Gender Equality In The Bar And The Bench - The Need For A Movement At The Bar For Transformational Change

As India enters its 75^th year of independence, it is a good time to review gender equality in the legal profession and to set goals for 2047 when we would be celebrating 100 years of our independence.

Gender equality is one of the United Nations' Sustainable Goals. In Goal no. 5, the UN has declared that "Gender equality is not only a fundamental human right, but a necessary foundation for a peaceful, prosperous and sustainable world." Gender equality is also enshrined in our Constitution.

The most fundamental aspect of equality is equality in opportunity. However, the same is continued to be denied to women advocates. From Regina Guha's unsuccessful attempt for women to be included in the definition of 'person' entitled to practice under the Legal Practitioner's Act, 1879 through Justice Leila Seth having being asked to handle a tea party coming up for judges to having three women judges at the same time in the Supreme Court of India some time back, we have travelled a little but there is a long way to go to achieve full measure of equality.

The representation of women advocates in the higher judiciary, senior designation and amongst arguing counsels is still negligible and shows that claims of gender equality in the legal profession are far from the truth despite the increasing number of women law graduates and women advocates at the entry level. There are few women in leadership positions; be it in firms, bar or the bench. Denial of opportunity to women advocates is systemic as the bar and the bench continue to be an old boys' club.

Women lead lawyers are few and far between. Women lawyers do not get the same number of matters nor the same remuneration as their male counterparts. Women lawyers are not engaged in big and important matters, both in terms of the stakes and the law involved. Women are not seen as leaders of the bar or as potential leaders of the bar. The bench seldom grooms women members of the bar for leadership positions; and the benchmark for women is higher. While the benchmark has been frequently lowered for men for judicial appointments and senior designations, women have to be exceptionally good to make it, particularly to senior designations.

THE NUMBERS

The statistics speak for themselves. The Supreme Court has so far not had a woman chief justice. Out of 247 judges appointed to the Supreme Court so far, only 8 have been women [3.2%]. There is only 1 woman judge at present in the Supreme Court. As on 1.8.2021, the average percentage of women judges in all the High Courts is 11.8%. Madras High Court has the highest number of women judges while five high courts do not have a single woman judge. As on 1^st August 2021, only 1 High Court out of the 25 High Courts in the country is headed by a woman Chief Justice. The following table shows the number of women judges in the Supreme Court and the High Courts as on 1^st August 2021:

Out of 416 persons designated as senior advocates by the Supreme Court till date, only 18 are women [4.05%]. Out of these 18 women, 5 are retired judges of various high courts. Out of 185 persons designated as senior advocates by the Bombay High Court till date, only 6 have been women.

While there are a growing number of young women associates, women represent only a small percentage of paid partners and a smaller percentage of equity or managing partners in law firms. Women lawyers continue to face hurdles in becoming partners in law firms and head of legal department in companies. The solicitors' club is also an old boys' club. Out of about 1000 solicitors on the roll of the Bombay Incorporated Law Society, only about 50 are women.

Similar is the situation with the various bar councils/bar associations. Bar Council of India does not have a single woman member in its committee and has never had a woman as its Chairperson. The representation of women in various state bar councils is negligible as the following table shows:[i]

The Supreme Court Bar Association has never had a woman president. In Mumbai, neither the Bombay Bar Association nor the Advocates' Association of Western India has had a woman President so far.

The first woman to be appointed law officer by the Government of India was in 2009. For the first time, Union of India has two women law officers in the Supreme Court currently. The country has not had a woman Minister of Law and Justice so far.

THE HURDLES

Inequality of opportunity for advancement, inequality of pay, lack of mentoring opportunities, lack of women role models, lack of ambition, social pressures, lack of work/life balance, sexism and sexual harassment at the work place are all problems still facing women in the practice of law, particularly the young women.

Inequality of opportunity: Lack of opportunity results in women advocates not getting a chance to perform and improve their performance in court which in turn leads to denial of further opportunity to them; it is a vicious circle.

Perceptions: Litigants and advocates on record prefer a male advocate to argue their case as the general perception is that not only are men advocates more intelligent and competent but also that they get a better hearing from the bench. All the lawyers with 'demigod' status are men.

At the root of it is women not being powerful – both at the bar and the bench. Women judges are generally considered "lightweight" by both the bar and the bench, though there have been a few notable exceptions. Even the exceptions have had to work very hard and to prove themselves, again and again. Women advocates and judges are judged more harshly than their male counterparts, by both men and women. While a male advocate whose name is rumored to be in consideration for judgeship is likely to see a spike in his briefing, a woman advocate in a similar position is not treated the same way. This is because women advocates and judges are perceived to be not only less intelligent and competent than their male counterparts, but also as not being powerful.

Even daughters, nieces and daughters-in-law of senior advocates, solicitors and partners of law firms do not get the same advantage of their status as their sons, nephews and sons in law. The "Uncle Judge Syndrome" seems to work only in favour of sons/nephews of judges and not their daughters/nieces. It only leads to the conclusion that male advocates have what can be called the "gender capital". This has led to an unhealthy trend of women advocates relying upon a "quota" for being elevated.

Bias: conscious and unconscious: There remain significant unconscious biases held by women and men that hold women back. We, both men and women, have internalised them so we do not even realise that they are biases. This is reflected in statements like "women advocates are as good as male advocates" and "the bench gives the female lawyer the same respect that it would give to a male lawyer". That the male lawyer is the standard, the yardstick which the female lawyer is required to measure upto is a bias against women which we are not even conscious of. Women advocates continue to be described and judged in terms of their physical appearance while male advocates are defined in terms of personality. Denial of merit in women advocates is such that a woman advocate's achievement is never considered to be her own but only because of some male relative of hers or her male senior.

The biases, conscious and unconscious, affect how women's performances are perceived and interpreted, which in turn affects the assignments and opportunities women get, their evaluations, their compensation, and their advancement. Independent minded and strong women face resistance and are labelled [feminist, bossy, difficult, cantankerous, aggressive]. Ambition is a bad word when it comes to women in general and women advocates are no exception. Ditto with assertiveness. Whisper campaigns and character assassinations are shriller against women advocates generally while even grave accusations against men may not be a hindrance to their success. The message is loud and clear to all women: if you want to be in the profession, play by the rules set by those in power. And they are all men.

Institutional bias: While there are an increasing number of women judges in the lower judiciary [where entry is on the basis of written examination and oral interview] and some of them make their way up to the higher judiciary, the elevation of women from the bar is still rare and difficult to achieve. Many former judges and chief justices have spoken of an institutional bias against women advocates for elevation. The opaqueness of the collegium system affects all but it hurts women more. Furthermore, the people who are in a position to recommend names for elevation are mostly men. Aspirational women are scared to take on such powerful men as it would ruin their chances of elevation or designation. This is how some of the powerful men ensure that male pedestalism and male hegemony continues. It results in many women advocates being anti-women or at best, closet feminists. There have been allegations in the past of powerful men asking for sexual favours from women advocates/ judicial officers aspiring to be elevated/promoted. It is ironical that while justice is portrayed as a woman in Roman mythology and in our courts, women find it difficult to get elevated to the bench.

Stereotypes: While it is a matter of common knowledge that women law students are doing well in law exams and moot courts, they are unable to translate their academic success into professional success. The sheer number of women in the profession has not eliminated the social stereotypes and gender bias which are rampant. Some of the stereotypes that continue to exist are that women are good only for family matters/second briefs/drafting briefs/chamber work, that women drop off after marriage and/or child birth, only those women who have a powerful male relative/senior are successful, women are not fit for counsel practice etc. Women advocates are supposed to dress and look in a certain way to be taken seriously. Women advocates are hardly ever entrusted with big commercial or constitutional matters or briefed for "ad-interims" or "admissions". Women advocates are generally considered suited for trial work. While there are an increasing number of women advocates being appointed as commissioners for recording evidence, the number of women advocates being appointed as arbitrators is small. Similarly, women advocates find more work in tribunals, arbitrations and lower courts rather than in the High Courts. Even senior women advocates often speak of being "underutilized". Excellence has no gender, but success has.

Lack of mentoring and networking opportunities: There is lack of mentoring of women advocates by both the bar and the bench. While most men advocates unabashedly "network", networking opportunities for women advocates are still lacking. Men in the profession have their football and cricket matches – even between male judges and male senior advocates. Women in the profession have none. Women advocates are not confident of applying for senior designation as they are either reluctant to or unable to lobby for the same as the general perception is that one has to lobby for it. The glass ceiling continues to exist and the profession continues to be an old boys' club. That there are several lobbies across the country based on caste, community, religion, state, region, language, jurisdiction is well known. However, each of these lobbies is by men, for men and of men. These lobbies further the interest of their members, who are all male, and work on the principle of 'you scratch my back, I scratch your back'. Appointments to the bench and senior designations are rumoured to be decided by the old boys' club in cocktail parties on rooftops and farm houses. Male advocates resist giving space to women advocates in senior designation and judgeship.

Sexism and sexual harassment: Sexism and sexual harassment at work place are brushed under the carpet as non-existent or normal. Women are even threatened that making complaint would backfire and that men would stop employing women. Feminism is a bad word for many. Women are encouraged not to try to change the status quo. Some of the High Courts, including the Bombay High Court, have not formed the Gender Sensitization and Internal Complaints Committee on the lines of the one in the Supreme Court of India. The bar associations are controlled by men which try to brush aside women's issues and problems. There is plain denial of inequality by many male and female advocates. Many male advocates resist giving space to women advocates in bar rooms including for toilets. Generations of conditioning has made men entitled to full control of public spaces, public offices and discourse.

Consequently, there is a lot of unrest and dissatisfaction amongst women advocates. Individual and collective struggles have got women advocates so far but women are now looking beyond tokenism. There is a widespread feeling of not being treated fairly. This unrest amongst women needs to be channelized for a change in the status of women advocates.

VISION AND ROADMAP TILL 2047

Women's equal participation in the profession is critical to both ensuring the fairness of the legal system for all participants and to make available different perspectives for the development of law. Diversity brings wide ranging opinions to the table. Women advocates have struggled to make a mark at an individual level. There have also been movements for betterment of women advocates collectively. What is required is a sustained movement to advance the interests of women members of the legal profession and to secure the full and equal participation of women in the legal profession in furtherance of a just society. A movement to publicize the continued under-representation of women on the bench and senior designation and to provide a collective voice for the appointment of qualified women lawyers to judicial positions and senior designation and to work against sexism and sexual harassment at the work place is required. The women's movement should also work as a social support group and sympathetic sounding board for women lawyers who share common problems and concerns and build a networking, learning and mentoring environment to help all women succeed in leadership positions. It is time for successful women to move ahead from personal success to institution building.

There is a need to create an enabling environment in which women advocates are able to grow to become natural contenders for leadership positions and not rely upon quotas or tokenism. This requires leaders of the bar and the bench to mentor promising women advocates so that they would be ready for leadership positions in next five to twenty five years.

In the first fifty years of independence, only two women judges were appointed to the Supreme Court. In the next 25 years, six women judges were appointed to the Supreme Court. By 2047, when we would celebrate our independence centenary, we should aim that women constitute 50 per cent of higher judiciary, senior designations, bar councils and bar associations. I suggest the following steps to achieve the target:

1. An annual gender audit of the Supreme Court, High Courts and subordinate judiciary and tribunals to be published on their official websites.

2.Mentorship programmes by bar Councils, bar associations, women advocates' associations and groups, to equip women advocates to take up leadership positions.

3. Continuous Legal Education Programmes for women advocates by bar councils, bar associations, women advocates' associations and groups. .

4. Appointment of more number of women as arbitrators and amicus curiae by courts.

5. The State (central and state governments and their instrumentalities) being the biggest litigator should appoint equivalent/ considerable number of women advocates as law officers, litigators on behalf of it to give women advocates a fair chance of arguing matters.

6. Names of women who are designated seniors to be highlighted in the same manner as the names of women judges in the list of judges on the website of department of justice, ministry of law and justice.

7. Compulsory gender sensitization of all advocates and judges at all levels of judiciary at regular intervals.

8. Networking opportunities for women advocates by bar councils, bar associations, women advocates' associations and groups.

Women empowerment is a constitutional mandate. It is high time that this mandate receives serious efforts in the 75th year of our independence for a just and fair society, not as a distant dream but a near reality. A movement at the bar by all, men and women advocates, is the need of the hour to ensure equality for women in the legal profession.

[i] The author and other women advocates had made a representation on 15.07.2021 to the Hon'ble Minister of Law and Justice for amendment in the advocates Act, 1971 for providing reservation for women in state bar councils and the Bar Council of India. Report by LiveLaw can be accessed here.

Views are personal.