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 a long way since India’s independence. Female advocates were provided access to the Indian courts. After independence, the Constitution of India mandated equal treatment in education and employment. But did all these affirmative measures taken by the framers of our Constitution succeed in putting women on an equal footing with men in the Legal Profession? The recent statement 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. This article maps the considerations by getting into the root cause of women’s underrepresentation in top positions in the legal profession. It also aims to explore reasons for gender disparity and conduct a comparative study of glass ceilings faced by female lawyers in different countries. It thereafter provides some suggestions and solutions to tackle the issue.
Introduction
Although women have come a long way by overcoming difficulties and obstacles and are represented in 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 recent senior designations of the Delhi High Court, only 6 women have been designated as senior advocates out of a total of 55 lawyers, and for the Apex Court, it is even more startling with only 18 women designated as senior advocates out of 488 as of July 2022. Clearly, these statistics demonstrate the disproportional advancement of men in the legal profession as compared to their female counterparts. This phenomenon of gender discrimination in higher positions in professions is known as the “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. 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 discriminatio.
Reasons for discrimination against women in the legal profession
There is rarely any profession or any stage of career where women have not faced discrimination. 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 climbing up the ladder 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 (Orme, 2001, 239). He is also not expected to evenly split up household duties with his wife. Further, men are expected and even encouraged to concentrate primarily—if not entirely—on providing for their families and advancing their careers. While women, at the same time, are exected to be multi-tasking, focusing on home and family alongside their professional life. The setup of the legal profession is such that it values and rewards only those who fit into the ‘male’ stereotype of focusing on their career 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 like taking care of family and house etc and rewards those who conform to masculine norms and responsibilities like earning money. 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 life beyond family and house. 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.
Also, there exists a prejudice in the mindset of Indian judges that women are less competent in the legal profession because of their docile nature and more suited within the four walls of their homes. 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 are 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 superior to their female counterpart.
The Glass Ceiling: A Universal Barrier in the legal realm
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 to India only. According to the 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 owing to the lack of infrastructure and societal prejudices present in both countries. On the other hand, women lawyers in the US too face inequality despite it being among one of the developed economies. Every year a great number of women take entry into law school, however, only a small percentage of them reach top positions in law firms and Courts, and not only this, their salaries continue to be lesser than that paid to men attorneys in the same 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. Statistics in the UK demonstrate that the legal profession welcomes women as barristers and gives them opportunities to progress but only so far. 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 practicing law in China than there are men. There is a sizable proportion of women working in low-status legal positions and the gender pay gap is also quite noticeable. Worryingly, Chinese female lawyers are unwilling to accept gender as a barrier to a career, however, the reports firmly established the patriarchy in the legal profession as to be a prominent impediment to their professional endeavour. 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 countries
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 through some degree of 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 centers, 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. This can be either done by bringing some changes in the existing regulations governing employment and labour. At the workplace, an arrangement can be made for child care such that women professionals would be more
focused on their work.
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 a 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 this regard, reference could be taken from Gender Sensitisation and Internal Complaints Committee (GSICC), with 6 women and 4 male legal-luminaries to better understand the impediments faced by the female-legal professionals in the legal domain. 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.
It is also 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.
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
