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Women Leaving Law: What Is The Way Ahead?

Aruna A
22 May 2022 4:55 AM GMT
Women Leaving Law: What Is The Way Ahead?
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There was a time when women were not considered competent or fit to become a lawyer. Three courageous women - Regina Guha, Subhansu Bala Hazra, and Cornelia Sorabji approached courts for recognising the right of women to practice as a lawyer.

In 1916, Regina Guha filed an application to practice as a pleader in the District of 24-Perganas. Her application was forwarded to the Calcutta High Court by the District Judge. She also moved the High Court, praying to allow her to practice as a pleader "in view of the fact that she is a person duly qualified" to enroll as a pleader. A five judges bench was constituted to consider the issue and her plea was rejected by the court.[1] In the year 1921, Subhansu Bala Hazra's demand to enroll as a pleader in the District Court of Patna was considered by the Patna High Court. By that time, the Parliament of United Kingdom had enacted the Sex Disqualification Removal Act, 1919 entitling women "to be admitted and enrolled as a solicitor."[2]

Meanwhile the English Committee of the Allahabad High Court permitted Cornelia Sorabji to enroll as a Vakil under Rule 15 of Chapter XV of the Allahabad High Court Rules, and she went on to become the first woman lawyer in India. Though the Patna High Court, was of the opinion that there are grounds to change the then existing law of not allowing women to to enroll as lawyer, the court dismissed the plea of Subhansu Bala Hazra.[3] But the entire episodes and the efforts of these women paved way for a social movement which resulted in promulgation of Legal Practitioners (Women) Act, 1923. S. 3 of the Act declared 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; and any such rule or order which is repugnant to the provisions of this Act shall, to the extent of such repugnancy, be void."

Thus, there was a time when the legal profession was considered only as a gentlemen's profession. It is high time one asks whether a man who considers women as inferior to him can be considered as a "gentleman". Women had to fight a hard and arduous battle for obtaining recognition to her right to become a practising lawyer. A century after the promulgation of the 1923 Act, what is the position of women in law in India?

The statistics are truly disappointing and irksome. As per reports, there are 1.7 million advocates enrolled with the Bar Council but only 15% of them are women.[4] It is also reported that the number of male and female students who enroll to study law have now become almost equal.[5] However, the trend of women attrition from the legal profession continues. Data on the number of women appointed to the higher judiciary of the nation further evidences the pathetic nature of representation of women in the legal field.

Despite the abundance of discussions regarding inadequate representation of women in the higher judiciary, the larger issue of drop out of women from the profession and its causes have largely been ignored and not been sufficiently deliberated upon. Data glaringly shows women are highly outnumbered in the legal profession.

This gender disparity is not unique to the Indian legal profession. Even in developed countries, the state of representation of women in the legal profession is distressing. To address the same, in Australia, the Law Council of Australia conducted a 'National Attrition and Re-engagement study (NARS)' with three objectives, them being : to (i) "explore the drivers of attrition of women in the legal profession, and understand how these may differ compared to male lawyers"; (ii) "explore the experiences and motivators of different cohorts of women, considering practising status, type of employment, stage of career and other factors"; and (iii) "identify factors that may assist in retaining or re-engaging women in private practice, the Bar and the profession as a whole."[6] The said study proposed to address "five key areas"- "Career path transformation; Leadership and role modeling; Relationships and support; Workplace safety; and Transparency and measures of success". Similarly, an Equitable Briefing Policy with the "aim is to achieve a nationally consistent approach towards bringing about cultural and attitudinal change within the legal profession with respect to gender briefing practices"[7] was also introduced in Australia. In contrast, however, no data regarding any serious study conducted in India on why women are eager to leave the legal profession could be found.

According to a study conducted by the American Bar Association on the issue "Why women leave the profession?"[8], three main reasons were found for the attrition; them being work-life balance, unconscious bias, and pay gap. Personal experience dictates that these three factors play a huge role in the Indian scenario as well.

Women are traditionally assigned with the gender role of being a caregiver to family members and the responsibility of household chores by the patriarchal system. This creates a stressful work/life balance situation for women. Even women who refuse to engage with or accept the skewed gender roles have to constantly struggle with the societal pressure to adopt them. The amount of mental and physical stress that this gender politics imposes on a woman ultimately forces many women to leave the profession and to take up less "demanding" jobs or to become a full time unpaid house maid. The mental and physical difficulties associated with menstruation, pregnancy etc. also adds fuel to this situation. No effective measures are in place to address such issues faced by a practicing woman lawyer.

Unconscious bias and stereotyping is rampant in the legal profession. The minds birthed, nourished and conditioned by patriarchy and misogyny are the main culprits here. It is true that there are judges and lawyers who encourage talented juniors irrespective of their gender or family background. However, women lawyers who have not received advice discouraging them from pursuing their career, in the nature of how advocacy, as a profession "is not meant for women"or how "women should have an alternative career plan" etc. will be very rare. Categorizing women lawyers as 'aggressive' or 'rude' if she is assertive, or as 'submissive' if she is not is also common. Another form of stereotyping is the eagerness to paint women lawyers as only suitable for handling family court matters but not criminal court matters. There is a trend not to respect the individuality of women lawyers. Projecting false narrative in the nature of portraying male lawyers as more competent than their female counterparts is also a common form of stereotyping. This stereotyping plays an important role in encouraging women to not choose or to leave the legal profession.

Pay gap between junior women lawyers and junior male lawyers performing the same job is also a serious concern. The practice of deciding the salary of lawyers based on extrinsic factors like the necessity of the junior lawyer to financially support one's family, her lifestyle and background, unwarranted assumptions as to monetary requirements, stressing that paying inadequate salary is a tradition which has to be protected etc. should be discouraged. Juniors should be paid solely based on their skills, the hours of work they put in and their efficiency. When a junior lawyer spends extra hours on a case it should not only be viewed as an opportunity for her to learn but also as an opportunity for the senior lawyer to reward her for her hard work. The pay gap forms a crucial factor for many women to leave the profession and their passion behind and to look for other vocations. It is utopian to expect everyone to survive just on passion; most lawyers need a reasonable income as well for sustenance. This is especially true for many women because being deprived of financial independence entails that she will be expected to obey the person in the family who financially supports her. Consequently, for a woman, financial independence is more or less equivalent to personal autonomy. Therefore, there is no wonder in women leaving the profession in search of better opportunities that assure equal and better pay.

The alarming issue is the absence of any proper study in India about the high rate of disappearance of women from courtrooms. The trickling number of women lawyers automatically gets reflected in other areas including the representation in judiciary, bar councils etc.[9] Therefore, while continuing the attempt to ensure there is more representation of women in the judiciary, especially in the higher judiciary, it is pertinent to take measures to increase the strength of women in the lower strata of the profession as well. To achieve this objective, it is the need of the hour to first understand and then address the issue as to why a large number of women are not choosing or choosing to leave the lawyer profession .

Creating avenues for conducting orientation programmes that benefit juniors in various ways like in educating them about the profession, ensuring proper mentorship to the new entrants, to discuss and resolve problems and dilemmas they face in the legal profession, for taking measures to cater to the mental health needs of women lawyers and to give support to during the time of stressful personal situations resulting from the patriarchal and misogynistic nature of our society, for taking initiatives and to give all possible support against situation like direct and indirect bias, unequal pay etc, have to be thought about and implemented. Without a proper support system to help women to fight the above discussed problems, it will be impossible to solve the issue of underrepresentation of women in the legal profession.

It is high time that we take measures to ensure that women in law, who are passionate about being in this profession are able to continue in this profession and that we make the professional environment attractive for them.

***

(Author is a lawyer practicing before the High Court of Kerala and the Supreme Court of India)



[1] Regina Guha, In re, 1916 SCC OnLine Cal 192.

[2] S.2 of the Act "A woman shall be entitled to be admitted and enrolled as a solicitor after serving under articles for three years only if either she has taken such a university degree as would have so entitled her had she been a man, or if she has been admitted to and passed the final examination and kept, under the conditions required of women by the university, the period of residence necessary for a man to obtain a degree at any university which did not at the time the examination was passed admit women to degrees."

[3] Sudhansu Bala Hazra, In Re, 1921 SCC OnLine Pat 20

[4] Lalitha Panicker 'The legal profession must ensure balance: Analysis', The Hindustan Times, <https://www.hindustantimes.com/analysis/the-legal-profession-must-ensure-gender-balance-analysis/story-zXAKhye28e9ihWXV4GetRK.html>, accessed on 15 May 2022 at 2.30 PM.

[5]

[6] National Attrition and Re-engagement study (NARS)- Discussion Paper, March 2014, Law COuncil of Australia <https://www.lawcouncil.asn.au/publicassets/cf493ac8-9830-e711-80d2-005056be66b1/NARS%20Discussions%20papers.pdf> accessed on 15 May 2022 at 2.45 PM.

[7] Equitable Briefing Policy, June 2016 <https://www.lawcouncil.asn.au/files/pdf/policy-guideline/National_Model_Gender_Equitable_Briefing_Policy_updatedversion.pdf> accessed on accessed on 15 May 2022 at 2.58 PM.

[9] This is only one of the reasons.


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