Gender gap in judiciary

Gender gap in judiciary

Malia Politzer & Nikhil Kanekal
Updated7 Mar 2011, 11:21 PM IST
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When Poorvi Chothani announced she wanted to practice law nearly 30 years ago, few people took her seriously. A family friend, a litigator himself, said she was “playing the fool” and would be out as soon as she got married.

Despite her initial persistence, long hours and increasing responsibilities at home forced her to quit as a litigator. But Chothani did eventually return to law, founding a successful corporate firm, LawQuest.

Also See Women Judges of India (PDF)

While she is happy with her work, a part of her regrets leaving litigation. “I was very passionate about it.” she said. “I would tell women today that the world is your oyster—don’t let anything get in your way.”

Although the gender gap at new law schools has narrowed over the past 10 years, litigation—the act of practising law in courts—remains primarily the domain of men: walk into a court room, and female advocates are conspicuously fewer. In six decades, only four Supreme Court justices have been women.

Today, women represent a paltry 8.5% of judges presiding over India’s higher courts. This gender gap becomes particularly relevant with respect to judgements and jurisprudence affecting women: A recent Supreme Court judgement excluding “mistresses” and “keeps” from palimony (maintenance) from a live-in relationship is just one example. Written by an all-male bench, the controversial portions of the judgement were deleted only after Indira Jaising—the first woman to be appointed senior law officer to the government and one of the primary architects of the domestic violence law—denounced it in open court.

“The judiciary represents our society, which is made up of both men and women,” said Bharti Birla, who works on gender equality for the International Labour Organization (ILO). “When the perspective of half the population is lacking, there’s a problem.”

Law has long been considered a man’s field. Women weren’t even allowed to practice in India until 1924: Cornelia Sorabjee, the first Indian woman to study law at Oxford, spent most of her life pushing for legislation that would allow her to argue in court.

Nearly 90 years later, women are no longer prohibited from entering any profession. Still, a stark gender divide remains: According to 2004-2005 National Sample Survey Organisation (NSSO) data, only 7% of Indian women—as opposed to 10% of men—work in the formal sector. Most are in jobs traditionally considered “feminine”, such as education, healthcare and public service. Fewer than than 5% opt for careers considered “masculine”—like real estate, finance, retail, or law.

“Law goes against traditional norms of what it means to be a woman, because it’s about standing up and being vocal, and requires long hours,” said Reiko Tsushima, a gender specialist with ILO. “Unless you have a very supportive husband and family, it’s very difficult to maintain.”

Regardless of gender, litigation is a tough field to break into. In order to build credibility and clientele, new law graduates must apprentice under senior advocates as juniors, which means working long hours for little or no pay before they can start on their own. A 2009 study by Research Foundation for Governance in India (RFGI) found more than 70% of the country’s top law graduates are choosing jobs at law firms or as in-house counsels in companies. Lack of family connections and poor pay were cited as major reasons for pursuing other tracks. “Litigation has become like the caste system,” said one interviewee in the study. “Only the person having a father (in litigation) can enter it.”

For women, these hurdles are much tougher to scale, according to Kanan Dhru, one of the writers of the RFGI study. Although family connections generally benefit litigators of both genders, some legal families actively discourage their women from pursuing litigation, pushing them instead towards jobs in law firms or in-house counsel that have more family-friendly hours and better starting salaries, she said. Of those who pursue litigation, many drop out once they start families.

Practising litigators report stereotypes that women are more gentle and less corruptible than men often determines the type of cases they get. “There are very few women in criminal law,” said advocate Swathi Sukumar. “The perception of women as soft still dominates this practice area.” This might explain why women tend to gravitate towards family and divorce law.

The situation is perhaps worst for women practising in smaller jurisdictions. In the lower courts of Aurangabad in Bihar, it was so unusual for women to practice that Delhi-based senior advocate Pinky Anand remembers a time when 300-400 male lawyers followed her around the corridors and the judge “actually took time out to shave” before coming in to hear her case. “We could literally see it through the curtains,” she said.

Other anecdotes are not so humorous. One of Kanan Dhru’s acquaintances quit her firm when a male colleague repeatedly showed her “vulgar” photos. Another woman lawyer practising in Ahmedebad’s lower courts had her briefs and books repeatedly thrown out from the parking lot where lawyers had set up their desks. Neither woman lodged a formal complaint. Because many women are still trying to prove themselves, they rarely report such incidents, Dhru said. “No one wants to draw attention to themselves,” she said. “They don’t want to create an issue that could jeopardize their career.”

In an effort to address the gender gap and to network women across the legal profession, a group of lawyers started the Society of Women Lawyers (SOWL) this year. SOWL aims to promote women to leadership positions in the legal profession, judiciary, and workplace, and review legislation relevant to women. “We aim to penetrate the old boys club that seems to exist at the upper echelons of the bar,” said Priti Suri, president of SOWL.

Things do appear to be improving. At the SOWL launch last month, Delhi high court justice Hima Kohli spoke encouragingly of the progress that women have made. When she began her practice 22 years ago, there were very few women in the judiciary. Today, Kohli is one of eight women sitting on the bench, making the Delhi high court home to the largest number of women judges in India.

“Nobody’s going to stop you when you’re entering practice and say go back. You’ll be appreciated because there are few women doing so,” said Sukumar. “In the Delhi high court people actively encourage you. You’re noticed if you do a good job because people are aware of the factors against you.”

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First Published:7 Mar 2011, 11:21 PM IST
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