This article is written by Daksh Ghai, from Symbiosis Law School, Noida. The article provides a brief overview of the bias and difficulties women face in the legal sector, which is in stark contrast to men’s experiences.
Historically, the law has been a major motivator of societal development. Despite its long history of inflexible traditions, the law has proven to be extraordinarily adaptable when it comes to changing views on what society is ready to accept as the norm. Equal opportunity in the workplace has become an expectation in modern culture as a direct outcome of legal activity. Most professions today have adopted an inclusive culture that values variety in terms of gender, colour, ethnicity, disability, sexual orientation, and other categories. However, the legal profession has been reluctant to adapt.
The gender composition of the legal profession has changed dramatically during the previous three and a half decades. During that time, the number of women enrolling in law school and entering the profession has increased steadily, from a few early pioneers to about equal representation with males.
History of the Indian legal fraternity
India, like many other countries, had its own distinctive legal evolution story. India has some of the strongest legal writings in the world, dating back to the ancient period, which has benefited the then-societal set-up in moving forward by properly regulating ways. India has always demonstrated its richness in legal fundamentals and understanding, whether it was during the Vedic era when smritis and shastras were expounded by significant luminaries who ushered knowledge in the fields of law and administration, or during the Indus valley civilization when the civil law system was always given a high value.
With the arrival of Britishers in India, a slew of changes occurred in the sphere of law and how it was applied on the ground, some of them were so purposeful that the government decided to keep those laws in place after independence to regulate society with the fewest changes feasible. Women’s participation in the Indian legal system was non-existent in ancient times.
Though many Indian women defied the restraints and went ahead of their time to pursue their search for knowledge in numerous sectors in later times, they remained outside of the legal realm till the turn of the twentieth century. Cornelia Sorabji, India’s first female lawyer, was authorised to practise in the Allahabad High Court in 1924, making her the first in the league to join this male-dominated environment. She was not only the first woman in the world to study law at Oxford University, but she was also the first woman in the world to represent women in the male-dominated world of legal professionals. She was the first woman to take the Civil Law Examination, but she was unable to receive a degree because women were not permitted to receive a law degree in the United States until 1920. However, due to male bias and discrimination, she was only allowed to provide opinions instead of pleading any case.
This advancement in the Indian judicial system came after a long period of trial and error. Two major judicial pronouncements in this regard, namely In Re: Regina Guha v. Unknown, (1916) and In Re: Miss Sudhansu Bala Hazra v. Unknown, (1921), and the concomitant enactment of Legal Practitioners (Women) Act, XXIII, 1923, were prominent among the considerations. The main issues raised in both of these lawsuits were that when the female population of India obtains a law degree from a recognised university under a specific Act, they should be allowed to appear as a pleader in a court of law and that there are no provisions in the current legislation for the profession that prevent female law degree holders from practising publicly. It ushered in a wave of societal change, and as a result, the above-mentioned legislation was enacted, paving the way for female law students to join the Indian legal profession.
Structural inequality : the root of the problem
Despite its many virtues, the legal profession has long been a bastion of conservatism and gender inequality. It has been many years since women were granted the right to vote, but gender inequality persists, and it is timely that the issue receives the attention it deserves. Women were not allowed to practise law until a few years ago, which is relatively recent in the context of the legal profession’s long history. The structure of the profession is tilted toward men. Even though we have moved on to different models, the foundations, and the created structures around them, remain largely the same, implying that law firms have historically been constructed in a way that supports male supremacy and precludes modern-day living. It assumes a lot of cultural assumptions from the time period that have subsequently been proven to be outdated and ineffective. This structural inequality also creates the perfect conditions for a culture to thrive in which it is possible to perpetrate and get away with harassment; a male-dominated managerial class rarely questioning a shared set of assumptions, beliefs and behaviours, that polices itself as it sees fit.
Challenges faced by women being legal professionals in India
If the current scenario is taken into consideration, it can be construed that female law aspirants are entering into the profession with leaps and bounds. If the law universities’ students are taken into account, the gender ratio will be optimistic in terms of the equal presence of girls and boys.
Firstly, the proportion of the female participants in the practice and the judiciary, their presence in higher judicial posts. Secondly, the degree of conducive environment provided to the female legal professionals at their workplace.
Babasaheb Bhim Rao Ambedkar had said, “I measure the progress of a community by the degree of progress which women have achieved”. It took approximately 40 years for the first woman judge, Justice Fathima Beevi, to be appointed to the Supreme Court, and 68 years for Justice Indu Malhotra to be directly appointed among six male judges. Despite the fact that the Supreme Court now has three female judges, it does not appear that the first female Chief Justice will be appointed anytime soon. Five male justices have already been named to succeed the current CJI until 2025. Pakistan recently appointed Justice Ayesha Malik as the first woman Chief Justice of Pakistan.
The next problem that has been brought up is the favourable working environment. When we talk about a healthy environment, we’re talking about things like having the freedom to work in an environment free of physical or mental harassment, having a safe and sanitary workplace in which to develop a healthy mental capacity, and so on. When female lawyers face discrimination based on preconceived notions of ability and aptitude, unequal pay for equal work, career breaks due to maternity leave, denial of promotions in the workplace, and sometimes due to their own dwindling behaviour while balancing between their work and personal lives, the issue of mental harassment enters the picture. The majority of corporations are unwilling to invest in female talent. They see maternity leave and benefits as a financial burden.
The legal profession in India has evolved in terms of form and content, taking numerous paths along the way to its current state; women are now an integral part of the system. When we talk about a healthy environment, we’re talking about things like having the freedom to work in an environment free of physical or mental harassment, having a safe workplace to develop a healthy mental capacity, and so on.
When female lawyers face discrimination based on preconceived notions of ability and aptitude, unequal pay for equal work, career breaks due to maternity leave, denial of promotions in the workplace, and sometimes due to their own dwindling behaviour while balancing between their work and personal lives, the issue of mental harassment enters the picture. The majority of corporations are unwilling to invest in female talent. They see maternity leave and benefits as a financial burden.
On the other hand, sexual harassment is a typical occurrence in the legal sector. The “Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013” includes a broad definition of the phrase “sexual harassment.” However, when the term “workplace” is construed, courts are explicitly excluded from the definition, hence the Act’s applicability is limited.
Furthermore, when it comes to female advocates who practise, there is no employer-employee relationship. As a result, they must rely on the internal committees established to address the issue. Though, in recent years, the Supreme Court of India has established a gender sensitization committee (Supreme Court Gender Sensitisation and Internal Complaints Committee (GSICC)) to deal with sexual harassment issues on its grounds.
However, most high courts in India lack complaints committees that would investigate sexual harassment charges. Even if they do, they are mostly inoperable. Some courts in India are grappling with the lack of sufficient sanitation facilities for their female attorneys, which is one of the most basic needs one should have while at work. Furthermore, overcrowding in courtrooms frequently leads to an unpleasant environment.
In addition, the legal profession has major issues with toxic masculinity and male control of top positions, which enables for inappropriate behaviour to flourish.
In a survey done by Legal Week in late 2017, two-third of female respondents said they had encountered sexual harassment at work, with 51% saying it happened more than once, while a survey of female barristers indicated that many women still face harassment and discrimination at the Bar. Behind the harassment is a structural issue that disadvantages women in other long-term, significant ways, as male-governed and male-centric workplaces and career paths ensure that women earn less on average than men, have fewer opportunities for advancement, and are expected to shoulder disproportionately high levels of parenting responsibilities compared to male parents, often at the expense of career advancement.
Stance of the Indian Legislature and Judiciary
The Indian legislature has taken some constructive moves to address the issue of gender imbalance. In India, laws have recently been implemented to support and promote gender imbalance in the workplace:
- The Companies Act, 2013, under Section 149 states that every publicly listed company has to appoint a women director on its Board.
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is the Act that came up on the Vishakha Guidelines for the prevention of sexual harassment that was laid down by the Supreme Court of India The Act also expanded the definition of the workplace to include cover a wide range of workplaces and different kinds of work.
- Rajiv Gandhi National Creche Scheme for Children of Working Mothers (including single mothers) to provide daycare facilities for running a crèche of 25 children in the age group 0-6 years from families having monthly income of less than Rs 12,000.
- National Mission for Empowerment of Women (NMEW) to strengthen the overall processes that promote all-round development of Women
- Working Women Hostels for ensuring safe accommodation for working women away from their place of residence.
Position in the judiciary
The Indian judiciary was active in encouraging women to enter the legal profession, eventually appointing Hon’ble Justice Anna Chandy to the Kerala High Court as the country’s first female judge. The path of women in the legal profession can very easily be described as a process of continuing challenge. Even in India, where women were given political rights such as the right to vote and the right to contest elections at the same time as men, a hard battle had to be waged for women to be able to practice as legal professionals. Anna Chandy from Kerala became India‟s first woman judge in 1937. She was promoted to the Kerala high court in 1959, the first woman judge to make it to a high court.
Since the Supreme Court of India was established in 1989, all 93 judges who have served on the all-powerful highest Court have been men. For decades, women have been denied access to legal education, but few of those who have made a difference by pursuing it did not have an easy road to walk on. According to the pattern in the Indian judiciary, it took nearly four decades for a woman to be appointed to the Supreme Court of India after it was founded. Only seven female judges have served on India’s Supreme Court to date. A female senior lawyer was only directly appointed as a Supreme Court Judge in 2018. Many in the legal world regard Indu Malhotra J.’s direct transition from the bar to the bench as smashing a huge glass ceiling, as it has cleared the way for more female advocates to be immediately nominated as Supreme Court judges. The court’s previous six female judges were all elevated from the high court, with M. Fathima Beevi J. being the first to do so in 1989. Her appointment shows the status of women in the bar and the recognition of the talent of women.
The remedies and suggestions for a subject as complicated as this, which is deeply embedded in the very fabric of the ‘civilised’ humanity’s culture, cannot be simple. We must attempt to solve the problem at multiple levels.
- The most immediate solution to the issue of gender imbalance in the legal profession is for the country to adopt family-friendly regulations that favour women lawyers. To end gender discrimination, regulations must be implemented immediately that allow professionals of all genders to properly balance their professional and personal life. Paternity leaves, flexible work schedules, and child care should all be included in such rules, which are especially important to women lawyers who have sacrificed their personal life in order to progress in their profession.
- In the long run, a shift in people’s attitudes at work will be required. The entire society, as well as the workers, must be educated and sensitised. Gender roles must be abandoned, and society must consider the interests and abilities of female lawyers to be on par with those of their male counterparts.
- Employers’ roles in this process should be to notice how gender bias pervades their operational structures, gain a better knowledge of how the environment formed by these structures influences individual behaviour, and adjust their operational structures to eradicate that bias.
- One of the most important goals should be to ensure that women receive fair performance evaluations and are promoted based on their merit, not their gender. Employers must know that employees are frequently rated based on preconceptions associated with groups to which they belong rather than their individual performance in order to achieve this.
- There are some specific institutional changes that need to be implemented in the Indian setting at the Bar and in the Judiciary to address the issue of gender imbalance. Women in the legal profession must band together to build an organisation that can investigate workplace gender disparities while also ensuring that no woman feels alone in her struggle against a structural and societal evil. In cases of gender imbalance in the legal profession, it is equally critical that such organisations and associations are led by capable leaders to avoid any form of caste or class prejudice.
Finally, although more women are entering the legal profession, they are not in the same positions as males. Rather than focusing on the gender of the practitioner, arguments that the simple arrival of women must create a difference in the practise of law should look at the work circumstances where different methodologies might be used. Breaking down internal obstacles produced by the existence of sex-role assumptions and norms dictating that women should be subordinate to males in public and private life is the first step toward making the profession more women-friendly. While the ambivalence that women experience when attempting to balance their traditional domestic roles with their professional roles, as well as the profession’s male-centric approach, cannot be eliminated overnight, small steps must be taken to make it more feasible for women to succeed in the profession. The Delhi High Court’s intention to open a crèche for the daycare of children of women advocates and court employees is one such initiative. Small steps are being taken to make it more viable for women to have a successful legal career with such actions; but, these are only drops in the ocean, and much more needs to be done for any substantial change to occur.
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