Abstract
Beginning with the acceptance of Cornelia Sorabji into the Allahabad High court in 1921 to rehearse as an advocate, the Indian legal system has come up a long way since India’s independence. Officially, after the Legal Practitioners’ (Women) Act of 1923 was passed, the restrictions on Indian women practising law were abolished. At least on paper, allowing female advocates access to the Indian courts. Further, the Indian constitution of independent India has given Indian women the right to equality and the right against any discrimination on the basis of gender from procuring any education or practising any profession of their choice. But were all these affirmative measures taken by the drafters of our constitution succeed in putting women on an equal footing with men in Indian courts? Did the equality principle apply to the very people who claimed to be wielders of it? The recent statement made by “Justice Hima Kohli” on the skewed representation of women in the Indian courts provides a completely different picture of the principle of equality propounded by the framers of our constitution, at a very place, where it was expected to be exercised by the citizenry. This article maps the considerations by getting into the root cause of women’s underrepresentation in top positions in the legal profession, exploring reasons for gender disparity, conducting a comparative study of glass ceilings faced by female lawyers in different countries, and ultimately proposing suggestions and solutions to tackle the issue.
Introduction
Although women have come along a great way by overcoming difficulties and obstacles and represent almost all professions, they have not made significant leaps in the legal profession. According to Law Minster Kiren Rijiju, women constitute a mere 7.2% of the higher judiciary. If we consider the senior designations of the Supreme Court, there are only 13 women who could make it to the upper echelon, and for Delhi High Court, it is even more startling with only 9 women out of 237 senior designations. Clearly, these statistics demonstrate that the representation of women in the legal profession is disproportional to the number of their male counterparts. This phenomenon of gender discrimination in professions is called as “Glass ceiling”. It represents a blatant or subtle form of discrimination based on sex which is generally unwritten and unspoken but deeply inherent and pervasive. Its existence is reflected in the above-given statistics which gives a reality check of women’s underrepresentation in important positions such as partners in law firms, judges, or members of tribunals and commissions. Numerous theories have been propounded to explain the glass ceiling in the legal profession such as the shortcomings of women themselves, or the institutional bias formed on the basis of the abilities and qualifications of female candidates for promotion to senior-level positions rather than the candidate’s qualifications and career choices. So, by taking into account numerous exhaustive research articles and meagre surveys on gender discrimination at the highest levels of the legal profession. This article aims at discovering the reasons for the Glass ceiling in the legal profession, comparing the barriers faced by women across the countries, and suggesting solutions to tackle this phenomenon of sex discrimination.
The Glass Ceiling In The Legal Profession: Why Does It Exist?
There is rarely any profession left where women have not faced discrimination—be it at any stage of their careers. From entry into the profession to acquiring important positions—as they progress in their respective careers, disparities based on sex increase. When they pass these obstacles, they eventually face the ‘glass ceiling’, which can be said to be invisible but a real barrier that stops them from reaching the apex point in their profession. This glass ceiling prevents a large number of female lawyers from attaining important positions.
The male-oriented one-dimensional cultural paradigm, which views men as the primary breadwinners and women as homemakers, can be said to be the underlying cause of the glass ceiling in the legal profession. According to a popular belief in Indian society, a husband’s work is more significant than a wife’s and should take precedence over the latter. He is also not expected to evenly split up household duties with his wife. Further, men are expected and even encouraged to be one-dimensional, concentrating primarily—if not entirely—on providing for their families and advancing their careers. While women, at the same time, are expected to be multi-dimensional, focusing on home and family beside their professional life. The setup of the legal profession is such that it values and rewards only those who play male roles (who focus on their careers in exclusion of other interests). Thus, female lawyers are largely excluded from such opportunities because they are unable to concentrate on their professional life only.
Furthermore, the legal profession also upholds gender roles established by society. The field discriminates against those with feminine norms and responsibilities and rewards those who conform to masculine norms and responsibilities. To live up to these so-called professional standards established by male chauvinists for heading pillars of justice, Women are expected to severely restrict their extracurricular activities. Male attorneys often find it easier and more convenient to sacrifice other aspects of their lives in order to advance in their careers and hold influential positions. However, due to pressure from their families, female attorneys are unable to advance in their professional life and must instead restrict the number of hours and generally forego potential leaps in their profession due to marital obligations. A finding suggests that most of the women lawyers in the legal profession are either divorced or unmarried because lots of women face severe pressure from family to get married at an early age or to bear responsibilities of family and child and thus opt out of their profession. Further, by the time they professionally settled themselves, there were considered too old to marry as per societal standards. Thus, a growing number of women legal professionals are ascending in their careers only when they are either unmarried or childless.
Also, it is a conditional mindset of most Indian judges that women are less competent in the legal profession because of their docile nature and more desirable within the four walls of their home. Further, derogatory remarks made by not only male advocates but also by some respectable judges also add up to their struggle significantly and contribute to the subordination of women in the legal profession.
In conclusion, all these factors in addition to other societal biases against women culminate into gender disparity in the legal profession and a semblance of this discrimination is observed at higher levels of the Indian court—Only 12% of the Supreme Court’s judges are women, and the situation is even worse for high courts. Thus, it is clear that discrimination encountered by women in the Indian legal system stems from the patriarchal nature of our society, in which male advocates are regarded as more significant and superior to their female counterparts.
A Comparative Study Of Glass Ceilings In Different Countries
In a session organized by Delhi Women Lawyers Forum, it was pointed out that though female professionals in India are lagging behind in comparison to other countries by a couple of decades, the problem of women professionals is not limited only to India. However, still, there is a noticeable distinction between the working environments in India and first-world nations, and it is surprising to note what makes the two differ. According to a study, one of the key reasons for the lack of representation in India is that women put in a lot of effort but fail to mentally prepare themselves for the upper strata as senior counsel, judges, or partners in law firms. This is further bolstered by gender stereotypes that permeate Indian society, which firmly instil in females-professionals the idea that women are inferior to their male counterparts.
Comparative Study of Germany and the US
According to a study conducted in Germany and the USA, the work environment in Germany makes it more challenging for female attorneys to have a family and a successful career than it is in the USA. This particular discrepancy can be attributed to the lack of infrastructure and societal prejudices which makes it a lot harder for women to align marital relationship and a career in Germany. Nevertheless, women lawyers in the US too face inequality despite it being among one of the developed economies. Every year a large number of women take entry into law school, however, only a small percentage of them reach top positions in law firms and Courts, besides being paid lower as compared to men attorneys in comparable positions. According to Glass Ceiling Report by Law360, women’s participation in the legal profession in the US has observed an increment. However, men still make up more than 65% of attorneys in the US and nearly 70% of non-equity partners and over 80% of equity partners are men.
Story Of The UK- A Less Positive Picture
Statistics in the UK demonstrate that the Legal profession welcomes women as barristers and gives them opportunities to progress but only so far. According to a survey conducted in 2017 by a firm, the proportion of female partners in the top 10 law firms is 18% and in the next 15 firms, it’s only 19%. It is even worse among barristers and judges. There are only 254 female barristers as compared to 1409 male barristers among top barristers and as for judges, only 22% of judges are women in the High Court and 24% in the Court of Appeal. This languishing picture of female representation is attributed to a massive drop-out after the appointment at the Bar, leading to the disparity even at the senior levels. The reasons behind this massive drop-out are not that hard to see. The combination of societal and financial pressure leaves no choice to female barristers other than to give up their hard-won and much-cherished career at the Bar and settle for less challenging and less paid work.
China—Spearheading Gender Discrimination In The Legal Profession
In China, there is a significant gender gap in the legal profession. The bar has only recently begun to feminize, so there are significantly fewer women practising law in China than there are men. For a long time, China’s law schools have graduated roughly the same number of students, but women still seem to be underrepresented among lawyers, judges, and law school faculty members. In China, there is a power disparity between the sexes as well. While women are relegated to the background and given ancillary tasks, men enjoy a more authoritative position. In China, there is a sizable proportion of women working in low-status legal positions. In China’s legal profession, the gender pay gap is also quite noticeable. Worryingly, Chinese female lawyers are unwilling to accept their gender as a barrier to a career because they have been so deeply ingrained in patriarchy. As a result, the situation there is practically worse than in India, where women do recognize that they are experiencing discrimination due to their gender and are speaking out against it. These statistics show the existence of a glass ceiling even in the most developed country.
Suggestions And Solutions—A Roadmap Ahead
The issues related to gender discrimination in the legal profession are varied, complex, and deeply entrenched in the very fabric of our society. So, to address these issues, we must deal with them at different levels. Although, Women’s entry into the legal profession has been ensured to some degree by legal changes mandating equal treatment, however, no similar changes have been introduced to incentivize men to get involved in the unpaid work of the home. There is a requirement of restructuring not only of the workplace but also the home to eliminate the divisions between men and women.
Another immediate solution to gender discrimination could be family-oriented policies to support women advocates in India, such as paternal leaves, child care centres, and flexible working hours, which are of utmost importance to women advocates and would not put them in the position of sacrificing personal life at the expense of professional life.
In the long term, there is a need to change the attitude of society as a whole—the gender roles attributed to women must be abandoned. Society and advocates must be sensitized and educated and the limelight must be on the talent of the female advocates rather than their gender-specific roles in society. Further, there must be institutional cleansing of gender biases condition by various stereotypes prevalent in our society. And this cleansing must be backed by policies committed to making women par with men—policies must advocate objective evaluation of women and must be promoted according to their worth, not their sex. On the same lines, some law firms have even proposed and funded “diversity training” efforts aimed at teaching employees about the inherent key differences between men and women and instilling the attitudes to appreciate them rather than using them to subordinate or discriminate against women.
With regard to the Bar and Judiciary at the more structural level, there need to be specific institutional changes in order to address the issues of gender disparity. The justice-dispensing institutions must establish a standing committee to address the grievances of women that ensures confidentiality—keeping in view, the patriarchal nature of our society. In addition to this, the courts and bars must associate themselves outside the four walls of courts to address systematic discrimination faced by women and sensitize the male members of the judiciary and bar.
Furthermore, it is necessary that the women involved in the legal profession must come together to support each other. Women in the legal profession must band together to develop an organization that can investigate issues of gender imbalance in the workplace without making any women feel alone in their struggle against structural and cultural evil. It is also critical that such associations and organizations be managed by capable leaders in order to avoid caste or class prejudice in situations of gender disparity experienced by women in the legal profession.
Conclusion
The solutions and suggestions may appear simple at first glance because the true cause of gender discrimination in the Indian legal system lies in the mindset of the male legal professionals, which is conditioned by patriarchal notions in general and their male chauvinism in particular and which further shapes the structure. As a result, addressing the fundamental cause of gender imbalance requires a comprehensive but simple strategy, keeping in view, both structural as well as societal aspects to tackle the gender disparity in the Indian legal system.
This article is a part of DNLU-SLJ (Online) series, for submissions click here.
Students at National Law Institute University (NLIU), Bhopal