[Vidhispeaks] Litigation: Last career option for women?

At 15.31 percent of the total advocates, female advocates form a miniscule minority at the Bar. However, the data in its current shape and form, hides more than it reveals.
Women representation in Bar
Women representation in Bar

By Deepika Kinhal and Atishya Kumar

Recently, the Department of Legal Affairs (DoLA) published State-wise data on the number of female advocates enrolled in the country as part of its response to a question posed in Lok Sabha on the number of women lawyers in the country.

The response states that the data is based on information provided by the State Bar Councils on the total number of advocates enrolled and the number female advocates therein for their respective States.

Lack of gender diversity in the legal profession has often been discussed as a matter of conjecture. Therefore, this first attempt at gathering and publishing nationwide data on female advocates is worth celebrating. At first glance, the numbers substantiate the obvious - at 15.31 percent of the total advocates, female advocates form a miniscule minority at the Bar. Having said that, the data in its current shape and form, hides more than it reveals.

For starters, the overall percentage of female advocates is based on data furnished by only 15 out of 24 State Bar Councils. While all 24 have provided data on the total number of lawyers, 9 Councils including Bihar and Delhi, have failed to provide the break-up of female advocates enrolled.

Therefore, the percentage of female advocates vis-a-vis the total number of advocates is inaccurate representation since it fails to account for the missing data from some of the largest Bar Councils.

This misinformation however, may be taken positively as it indicates that in terms of absolute numbers, there are more female advocates in the country than what the data currently reveals.

Given the above, it is suggested that to arrive at the overall percentage of female advocates in the country, just the 15 States which have provided the break-up for female advocates should be considered.

This method of calculation leads to the percentage of female advocates being around 23.55 percent instead of the 15.31 percent, as quoted in the document.

Amongst these 15 states, only Gujarat, Kerala, Maharashtra and Goa, Manipur and Meghalaya are above the average percentage with Meghalaya taking the lead with 59.31 percent female advocates.

Further, in terms of comprehensiveness of data, it is pertinent to note that the time period indicating the starting date of this data collation exercise has not been mentioned.

Since Bar Councils in states were not established simultaneously, it is possible that the timelines across which information on the enrolled members of the Bar was gathered vary vastly.

Further, while most States mention July 2021 as their cut-off date, States like Assam and Himachal Pradesh have furnished data only up to 2017, and Jammu and Kashmir and Tripura Bar Councils have neither mentioned the starting nor the cut-off date to indicate the data validity period.

Despite the above glaring anomalies in the manner in which data has been collected, there are a lot of learnings which could be used to understand the ground situation leading to the skewed number of female advocates across the country.

As per IDIA’s Diversity Survey Report 2020-21, the percentage of female students entering legal education in the top 5 National Law Universities ranges from 30-45 percent. Hence, the 23.5 percent for female advocates indicates that while more and more women are graduating as lawyers, litigation remains male dominated.

The possible reasons for this could be that litigation as a field is known for long, inflexible hours with very little to show in terms of earnings in the initial years coupled with no job security.

Vidhi’s survey on this point showed that the average earnings of a lawyer for first two years practising in a High Court is between ₹5,000-20,000, which is not sufficient to even cover the cost of rent in most cities.

By the time a woman lawyer is able to establish herself, familial responsibilities in the form of moving cities on account of marriage, childcare etc., come in the way of her professional growth as litigation is often location specific.

Given this trajectory, most women lawyers perhaps view litigation as an unviable career option.

Further, enrollments do not automatically translate into the number of practising lawyers as many lawyers enrol but choose to pursue a career both within and outside the legal field entirely.

This is particularly true for female advocates as can be seen from the correlation between the lack of gender diversity at the Bar translating into abysmal female representation on the Bench.

As per Vidhi’s report on gender representation in the lower judiciary, it was found that while women judges make up 36.45 percent of judges who entered the lower judiciary through direct examination, the percentage dramatically dropped to 11.75 percent at the level of District Judges.

One of the main reasons for this decline is that 7 years of continuous practice as an advocate is mandatory to be eligible for appearing for the direct recruitment exam and as mentioned above, due to various familial responsibilities, most women are unable to meet the requirement.

Further, these barriers also directly impact the elevation of women to the higher judiciary since there are very few women District Judges for the collegium to choose from. Therefore, we currently find only 12.5 percent women on the bench of the Supreme Court and 13.16 percent women across High Courts even after 75 years of Independence.

To course correct gender representation on the Bench, it is therefore essential to start with corrective measures at the Bar.

State Bar Councils can take a lead on this by introducing measures such as mandatory stipend for the first 2-3 years of practice, maternity benefits, a robust Internal Complaints Committee to prevent cases of sexual harassment, crèche and breast-feeding facilities for young mothers on or near court premises.

For example, the Delhi High Court inaugurated a crèche facility in the court premises in April this year, 23 years after the representation for the same was made and this step has been applauded for helping women not choose between their careers in litigation and their familial obligations.

The judiciary can also play a role by easily facilitating virtual hearings in whichever cases possible and encouraging female lawyers who want to pursue a career in litigation despite all odds. However, it is pertinent to highlight here that the State Bar Councils themselves suffer from huge gender disparity.

According to a study conducted by Bar and Bench in 2021, only 2.04 percent of the State Bar Council representatives are women. Ultimately, the Bar and the Bench need to work in tandem and walk the talk on making the justice system diverse and inclusive.

On a closing note however, it must be reiterated that there is a need for a more robust and scientific approach to data gathering initiatives in the law and justice domain.

The discrepancies in data highlighted above must be addressed and for this, DoLA can take the lead in creating a uniform template based on which State Bar Councils can collate up-to-date information on lawyers actively practising in their respective jurisdictions. Such a template can also include details of socio-economic status of lawyers, their educational background, areas of specialisations amongst other things.

Granular data is required for data-driven policy making for the betterment of litigation lawyers. Therefore, while one must celebrate this attempt at understanding gender diversity at the Bar, a lot more ground work needs to be done to understand the issue in all its manifestations.

Deepika Kinhal is a Senior Resident Fellow and Lead with the Justice, Access and Lowering Delays in India (JALDI) Initiative at the Vidhi Centre for Legal Policy.

Atishya Kumar is a Research Fellow with the Justice, Access and Lowering Delays in India (JALDI) Initiative at the Vidhi Centre for Legal Policy.

Vidhispeaks is a column on law and policy curated by Vidhi. The views expressed are of the fellow and do not reflect the views of Vidhi or Bar & Bench.

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