By Sanket Khandelwal and Dheeraj Diwakar
“The glass ceiling implies the existence of an impermeable barrier that blocks the vertical mobility of women. Below this barrier, women are able to get promoted, beyond this they are not. This ubiquitous glass ceiling obstructs women across jurisdictions and subjects them to unequal treatment all over the world.”
: Justice Gita Mittal
Introduction
The Indian legal profession is one of the largest in the world, accounting for more than 12 Lakh registered Advocates and close to 1000 law schools. During its formative years, the legal profession was largely a hegemony of men. Much like in any other domain of society, Indian women were considered interlopers in the field of law too. It was only after the enactment of the Legal Practitioners (Women) Act 1923, that women were finally permitted to become a part of the legal fraternity. Although the act stands repealed with the enactment of the Advocates Act 1961, the representation of women in conventional litigation continues to be dismal till date.
The reason for the same isn’t hard to observe. Women lawyers continue to face age-old problems that have plagued the Indian legal profession since time immemorial. Rampant sexism, lack of adequate sanitation facilities for women, and other gender-specific problems have hardly ever been the focus of attention of the Bar Council of India, the statutory body bestowed with the duty of regulating Indian legal practice. The body has often been criticized for being a male-dominated space with little support for women who wish to rise up the ranks. The members of the Council are elected amongst the lawyers and represent the entire legal profession in practice. Currently, female representation in the Bar Council of India is non-existent. The figures don’t prove to be encouraging in the case of State Bar Councils either; women making up only 2% of the elected representatives in State Bar Councils all across the country. It is because of this low headcount of women advocates, in positions of power, that even the most critical problems faced by women advocates go unaddressed by the male-dominated spheres that Bar Council and State Bar Councils have grown to become. Recently, this proposition got wings when 300 women lawyers wrote to Union Law Minister Kiran Rijiju mentioning an urgent need for reservation for women advocates in the Bar Council of India and State Bar Councils.
This piece of writing is an attempt to draw a parallel between the underrepresentation of women in the Bar Council of India and the State Bar Councils, and the perpetual string of problems that women advocates continue to face in the 21st century.
Dingy representation of women in the Bar
Till late 20th century, Indian women found it hard to make a place for themselves in the legal fraternity, as apart from being considered an outsider they were subjected to social severities at various levels of the profession. The status quo started to change by end of the 20th century, with the coming up of new-age law schools. There has been a gradual increase in the number of woman law graduates ever since courtesy of the strong commitment behind the “5-year law course” system to improve the existing legal architecture and ushering in inclusivity in the profession. This remarkable development has truly manifested itself in the case of the lower judiciary. Women comprise a substantial proportion of the judges in the lower judiciary, particularly in the case of entry-level posts. The Union Law Ministry does not maintain any such record for our reference. But, independent research carried out by Vidhi Centre for legal policy has given us an insight into the composition of women judges in the lower judiciary. Accordingly, 36.45% of judges and magistrates admitted through an entrance examination, between 2007 and 2017 in 17 states, were women. Additionally, women in Goa and Meghalaya make up 65.9% and 73.80% of the entire strength of judges respectively in the lower judiciary. Such high numbers are replicated in the case of law firms and chartered accountancy firms too. Female law graduates, in search of conducive work environment and better pay, have started to venture into corporate law firms in unprecedented numbers, and the same has resulted in the standardization of open work environments in the said organizations.
Unfortunately, when it comes to the bar, female law graduates try to steer clear. The number of female law graduates opting for traditional litigation is much lower than what one would expect following the heartening figures in the case of law firms and lower judiciary. According to National Judicial Data Grid, more than 3 crore cases are pending in District and Taluka courts out of which less than 30 lakh are filed by female litigants. The condition is even more critical in High Courts with more than 42 lakh pending cases and less than 80 thousand filed by women advocates. These dismal figures are in the face of the ever-increasing number of female law graduates, judges, and law firm associates.
Persistence of rudimentary problems
Women in law continue to face the same primordial problems as they did a century ago. In addition to long-standing perceptions and stereotypes, the opaqueness of the system fuels institutional bias against women. Their chances of being elevated to higher echelons are heavily dependent upon people already in power, which in most cases are men. This cycle keeps the male hegemony in place, and further adds to the inefficiency of the current framework. The grim picture isn’t helped by the infrastructural problems either. The atmosphere and infrastructure of lower courts is well short of encouraging, with a substantial proportion of lower courts even lacking proper washroom for females
Instances of women advocates facing discrimination even inside the courtroom aren’t a rarity. With regard to the same, Indira Jaising remarks, “Even after I have made it, my word is often treated as less valuable than the word of a male lawyer.” This attitude towards female advocates doesn’t come in as a surprise, as even the Hon’ble Supreme Court, in Aparna Bhat vs The State Of Madhya Pradesh, remarked that the Bar was in desperate need of gender sensitization. Adding upon the same the Court observed, “Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B. program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All-India Bar Examination.” Thus, the parochial mindset of the Bar and the urgent need for overhauling the same has been acknowledged even by the Apex Court of the nation.
The persistence of such retrogressive problems can be accredited to an array of reasons. But, the lack of voices in favor of women, in State Bar Councils across the nation, is patently among the most critical ones. Those in power are guided by the same anachronistic ideals of the profession and resultingly refuse to even start with preliminary deliberation over any of the problems discussed above. The outlook of the fraternity has to necessarily undergo a major overhaul to bring about noteworthy changes in the legal profession. The collective mindset of present-day litigators is hardly any different from the ones of the preceding century, as can reasonably be inferred from the recent case of Darvesh Yadav, a women advocate who was shot dead by one of her male colleagues shortly after she became the first woman president of the UP Bar Council.
Need of reservation for women in the Bar Council of India and the State Bar Councils
Section 7 (1) (d) of the Advocates Act, 1961 says that safeguarding the rights, privileges, and interests of advocates is one of the functions of the Bar Council. However, this concept of safeguarding fails to externalize itself equitably. The Bar Councils continue to assess and regulate legal practice according to the parameters in use a century ago when inclusivity in the profession was non-existent. Today, when the legal profession has finally opened its gates for women, the said parameters and the collective mindset of the fraternity continue to be major barriers in the way of women-centric reforms. There’s a desperate need of breaking the male hegemony in Bar Councils across the country. Reserving seats for women in the Bar Councils will provide them with the necessary representation to voice their concerns among those in power, and the same will in turn act as a steppingstone for sensitization of the Bar.
Interestingly, the representation of women in the lower judiciary is far better than that in the higher judiciary. It is important to note that various states provide reservations to female candidates in the lower judiciary. The upward trajectory of women’s representation in the lower judiciary is much talked about and has resulted in women considering the lower judiciary as their first-choice workplace. The fact that reservation is one of the primary reasons for higher women representation in the lower judiciary, and the same resulting in a superior work environment for women, cannot be brushed aside. Reservation for women in Bar Councils and State Bar Councils has the potential of bringing about similar changes to the Bar. Additionally, participation of women in the Higher Judicial Examination is critically low due to its eligibility requirements; it is necessary to be enrolled in Bar for at least seven years to be eligible for the exam. Most of the female litigants find it hard to survive in the bar for that long due to the countless hassles they are subjected to in their early years, and consequently, fail to meet the eligibility requirements of the exam. Representation in Bar Councils will firstly help in addressing the long-standing women-centric problems in the profession, the same would result in a better work environment for women advocates who would then be able to continue with the profession for a longer period of time, and as a result would start becoming eligible for Higher Judicial Examination in comparatively higher numbers. Thus, reservation for women in Bar Councils will also be an effective tool for addressing the much talked about the problem of dearth of women judges in higher echelons of the judicial system.
(Sanket and Dheeraj are members of our Editorial Team. They may be contacted via mail at sanket.khandelwal913@gmail.com and/or diwakardheeraj5@gmail.com)
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