She in the Law

Keywords – Gender;   Profession;   Practitioner;  Struggle

Until a century ago the profession of Law in India was treated as a gendered profession, the Bar could be characterised as a Gentleman’s Club where only male members practised, professed and prospered in the art of the Law. The notion of women practising the Law, at that point of time was considered to be an alien concept which could not even be understood by the legal practitioners of that time lest it be accepted. But, these reductive and exclusive notion of law being a profession for one gender could not be sustained by trailblazers of the likes of Cornelia Sorabji. The rigours of the vocation of law have been stultified by stereotypical perceptive blockades which have been pervasive in the minds of many who are strangers to the Law. The law is hailed as a jealous mistress by any male practitioner, but seeking of the predicament of women at the Bar, the prospective victimization doubles their struggles in a profession which is often perceived to be very unforgiving.

The vital issues concerning women practitioners that have seeped through years of desensitized sexism and unrepentant prejudices that have eroded and downsized the role of women are addressed by way of this paper. This paper seeks to shed light on the seldom vocalised struggles of female practitioners of the law, which are often conveniently brushed under the carpet of “professional vices”. What the paper seeks to implore is the interaction of women with their male counter-parts in the legal fraternity, both on and off the Bench, the deep rooted sexism that plagues the profession and existing inundated biases even in the rungs of Constitutional Courts, and alas the growth that has been accomplished in this gendered profession. 

TORCH BEARERS

Often perceived as the “weaker” gender, women and their tryst in the legal field reeks of systemic struggle, class, caste and other allied socio-legal barriers, which still persist even today. While there is no linear way to understanding the underlying struggles and experiences of women, formidable challenges plague the often “gendered” profession of law practitioners, often posing barriers to their rightful claim in the legal system. The educated masses of women of India, though very few in number, in the initial years did assert their right of equality in the forensic/medical field to compete with men, but man-made law did not permit the entry of women in the profession of law. Speaking of the historical underpinnings of this arduous journey, the history of women in the legal field has often been veiled and unrecognized.

A stalwart in battling the flagrant misogyny was Cornelia Sorabji in the early 19th century, an alumna of Bombay University, and University of Oxford subsequently, was the first female in India to practice law in India and Britain. Following suit was Mithan Jamshed Lam, the first Indian woman barrister and the first woman lawyer at the Bombay High Court in the later 19th century. Practice of law for women who were predominantly “purdashanin” was not only frowned upon but was coupled with invidious experiences. In England, the Inns of Court barred them until the passing of the Sex Disqualification (Removal) Act in 1919. Nevertheless, certain women candidates, both in England and in India, made public demands for the opening up of the legal profession and voiced their claims to the same.

This bastion was sought to be breached by Regina Guha, born into a Jewish Bengali ancestry, who after completing her Master of Arts degree in 1913 and a Bachelor of Laws in 1916 from Calcutta University, submitted an application to be enrolled as an advocate of the Court of the District Judge of Alipore. In India, a London based newspaper published by the Indian News Agency, characterization of Guha’s application as “the ‘latest attempt’ was perhaps an allusion to the currents of transnational struggles by women to enter the masculinist public sphere as professional citizens on equal terms”. Unfortunately, after a bench of five heard her application in In Re: Regina Guha v. Unknown (1916), they unanimously came to the conclusion that only men are entitled to be admitted as pleaders. The court went on to opine that “the rules were framed to meet existing circumstances, that is to say, a profession of Pleaders consisting entirely of men, and cannot by implication be read as including Pleaders of the opposite sex”. Amongst many firsts, Dr Hari Sigh Gaur, moved an amendment to the resolution adopted by the Central Legislative Assembly of India to remove the sex disqualification against women. The purpose was the inclusion on the electoral roll for the elections to the Legislative Assembly, on 1st February 1922: “And the Government be further pleased to remove the sex bar held to disqualify women from enrolment as legal practitioners in the courts of this country”.

Under the imperialist regimen, the Legal Practitioners Act, 1879, women were simply not allowed to practice the law.  It’s after women like Cornelia Sorabji who marked the beginning of systemic struggles of women questioning the archetypal roles that resulted in the passing of the Legal Practitioners (Women) Act of 1923 giving women the statutory right to practice law. The Legal Practitioners (Women) Act 1923, removing the disqualification affirmed that “no woman shall, by reason only of her sex, be disqualified from being admitted or enrolled as a legal practitioner or from practising as such”.

The mid-19th century, marked a number of legal reforms, which were achieved in the women’s equality project, from reforms of married women’s property rights, to women’s right to vote in some jurisdictions. It also evidenced an increase in women’s access to higher education.

-In India, the story of this emergence is, however, fraught with the dilemma of these women fighting imperialism and demanding equality at the same time. In fact in some cases, like Cornelia Sorabji’s, analytical categories of feminism and nationalism were simply inadequate to understand the complexities of professional citizenship and colonial prejudice probing each other. This lead to many more stalwarts in the field such as Anna Chandy who was anointed as the first female judge in India in 1937, Violet Alva, the first female lawyer to appear before a High Court in 1944 and preside over a session of the Rajya Sabha in 1957. The judiciary too saw entrants to an unchartered territory by women. Sujata Vasant Manohar was the first female to be appointed as a Judge at the Bombay High Court in 1978 and was subsequently elevated to Chief Justice in 1994. Fathima Beeve was another name that has carved a niche when she was deemed the first female appointed as a justice in the Supreme Court of India in 1989.

Simultaneously, the rise of modern professions created ripples for the legal profession. This included reforms in legal education, establishment of new professional organizations and an expansion of the idea of legal work. Another aspect which needs to be understood is the access of women to legal education. The picture of entrance into formal law training demonstrates several interesting patterns. Most women gained access to legal education post-independence. It is when education has become more universally available that the entrance to the profession controlled earlier saw a spike. The time was ripe for the emergence of women lawyers as professional citizen subjects. The expansion in entry of women in legal education in many countries has come at the expense of the working class. With democratisation of educational institutions, it began to open doors to working class students, law students remain, in most countries, mostly middle or upper class and recent female admittees mostly remain disproportionately middle or upper class, reflecting old patterns in the recruitment to the legal profession.

The battle for shattering the “glass ceiling” in domains of male dominance and hegemony, though to a large extent stand challenged, yet continue to persist even today.  As the history concerning the role of women getting access to practice in Courts has been elucidated substantially, it would be beneficial to evaluate and assess as to where do women stand today in the modernized legal circles- including women lawyers employed in Law Firms and Trans-national Corporations. In an age of not just rapid information but also of breathtaking growth in the world, the processes of transformative globalization and intellectual liberalization is proving to be a boon in disguise for women across the world. Just as the early 20th Century in Europe and America saw the induction of women as workers in factories, shops, restaurants and public servants; this influx was propelled by the men being recruited by the Army to fight the war, the same pattern was fortuitously witnessed in the post privatization era in India- where an upward trend was observed in women’s employability across all fields, jobs and professions. Precisely, this reason, coupled with the almost simultaneous establishment of the veritable National Law Universities in India, that an increasing number of women started practicing the law as litigators, while corporations in the private sector saw an astronomical rise of lady lawyers on their legal teams and the same was for the Law Firms. To this day, the induction rate of young lady law graduates in law firms is higher than in litigation, the reason for it is a no brainer- immediate remunerative promises and a secure work environment. This is not to discount that Law Firms also ply out of a sexist culture which is ostensibly microscopic when compared to hardcore litigation in Courts. Although it is safe to say that the environment provided in Corporates is more conducive in as much as the inductees are far more competent and their level of meritocracy is unassailable. The increasing incentivization by law firms, emanating from competitiveness with other law firms, has truly attracted the best minds to work for them. Although when it comes to Litigation and counsel practice in courts, there is a stark difference in the two. As we stand in the present privatized neo-liberal age where materialism and consumerism are a record high, young law graduates- both male and female (majorly) prefer a desk job at a renowned law firm with fixed timings as opposed to the haphazard life that litigation is infamous for imposing on new entrants. Let us look at the possible conditions, which may be at the outset considered disadvantageous for bright & fresh lady graduates from beginning a career in litigation, they can be categorized as-

  1. Financial Constraints – Ever since the onset of National Law Schools across the country, the nature of legal education being imparted has changed- the curriculum has become streamlined and the process of admissions is transparent. These two reasons have bolstered the quality and diversity of students. Many aspirants join such premier institutes with little financial assistance and with little or no legal background, such modest beginnings encourage them to work harder and ward off the financial dependency from their families. This in turn results in her securing a job in a Tier 1 Law Firm with higher monetary considerations so as to support herself and her family. It is to be fair and conceding to admit that the monthly remuneration the chamber of a practicing advocate offers to a young aspirational graduate is only a meagre 20 -25% of what a Tier 1 law firm offers as monthly salaries. Even when the salaries offered by a Tier 2 or Tier 3 Law Firm is compared to what a well standing practicing advocate’s chamber junior earns, the difference is palpable. All those who choose law as their vocation, do not necessarily belong to families that can support them through the initial struggles in litigation.
  1. Unencouraging Attitudes – A vital impediment for the young girls who join counsel practice through the chambers of a well- known practitioner with reasonable standing is that the attitudes of their seniors are skewed with a patriarchal tinge. It can vary from a simple unseemly remark such as “It is fine, I didn’t expect you to understand such a difficult matter” or it can be as crude as “Just forget it, I never believed you were upto the task”. These behaviorisms many a time are not clearly visible as they emanate from deep rooted prejudices which are often cloaked in an unassuming veil of ‘protectiveness’. Young ladies are oft advised by their seniors (generally male) to limit their practice only to certain fields of law which may be traditionally acceptable and ensure a lucrative future. Accomplished women lawyers, who are competent, are usually discouraged from solely handling matters which may be complicated and are advised by their peers to not ‘risk it’ and engage a ‘field expert’ who inevitably is a male colleague/senior. 
  1. Unequal Classification- There are many ways in which young women lawyers face prejudices in a seamless guise. Women lawyers are treated with a tainted vision by colleagues, seniors and even clients. Young women lawyers associated with the chamber/office of a senior are often told to not stay back in office beyond a particular time in the evening, which perhaps maybe justifiable taking into account the poor condition regarding safety of women across our country. Young lady lawyers are given less challenging work by their seniors which does not fit their competency and are against their choice and are instead asked to undertake other peripheral duties which may not count as essential attributes for making a holistic lawyer. This is closely reminiscent of what Justice Leila Seth– the first woman to be designated a Senior Advocate by the Supreme Court and the first Chief Justice of a High Court, narrated in her Autobiography “On Balance”, she said that on her appointment as a Judge of the Delhi High Court, a few other Judges in all seriousness remarked that now that Justice Leila Seth was one of their own, they (a group of male judges) would not have to worry about the food and beverage arrangements at any future function organized by the Judges. Previously many senior lawyers would prefer to be briefed in a matter by only male junior advocates, but now that mentality seems to be changing for the better. However, even today the capabilities of the best of young women lawyers are underscored and under-assumed when compared to their male counterparts.
  1. Infrastructural Deprivation- One major aspect that deters talented women to enter the Courts besides sexism, sexual harassment, unwarranted lewd slangs and general apathy is the low-quality infrastructural facilities is that the Courts offer. If one looks at the condition of the district courts, not just in New Delhi, but across India, one finds that the women and men practicing there, each deserve a special medal of honour for having to work and deliver from the dingiest of conditions. The hygiene followed in the lower courts and other forums commensurate is abysmal- there is a lack of clean restrooms, lack of potable water, regular power outages, unsanitary surroundings and the outer premises of these Courts are inhabited by domestic farm animals. This aspect overrides and prevails over all other aspects, even monetary aspects, when a bright young female law graduate considers a career as a litigator.
  1. Unique Unregulated Work Atmosphere – The work culture & ethos followed in Law Firms versus Courts are very different. At Law firms, the distribution of work seems to be more transparent; workhours are usually fixed and for every extra hour of work one puts in, she is recompensed; there is a Human Resource Team as a watchdog that caters to her essential needs and attempts to ensure a healthy work-life balance; there also exists a system of evaluating her working style through comprehensive monthly appraisals. Whereas in the practice of litigation the parameters are totally unclear as to what would constitute being a good junior to one’s senior. The lines often get blurred here as there is no sure policy as fixity of work hours or surety of concrete work or no HR team to undertake appraisals. This blurring of the lines owes its existence to the whims and fancies of her boss who may well think that her junior is good or bad based not on punctuality or work delivery or work ethic but unfortunately on one’s own subjective perceptions without an objective set of guidelines to assess the quality of work or performance of duty.
  1. Court-Room Sexism- This maybe applicable even to the experienced women who are practicing in Courts and even to lady senior advocates who are often rebuffed, either by the Bench or by their opponent while they are presenting arguments in Court. It is rather unfortunate that when a women lawyer makes her arguments vociferously she is branded with a band of unpleasant adjectives, while if a man argues in that fashion he is slathered with praise.  There are replete examples of High Courts in the country when lady lawyers during the course of their arguments are often derailed by the opposite party by interruption citing frivolous objections. On one such occasion a saree-clad lady lawyer practicing in the Karnataka High Court was told by the Judge why she wasn’t wearing a collar, when the advocate informed the court that the Bar Council Rules and the Advocates Act did not have a specific rule to wear a collar, the presiding Judge then made, rather loudly, a crass remark to this brother judge about women lawyers ‘exposing skin’. Most times, these remarks are directed towards lady lawyers and sometimes it is even directed at her client, this can be recounted by recent events when a Judge of the Karnataka High Court recorded observations on the character of an alleged rape victim, labelling the victim as not projecting Indian moral values for sleeping next to her ravisher after being sexually assaulted. 
  1. Archaic Perceptions- The two-century old mold of thought that women are primary caregivers and homemakers has not quite been unclutched and recycled by society in the present day as it should have. There are stigmatized notions of viewing women even in ultra-modern, urban, technology driven, fast moving and globally rising India. One cannot discount that our society’s collective mentality is interspersed with our day to day happenings in the Courts, many from the legal fraternity who are actively practicing in Courts foster age old conceptions. It is popularly believed amongst lawyers that an intelligent young woman if given the chance to deliver, does perform well, she should remain content with a small victory and not trudge her intellectual boundaries further because ultimately she will not be actively litigating after entering into matrimony and would be occupied with traditional chores. By harboring such narrow mentalities towards women and assuming the role of a foreteller without ascertaining much about her future course of action from her, the lawyers betray not just the profession & conscience but they also betray the Constitutional values which they so effortlessly cite and argue.

TRAIL BLAZERS

It would be important to note what the Supreme Court had observed implicitly on gender stereotypes when it dealt with the challenge to Section 497 of the Indian Penal Code. It held as follows:

Our Constitution is a repository of rights, a celebration of myriad freedoms and liberties. It envisages the creation of a society where the ideals of equality, dignity and freedom triumph over entrenched prejudices and injustices. The creation of a just, egalitarian society is a process. It often involves the questioning and obliteration of parochial social mores which are antithetical to constitutional morality. The case at hand enjoins this constitutional court to make an enquiry into the insidious permeation of patriarchal values into the legal order and its role in perpetuating gender injustices… Law and society are intrinsically connected and oppressive social values often find expression in legal structures. The law influences society as well but societal values are slow to adapt to leads shown by the law….. Over the years, legal reform has had a significant role in altering the position of women in societal orderings.

However, in some cases, the law operates to perpetuate an unequal world for women. Thus, depending on the manner in which it is used, law can act as an agent of social change as well as social stagnation. Scholar Patricia Williams, who has done considerable work on the critical race theory, is sanguine about the possibility of law engendering progressive social transformation:

‘It is my deep belief that theoretical legal understanding and social transformation need not be oxymoronic’

Successful women in the legal profession have had to struggle enormously to reach the position of pelf and power which they are occupying or had occupied. The enormity of this struggle is closely linked to the kind of pre-existing conditions- physical and social, when now successful women started out from scratch. From fomenting sexist phrases to cracking innuendos to fervent misogynistic behavior- the generation of thirty-forty years ago has suffered enough and more to secure a sensitized environment which our generation and the so called ‘millennial’ generation of today have benefitted from and seek to take it to the next level  simply being one where women cannot be satisfied with equivalences unless there is pure equality.

Realistically, women have not had a glorious run as their male counterparts due to belated entry into the profession. The Supreme Court of India opened its grand doors for the first time to a woman judge, Justice Fathima Beevi in the year 1989. Chief Justice Leila Seth was the first woman to hold the dual distinction being the first woman in Independent India to be designated senior counsel by the Supreme Court in 1977 and the first Chief Justice of a High Court in 1991. In the contemporary situation, Justice Indu Malhotra holds the coveted honor of being the first woman to have been directly appointed from the Bar to the Supreme Court. And till this date, although our country has seen a woman Prime Minister, we are yet to achieve the same feat in the Judiciary in as much as seeing a lady Chief Justice of India!

At present the ratio of male to female judges in the Higher Judiciary is alarmingly low. The Supreme Court after the departure of Justice R. Banumathi consists of 2 female Judges and 29 Male Judges, the Madras High Court only has 9 lady judges amongst a total of 54 Judges, the Calcutta High Court presently couches only 5 lady judges compared to the total strength of 37 Judges, the Bombay High Court, which is regarded as the most premier High Court houses only 8 lady Judges against a total of 64 Judges! The Allahabad High Court which is perhaps the largest High Court in India accommodates a measly number of 5 lady judges amidst a swarm of 96 Honorable Judges. The Karnataka High Court has 5 women judges serving amongst a total of 46 Judges. The Kerala High Court co-incidentally has the identical number of women judges and identical strength in the number of Judges as the Calcutta High Court. The High Court of the second most populous state of India, Rajasthan has only 2 female judges compared to total strength of 24 Judges. The Gauhati High Court, which engulfs jurisdiction for four other states has just 1 lady Judge to the total strength of 21 Judges. The Gujarat High Court consists of 3 woman judges out of 27 Judges. The real sense of disappointment surfaces when one sees the representation of women judges on the bench in the Patna High Court- out of the 24 Judges, none are women! This raises the important question whether there is a dearth of talented & experienced women in the Bar of Patna High Court or in the Bihar Lower Judiciary.

It is almost ironic that the designation of lady Senior Counsels in the High Courts is much like the elevation of lady Judges to the High Courts. As far as the representation of women as Senior Counsels is concerned, it has been low and less discussed, there are only a handful of women senior designates. The Supreme Court till this date has designated 17 senior counsels, opposed to the 403 designations of men by the Court. The High Courts have lagged much further in recognizing the emerging talent of women in the field of law. However, something more startling is that recently in February 2020, the Bombay High Court designated 22 advocates as senior advocates, no woman lawyer was designated. Whereas, the Karnataka High Court in February 2020; exactly a week before the Bombay High Court confirmed the validity of its 18 senior designations in a judgement, of  the 18 senior advocates three were women.

These figures as mentioned above speak for themselves and leave much and more to be desired to have an adequate representation of female judges and senior lawyers on the bench and in the senior bar.

CONCLUSION

While parting ways with this paper, it would be hasty not to point out the ways in which women practitioners have and are contributing to the growth and revolutionization of the law. It would be negligent to not indicate the direction in which law practice – in Courts and otherwise is headed towards in terms of gender inclusivity. It can be easily concluded that the best years for She in the Law are yet to begin and are not far ahead, so much has been achieved  in the last 120 odd years by women not just in the traditional practice of law, but She has found a comfortable nest to productively contribute  in the world of Corporations, whose turnovers are greater than the Gross Domestic Product of smaller countries; She has found a competitive ground to prove all her legal might in the shark minded golden circle Law firms;  She has found solace and intellectual pride in the world of Legal Academia. What has been observed on the personal account of the author is that women, especially those who are practicing in Courts, are gaining their feet as arguing counsels- and effective arguments without strenuous pressure on one’s vocal chords is becoming the norm, one hopes it becomes the order of the day. The Tomorrow holds great promise and vision for women in the profession if today’s professionals outgrow their narrowly confined stereotypes and evolve with the dynamic change in our times. A pithily made observation about changing of mindsets made by the Supreme Court in Babita Punya’s caseis crucial to the point being adverted to, it states as follows:

Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court….. The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women…… These assertions which we have extracted bodily from the written submissions which have been tendered before this Court only go to emphasise the need for change in mindsets to bring about true equality in the Army. If society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere – it is unlikely that there would be a change in mindsets. 

More significantly, one point that needs grave emphasis is that each woman, be it Advocate/Judge/Solicitor/Partner/Mediator/Arbitrator/Academician, should encourage and embolden other women (who need not necessarily belong to a privileged class)- to impart skills, qualities & knowledge that makes them capable to take calculated risks and be Independently professional, which is turn makes them capable to be role models further inspire another generation. That impartation of motivation, skill and discipline perhaps would be the greatest tribute a lady lawyer can pay to our profession to make it a level playing field.

MAHALAKSHMI PAVANI

SENIOR ADVOCATE SC

REFERENCES

  1. Jhuma Sen, The Indian Women Who Fought Their Way Into the Legal Profession, available at https://thewire.in/law/women-lawyers-history-india
  2. 35 Ind Cas 925
  3. Saurabh Kumar 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
  4. CAN THE WOMEN LAW GET JUSTICE? Available at: https://www.dawn.com/news/1437270
  1. Joseph Shine V. Union of India ; (2019) 3 SCC 39 ; Para(s) 111,112 &113; 
  2. Skewed Corridors of Justice: Women Continue to Face Sexism in Courts. Available at:  https://thewire.in/women/sexism-courts-women-lawyers-judges
  3. Bombay High Court designates 22 lawyers as Senior Advocates. Available at: https://www.barandbench.com/news/bombay-high-court-designates-9-lawyers-as-senior-advocates
  4. Karnataka HC upholds Senior Designation. Available at: https://www.barandbench.com/news/litigation/karnataka-hc-upholds-senior-designations-of-18-advocates
  5. Secretary Ministry of Defence V. Babita Puniya; 2020 SCC Online SC 200; Para(s) 68, 69 & 70.

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