Globally and historically, the profession of law has been unwelcoming of women. In India, this continues to hold true even today. While the number of women running successful corporate law practices, heading legal departments of national and multinational organisations, and chairing academic institutions has steadily increased, the number of women lawyers who pursue litigation through their entire professional careers is not as impressive.
The recently concluded Delhi High Court Bar Association (DHCBA) election serves as a grim reminder of the fact that the Bar has been slow to accept the female lawyer. Out of the 52 lawyers who contested for eight posts open to both the genders, only four candidates were women. Against these eight posts, 14 candidates were to be appointed. Only one female lawyer was elected. The Executive Committee of the DHCBA for this year therefore comprises two women lawyers (a ninth post is reserved only for female lawyers). A 13.33% of representation may be laudable when compared to a few other Bar Associations within and outside the capital but is certainly not aspirational.
The number of women lawyers in the country enrolled with the Bar Councils is pegged at approximately 15.3%. The number of female lawyers empaneled by the state and its instrumentalities is less than 25% in most states. The Bench fares a little better. Out of the 46 sitting judges of the Delhi High Court, only 11 are women and seven were practicing lawyers. Notably, the Delhi High Court has the maximum number of female judges. Patna High Court, with 36 sitting judges, has no female judge. In all, 49 of the 86 female High Court judges, as of October 1, 2022, were appointed from the Bar. These figures indicate that the number of women lawyers above the age of 45 (conventionally the minimum age for elevation to the High Court) at the Bar dwindles.
Notwithstanding the fact that women were allowed to join the Bar as a result of prolonged battles fought by the likes of Regina Guha, Sudhanshubala Hazra and Cornelia Sorabji, women’s entry into the profession was accepted begrudgingly under the letter of law but not in spirit. The legal fraternity (men) consciously failed to foster an environment in which women lawyers could excel. The prejudice was apparent and the bias ingrained, which continues to wane but still exists.
This, accompanied by the fact that making a name at the Bar takes several years, earnings are notoriously low in the beginning, unavailability of or poorly maintained restrooms, lack of mechanisms ensuring safety at the workplace, hostile environment created by male colleagues, inability to take maternity break without considerable effect on practice and the lack of support from the family keeps female lawyers out of litigation all together or forces several of them out eventually. The recently issued notice by the Pune District Court (which has since been withdrawn) asking women not to arrange their hair in open court is an example of an uneasy atmosphere created in practice.
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The biases are not restricted to their male colleagues and the predominantly male judiciary but are apparent amongst litigants who prefer male lawyers as they are perceived to be more impactful, recognised, and not tied down by family commitments and parenthood. This also prevents women lawyers from charging fees equal to their male counterparts. Pigeonholing women lawyers to the practice of family law and rights based litigation also directly impacts their ability to practice in the more lucrative fields such as commercial disputes.
The Bar has become more inclusive than it was at the beginning of this century. This has been a result of creating a better infrastructure (albeit not universally) in terms of accessibility to washrooms, exclusive bar rooms for women, and creche facilities accompanied with accessibility to legal education, increasing representation in the higher judiciary and directly addressing biases.
However, several other measures need to be undertaken to allow women lawyers to excel. Senior litigators need to promote their junior female colleagues, recognise, and appreciate their work and bring it to knowledge of the clients. This will not only motivate the female lawyers but also go a long way in breaking down the prejudice that litigants may have with regards to the abilities of female lawyers. More women must be appointed from the Bar to the higher judiciary. Elsewhere, I have argued in favour of reservations in the higher judiciary which will help break its old boys club image that persists even today and boost the next generation of female litigators.
While a private party cannot be forced to engage a lawyer, the State can actively promote engagement and empanelment of women lawyers which will enable more facetime for the community and help dislodge the false notion of women lawyers not being as capable as their male counterparts. Eventually, this may also impact the choices made by private litigants as they will be at ease to engage female lawyers in view of their ubiquitous presence in courts and their ability to do the job as well as, if not better than their male colleagues. It will also provide a level playing field for women lawyers to be designated as senior advocates and receive appointments to top posts like that of the Attorney General and Advocate Generals.
To ensure that female lawyers are not forced to leave litigation on account of pregnancy and motherhood alone, virtual hearings should be permitted wherever feasible so that she can balance her professional responsibilities with personal life choices. Sensitisation of the higher judiciary and the Bar is necessary to cultivate a more congenial environment. Most importantly, female litigators need to be engaged to know first-hand about the impediments faced by them in practice and they should be the ones who should lead the charge to bring about this change.
Indeed, since Sorabji, several women lawyers like Indira Jaising, Rebecca John and Vrinda Grover have made their mark at the Bar. But the numbers confirm that a successful female litigator is the exception rather than the norm. For all the clarion calls for recognising and enforcing women rights and equality amongst all genders which the Bar continues to advocate for, it has fallen short on remedying the malaise in its own house.
The late Justice Ruth Bader Ginsburg famously recounted that people were shocked when she said that only when the Supreme Court of the United States has nine women judges it will be enough while never questioning that there used to be a time when all nine were men. The sentiment rings true in the context of the Indian Bar as well which needs to accelerate its efforts to achieve equality within its house.
Rhythm Buaria is an advocate practicing before courts and tribunals in Delhi.
Featured image: Reuters