of advice for them?

PINKY ANAND: See, everything in life is built upon determination, broadly acknowledging yourself, acknowledging your own imperfections if at all. The confidence that you're able to exude and all said and done, the hard work that you put into your work. One of the important features that I do think that we do need to think as women, as lawyers, in particular, is, there are a number of issues where we feel that we are endangered or we are threatened. There is actually nothing of that kind. It is only our perceptions or perceptions built from time to time. So, we have to dispel those notions, not only for others but even for ourselves. And if we are able to demonstrate I believe that very strongly if you're able to demonstrate that career path is an important part for us, everybody also will acknowledge in those terms, so it's your own acknowledgement, which is very often translated in the minds of others, who then treat you with the same respect that you want to be treated with. I think that's where one of my most important thoughts would be and there is nothing that can't be done. It is only the will, the desire, the dedication, the energies and I think the law needs a lot of energy, by the way, so we should not feel hampered in any manner by lack of energy, we have it almost as much as anybody else does. So, each of these features built into you're coming up as a lawyer, and, and making it there. See ultimately how you come to the top, how you're able to make your way through there is always a checkered past, there's no easy path, there may be some people who have some benefits, which translate themselves. I am a first-generation myself so I know, in a sense, how hard it is. At the same time, the hard part doesn’t seem so hard, I just worked at it and went on and you kind of went going there and it kept proceeding along that line. And finally, you do manage to see the end of the tunnel and some light there. 

ASHIMA OHRI: Thank you so much. In fact, one of the trending hashtags for the year 2021 and on the theme of International Women's Day has been 'choose to challenge'. And we will continue to challenge and advocate for positive changes. Thank you once again, Ms Anand, for joining us today. It's always so wonderful to hear from you. 

Note: The automatic transcription has been lightly edited for a better reading experience. Some names and parts of the transcription may carry inadvertent errors that we are in the process of editing. Thank you for your understanding.