Gender Disparity in Legal Profession

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An analysis of reservation in India

Aim: This article titled “Gender Disparity in Legal Profession” concerns itself with the inequality that is meted out to the women based on their sex, in the legal profession. India ranks amongst the lowest in the gender equality index and the patriarchal setup is very much internalised in the society. On a comparative analysis from other jurisdictions around the world, we are able to actually understand how far we behind we are.

The Issue of Gender Disparity:

“And the jury of men were silenced by her thunder, the judges were scrambling for words and the people in the Court were in awe. The woman advocate had silenced each person in the Court by sheer display of courage to speak up against the patriarchy in an alleged open forum.”

It is true that the women in India are worshipped as a form of Goddess of power and courage. It is also true that India ranks 130 out of 146 in the Gender Inequality Index released by the UNDP, as per 2016 reports.[1] Such is the hypocrisy of the Indian society. Well on its path of development, gender issues in India, in specific, and the world, in general, have been largely ignored, despite them being critically important.[2]

In simplest of the terms, ‘gender inequality’ refers to the discrimination of the women on the basis of their sex. Had it been as simple to explain the facets and deep impact of it on the women and the society, it would have been a boon. ‘Gender’ is something created by the humans and it involves associating certain definite characteristics to a particular sex, while separating out the other for the other sex.[3] Sex is the biological differentiation between men and women, which defines the natural characteristics of human beings.[4]

The root cause of gender disparity in India lies in the system of patriarchy that has been prevalent in the society since times immemorial. Sylvia Walby has adequately defined patriarchy as “a system of social structure and practices in which men dominate, oppress and exploit women.”[5] And interestingly, the variety of religions practiced in India converge at the point of validating and sanctioning the system of patriarchy in the country.[6]

According to the World Bank, in 2014, the total participation of women, in country with 48% of its population as women, was a dismal 24.2%.[7] Other than the dismal presence of women in the labour force, they are also entrusted with work and payments that are not at par with their male counterparts, besides their career paths being shaped very differently than the men.[8]There is a dearth of women in key and senior leadership positions in India. Spencer Stuart India Board Index 2014,[9] found that women accounted for only 8% of directors on the Bombay Stock Exchange 100 companies in 2012.

The gender pay gap in India for the year 2013 was recorded at 24.81% by WageIndicator.[10] It is quite curious to note that women below the age of 30 earned 23.07% less than men, while those in the age group of 30-40 years earned 30.24% less than men.[11] Educational qualifications further accentuate the fact, in an unfavourable way for the women.[12]

The legal profession is not saved by this bane. Rather, the disparity is all the more clear and evident in the legal profession. The issue of gender disparity starts at the very fact that there is a lack of a survey itself done on the issue of gender disparity in the legal profession.[13]There is a constant pressure on the women to perform better or at least as good as their male counterparts. The aggressive women attorneys are stereotyped as harsh and the not so aggressive ones are judged as weak and unfit for the profession of law.

Reasons for Gender Disparity in Legal Profession:

The reasons attributable to the gender disparity in legal profession are several and varied.A well-conducted survey was carried out in the district court of Lucknow highlights the major factors that influence the role of women in the legal profession.[14] The factors include a wide variety and hence, it is interesting to note that even the slightest of the things go a long way in influencing the presence of women in the legal profession.

Firstly, religion plays an important role in determining the participation of women in the legal profession. Out of the 73 women surveyed, 57 belonged to the Hindu community, 15 to Muslims and 1 to Christianity.[15] The low presence of Christian lawyers is something surprising because Christians are one of the better educated classes of India. Other than that, the religious freedom of the Hindu women is far greater than the Muslim women and hence, there is a disparity based on religion.

Marital status of the women also plays a role in their participation in the field of law and so does the family support that they get. A lot of women practising law are unmarried because the women lawyers face severe family pressure and they tend to opt out of their profession after marriage. And by the time, women lawyers find themselves settled professionally, they are started to be considered too old for marriage.[16]

There are reasons for the gender discrimination that women face globally as well, which are as follows. People view women as less competent than men and lacking in leadership potential, and partly because of these perceptions, women encounter greater challenges to or scepticism of their ideas and abilities at work.[17] These perceptions also influence the career progress graph for the women and the slow growth in which tends to discourage the women from taking up law as a career.

Men are considered to be more likely to engage in dominant or aggressive behaviours, to initiate negotiations, and to self-select into competitive environments, which are considered to be behaviours that facilitate the professional advancements.[18] But, what remains unnoticed is the fact that these notions are based on merely stereotypes that have been created in our minds for over the years. And even if it were true, women do not need to adopt these traits to become successful in the field of law rather, they must let to exercise their natural instincts, which would be far more beneficial.

The women lawyers also feel that they are in a race against time and hence, they have only a limited time to achieve certain number of goals which their male counterparts can achieve in more time. Hence, they tend to cut on few goals, be extremely selective about their goals and compromise on them more often and by greater measures than their male counterparts.[19]

Harassment and bullying at the workplace also contributes greatly to the women leaving the profession of law.[20] The women advocates are constantly seen as misfits in the world of litigation and there have been various instances of women are harassed verbally, not just by the opposing counsels, but also by the ‘respectable’ judge of the court. Hence, this perpetuates a strong sense of gender disparity in the legal profession, when the judge of the court becomes the person who discriminates on the basis of sex.

Skewed Representation of Women in Indian Judiciary:

In the mid-19th century, the competition at the Bar was really relentless between the best legal minds of the nation and the number of Indians at the Bar was quite less.[21] The educated women in India, whose numbers were all the more dismal, did assert their right to equality but the laws were structured in a fashion which made their entry into the profession of law very difficult. In fact, the Indian women were denied the privilege of being enrolled as a member of the Bar, until the High Court of Allahabad took the matter into its hand and allowed the application of Miss Cornelia Sorabji to practice law, in the year 1921, thus, making her the first woman to be enrolled as an advocate in India.[22] It lead to the passing of the Legal Practitioners (Women) Act, 1923, which made it a statutory right for the women to practice law and the principle of equality is well enshrined in the Constitution of India.

Having said that, the presence of the women in the legal profession still remains dismally low. Only 12% of the total judges in the Supreme Court and various High Courts are women.[23] The courts in India seems to have gender bias implicit in them, and thus, the missing gender diversity does not come as shocking.

In the year 1989, after 39 years of the institution of the Supreme Court of India, Justice M Fatima Beevi was appointed as the first woman judge of the Apex institution of ‘justice’. Since then, only five more women have been appointed as judges in the Supreme Court. As of now, out of 25 judges in the Supreme Court, there is only one female judge, Justice R Banumathi, with the appointment to the Supreme Court of Adv. Indu Malhotra being pending. At no point there have been more than two female judges in the Supreme Court of India.

The situation in the High Courts is no different. Sikkim is the state with the highest percentage of women judges at 33%, followed by Delhi High Court at 27%, Madras High Court at 18%, Karnataka High Court at 16% and Bombay High Court at 15%.[24] There are states like Uttarakhand, Chhattisgarh, Himachal Pradesh, Jammu & Kashmir, among others that do not have any female judges. In the 24 High Courts, there are 64 women judges as compared to 557 male judges, the ratio becoming 1:8.7.[25]

The problem arises from the more basic level, which is the Bar. The women advocates are treated in a definite way which is blatantly demeaning to them. Only 10-15% of the 17 lakh advocates enrolled with the Bar Councils across the nation are women.[26] Only 12 women have been designated as senior counsels by the Supreme Court of India so far. Only 8 women have got that distinction from the Delhi High Court and 6 in the Bombay High Court.[27] No female office-bearer is present in the Bar Council of India and no woman has ever become Chairperson or the Vice-Chairperson of the Bar Council of India.

The inequality faced by the women in the Courts is more of a behavioural one, where the words of the male advocate are considered as more important as compared to their female counterparts. Senior lawyers like Indira Jaising also face the gender discrimination in the Supreme Court, and she has been recorded saying,

“Even after ‘I have made it’, my word is often treated as less valuable than the word of a male lawyer.”

Stance of Indian Legislature and Judiciary:

There have been some positive steps taken by the Indian Legislature to address the issue of gender disparity, at least, on paper. Two laws have been enacted recently for the support and the promotion of gender inequality within workplace in India:

  • The Companies Act, 2013, which states that every publicly listed company has to appoint a women director on its Board.[28]
  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[29] is the Act which came up on the Vishakha Guidelines for the prevention of sexual harassment that was laid down by the Supreme Court of India[30] The Act also expanded the definition of workplace to include cover a wide range of workplaces and different kinds of work.

There are loopholes with the legislations made in order to address the specific issue. The laws are quite progressive in nature, but, the implementation of these laws in the workplaces remains a constant lacking.

For example, the Sexual Harassment Act requires organisations to define their sexual harassment policies, prevention systems, procedures and service rules; establish internal complaints committees and hold regular gender sensitization and awareness activities, incompliance to which can lead to the cancellation of the license of operation of the organisation.[31] However, the legislation fails to lay down specific structure for ensuring the enforcement of these obligation upon the organisations.

Despite growing evidences that the organisations which promote gender equality and diversity perform better than the organisations that do not do so, there has been little heed paid to by the organisations to the issue of gender disparity and the legislation has not been strong enough to enforce the same.[32] The obscurity of the data available on the gender issues within the organisations is yet another factor which adds to the woes.[33]

There is a piece of legislation in the state of Andhra Pradesh, which can be an ideal to follow for all the other states in India, named Hindu Succession (Amendment) Act, 1986.[34] This Act confers equal rights of inheritance to Hindu women along with men, thus, achieving the constitutional mandate of equality and leaving the women in a better off position to work and support her family.

Indian Judiciary has also played a very significant role in addressing this specific issue. The Supreme Court, first, significantly addressed the issue in the case of Vishaka v. State of Rajasthan,[35]where it was laid before the court the dangers and the variety of forms of harassment that a woman can face in the workplace. There was a clear lack of legislative procedure to address the issue in the lower courts, hence, a writ of Mandamus was filed in the Supreme Court under Article 32 of the Indian Constitution.[36] There was an urgent need of for safeguards of women in workplace and for the time being, until the passing of appropriate laws to address the issue, the Supreme Court passed certain guidelines and norms that were to be strictly observed in all organisations and work places for the preservation and enforcement of the right to gender equality of the working women.[37] These guidelines were applicable till the adoption of the Sexual Harassment Act, 2013.

Article 15(3) of the Indian Constitution, in itself, directs towards taking a more substantive approach towards the application for giving better educational facilities, representation in local bodies and protection in work places for the women. The Supreme Court upheld the service rule that 30% of the job posts preferred women in recruitment to the office of public employees, in the case of A.P. v. P.B. Vijayakumar[38], and further stated:

“To say that under Article 15(3) job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provision for women in respect of employments or posts under the state is an integral part of Article 15(3).”

Further, in the case of Mackinnon Mackenzie &Co. Ltd. v. Audrey D’Costa[39], the Supreme Court observed that there was discrimination in payment of wages to lady stenographers and such discrimination was being hidden under the pretext of settlement between the employer and the employee. The Court made it mandatory to pay equal remuneration to lady stenographer as their male counterparts and also stated further that the financial incapability of the management cannot be a ground for it to seek an exemption from the Equal Remuneration Act, 1976.[40]

In the case of Apparel Export Promotion Council v. A.K. Chopra,[41] a women employee was sexually harassed at a hotel by her co-employee, during the course of employment. The Supreme Court decided in favour of the victim and the company, which itself had brought the accused to the court, and re-affirmed the principles and guidelines as stated in the Vishaka case.

Thus, the trajectory of the case laws evolved has been quite definite. Adequate attention has been paid to the fact that the victim of gender inequality gets adequate recourse under the law and in the absence of any structure addressing the same, the Court has directed the legislature to adopt certain laws to address the issues effectively.

Overall, the judiciary and the legislature do recognise and acknowledge the issue of gender disparity in the workforce in India and have been taking steps, however small they might be, to address the same. But, what remains a problem is the fact that there is no adequate implementation mechanisms for these concerned steps.

Comparative study with Different Jurisdictions:

Gender disparity in the legal profession is not just something peculiar to India, rather women across the globe face the issue of gender disparity. This paper would proceed on to a comparative analysis of the issue of gender disparity in different jurisdictions and how are they handled in those countries.

United Kingdom

In the year 1913, in the case of Bebb v. Law Society[42], the UK’s Court of Appeal upheld the ban placed by the Law Society on women working as lawyers in UK. Women were not deemed to qualify as ‘people’ under the 1843 Solicitors Act. However, after the first world war, there was a significant change in the attitudes and the barrier placed on woman becoming lawyers was removed in the year 1919.[43]

According to the statistical data from the Law Society, which promotes and supports solicitors in England and Wales, women constitute the 60% of the newly qualified and nearly half of all solicitors. More than two-thirds of all law students are female.[44] But, apparently, the happy picture is limited to only so far.

The proportion of female partners in the top 10 UK law firms is 18% according to a 2017 survey by a professional services firm PwC, and only 19% in the next 15 firms.[45] Thus, we see that even though the influx of females starting up their career in law is far more than their male counterparts, the number of women making it to the top position of leadership is way lower.

The barristers and the judges, who are female, are also facing a similar plight. Data from the Bar Council in 2017, states that in England and Wales, there were 1409 male self-employed top barristers and only 254 of their female equivalents.[46] As for the judges, 22% in the High Court are women and the number rise to 24% in the Court of Appeal.[47]

Australia

The legal profession in Australia is considered to be one of the least friendly industries for women in the country with a massive gender pay gap, inflexible workplaces and a massive lack of women in senior and key roles in the country.

The Workplace Gender Equality Agency (WGEA) has researched upon the legal profession in Australia[48] and came up with the following pointers:

  • Legal Services has 28,686 employees within 68 organisations. 69.8% of employees are female.
  • There is a 30.5 percent total-remuneration gender pay gap between the sexes, above the national average gender pay gap is at 23.1 percent.
  • Women fair slightly better in the key management personnel and executive manager sections of the WGEA survey, accounting for 33.9 percent and 45.8 percent respectively.
  • But there is also a 10.7 percent pay gap between men and women in key management personnel, and a gap of 20.5 percent gap in the executive manager component.

A study produced by the Law Council of Australia in 2013, stated that 16% of women practising at the time indicated they would consider working at the Bar, while one in every three women were considering moving to a new job within the next five years.[49]

Australia has come up with Equitable Briefing Policy as one of the ways of improving retention of women barristers within the legal profession.[50]

China

In China, the gender gap in the legal profession is more than eminent. Feminisation of the Bar has been quite slow and hence, the number of women lawyers practising in China is quite less as compared to their male counterparts.[51] Law schools in China have had seen almost same number of students graduating for a long time now, yet, the women appear to comprise a minority in lawyer population, judge population and on law school faculties in China.[52]

There also exists a power gap in the country of China between the genders. The men enjoy a more authoritative position while, the women are receded to the background and to do the ancillary tasks. There is a large female population in the low-status positions in the legal profession in China.[53]The income gap between the genders is also quite eminent in the legal profession in China.[54]

What further causes of worry is that the Chinese female lawyers have been so deeply entrenched in patriarchy that they are not willing to accept gender as a career obstacle.[55] Hence, the situation there is practically worse than in India, where the women do recognise that they are being held back because of their gender and are raising their voices against such discrimination.

Suggestions & Solution to Tackle the Issue

The solutions and suggestions for an issue this complex and deeply entrenched in the very fabric of the society of the ‘civilised’ mankind cannot be a simple one. We must try to address the issue at different levels.

The immediate solution to address the issue of gender disparity in legal profession is that there should be family-oriented policies, favouring the women lawyers in the country. Eliminating sex discrimination requires the immediate adoption of policies that enable workers of both sexes to better combine their wok and personal lives.[56] Such policies should include providing paternal leaves, flexible work schedules and child care, which are of primary importance to the women lawyers who have sacrificed their personal lives in order to advance with their profession.[57]

In the longer run, there is a change needed in the current attitudes of the people at the workplace. The society and the workers as a whole need to be educated and sensitised. The notions for gender roles needs to be abandoned, and the society must view the interests and talent of the female lawyers to be at par with their male counterparts.

The role of employers in this process should be to recognize the extent to which gender bias permeates their operational structures, develop an understanding of how the environment created by these structures influences the behaviour of individuals, and change their operational structures to eliminate that bias.[58]

A primary objective should be to ensure that women are given fair performance evaluations and are promoted according to their worth, not their sex. To do this, employers must recognize that employees are often judged according to stereotypes associated with groups to which they belong rather than by their individual performance.[59]

All decision makers and employees must learn to respect the work performed by women. They must learn that being too personal or familiar, flirting, and referring to appearance and family plans indicate to womenthat they and their work are not being taken seriously.[60] Basically, employers must recognize that any behaviour or comments that bring a worker’s gender to the fore are inappropriate and may cause the employee to question her competence.[61]

Some law firms have come up with the idea of organising and sponsoring ‘diversity training’ programs designed to teach employees to understand and value the difference between men and women.[62]

Once employers commit themselves to instituting these programs, they should also acknowledge their responsibility for educating future employees. In the legal profession, this means that attorneys and their firms must work to eliminate discrimination in law schools.[63] They must make law students aware of the consequences of engaging in overt and covert discrimination.[64]

With regard to Indian context at the Bar and the Judiciary, there needs to be some specific structural changes which need to be made in order to address the issue of gender disparity. The women involved in the legal profession must come together and form an association which can look into the issues of gender disparity at workplace, without letting any women feel alone in their fight against a structural and societal evil. It is also important that such groups and associations are led by able leaders so as to avoid any kind of caste or class discrimination in cases of gender inequality faced by the women in the legal profession.

The justice dispensing mechanisms can set up a standing committee or an able administrative board with adequate staff and resources to address the issue of gender inequality. There must be a proper complaint structure that ensures the confidentiality of the complainant, keeping in view the society that we live in. The Courts and the Bars must associate themselves with groups and individuals beyond their domains to address the concerns of the female members of the system and to sensitise the male members of the Judiciary and the Bar.

The solutions and the suggestions seem to be quite simple and straight-forward because the real challenge does not lie in any system or any structure as such. It is the mindset of the people in the legal profession, in specific, and any profession, for that matter which is the genuine cause of concern amongst the women folks. Hence, there needs to be a holistic approach to address this root of the gender disparity.

Edited by Vedanta Yadav 

References


[1]Gender Inequality Index, available at: http://hdr.undp.org/en/composite/GII

[2]Gender Issues in India: an Amalgamation of Research, available at: https://www.brookings.edu/research/gender-issues-in-india-an-amalgamation-of-research/

[3]Gender Inequality in India, available at: http://www.indiacelebrating.com/social-issues/gender-inequality-in-india/

[4]id.

[5]Sylvia Walby, Theorizing Patriarchy (1990).

[6]supra note 3.

[7]World Bank Data, Labor Force, female (% of total labor force), available at: https://data.worldbank.org/indicator/SL.TLF.TOTL.FE.ZS?end=2014&start=2014&view=map

[8]Julie Thekkudan, India Must Tear Down Gender Inequality in the Workplace, available at: https://www.huffingtonpost.in/julie-thekkudan/india-must-tear-down-gender-inequality-in-the workplace_a_21595119/

[9]India Board Index, Spencer Stuart, available at: https://www.spencerstuart.com/~/media/pdf%20files/research%20and%20insight%20pdfs/india_b2014_body_web-26nov2014final.pdf

[10]Gender Pay Gap in the Formal Sector: 2006-2013, Wage Indicator Report, available at:https://wageindicator.org/documents/publicationslist/publications-2013/gender-pay-gap-in-formal-sector-in-india-2006-2013

[11]supra note 8.

[12]supra note 8.

[13]Sylvine, Gender Discrimination in the Legal Profession, available at: https://blog.ipleaders.in/gender-discrimination-legal-profession/

[14]S.K. Mishra, Women in Indian Courts of Law: A Study of Women Legal Professionals in the District Court of Lucknow, Uttar Pradesh, India, available at: https://journals.openedition.org/eces/1976#tocto2n9

[15]id

[16]id

[17]Renwei Chung, 6 Reasons for Gender Differences at the Top of the Legal Profession, available at: https://abovethelaw.com/2015/09/6-reasons-for-gender-differences-at-the-top-of-the-legal-profession/

[18]id

[19]id

[20]Gender Inequality in the Legal Profession, JB Solicitors,available at: https://www.jbsolicitors.com.au/gender-inequality-legal-profession/

[21]Women in Legal Profession, available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/29299/12/12_chapter%204.pdf

[22]id

[23]What Women’s Day? It’s 2018 and Only 12% Judges in India are Women, available at: https://www.thequint.com/voices/women/how-many-women-judges-in-supreme-court-and-high-court

[24]id

[25]Soni Mishra, The Sexist Bar, available at: https://www.theweek.in/theweek/cover/gender-discrimination-in-judiciary.html

[26]id

[27]id

[28]The Companies Act, No. 18 of 2013, India Code (2013), available at: http://indiacode.nic.in.

[29]The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013, India Code (2013), available at: http://indiacode.nic.in.

[30](1997) 2 CHRLD 202.

[31]supra note 29.

[32]Gender and Economic Policy Discussion Forum, available at: https://in.boell.org/sites/default/files/uploads/2013/10/briefing_paper_18.pdf

[33]id

[34]The Hindu Succession (Andhra Pradesh Amendment) Act, 1986, No. 13 of 1986.

[35](1997) 2 CHRLD 202.

[36]India Const. art 32.

[37](1997) 2 CHRLD 202.

[38]1995 SCC (4) 520.

[39]1987 (2) BomCR 654.

[40]Equal Remuneration Act, No. 25 of 1976, India Code (1976), available at: http://indiacode.nic.in

[41]66 (1997) DLT 327.

[42][1914] 1 Ch 286.

[43] Barney Thompson, Legal Profession must break its glass ceiling, available at: https://www.ft.com/content/4930f09a-02cd-11e8-9e12-af73e8db3c71

[44]id

[45]id

[46] id

[47] id

[48]Eoin Blackwell, Equality is a Still a Long Way Off for Women in the Legal Profession, available at: https://www.huffingtonpost.com.au/2016/11/29/the-law-relies-on-women-so-why-cant-it-retain-them_a_21616120/

[49] National Report on Attrition and Re-engagement, Law Council of Australia, available at: https://www.lawcouncil.asn.au/policy-agenda/advancing-the-profession/equal-opportunities-in-the-law/national-report-on-attrition-and-re-engagement

[50]supra note 48.

[51]Kasey Considine, Gender Dynamics in China’s Legal System: Comparative Analysis with the United States (2016), available at: https://kuscholarworks.ku.edu/bitstream/handle/1808/21832/Considine_ku_0099M_14679_DATA_1.pdf?sequence=1

[52]id

[53] id

[54] id

[55] id

[56] Suzannah Bex Wilson, Eliminating Sex Discrimination in the Legal Profession: The Key to Widespread Social Reform, 67 Indiana L. J. (1992).

[57]ABA Commission on Women in the Profession, Report to the House of Delegates 7 (approved Aug. 10, 1988).

[58]R. Kanter, Men and Women of the Corporation,264 (1977).

[59]Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment Discrimination, 21 B.C.L. Rev. 345, 356 (1980).

[60]id at 357.

[61]id at 357.

[62] Saltzman, Trouble at the Top, U.S. News & World REP., June 17, 1991.

[63]Schafran, Gender and Justice, 42 FLA. L. Rev. 181, 207.

[64] Barnett, Women Practicing Law: Changes in Attitudes, Changes in Platitudes, 42 FLA. L. Rev. 209, 223 (1990).

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Nitesh Mishra
I am Nitesh Mishra, from National Law University, Delhi. Law, the implications and the interactions that it has with the society is something that has interested me from a long time. Constitutional Law has been of keen interest to me ever since. Amongst the relatively more recent fields of law, Intellectual Property Law and Competition Law have appeared to be quite fascinating to me. I have a flair for legal writing and research. Other than these, mooting has also been an interest to me. I take an active stance in the political debates and discussions. Apart from my interests in law and legal studies, I am fond of music and appreciate the various forms of art, irrespective of them being a book, a painting, or a visual media.