Access to Legal Education and the Legal Profession: A Gender Perspective
By Hon. Ms. Justice Hima Kohli
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Law is often characterized as an instrument of power. A natural corollary to this is that access to formal education in law would advance the cause of equality, fair play and social justice. In India, formal education in the stream of law was introduced as early as in 1855-1857, with the establishment of Universities in Calcutta, Bombay and Madras. This was before India had gained independence from the British rule. In those days, the legal profession in India was treated as a man’s preserve. In fact, before the year 1923, while women in India could study law, they were not allowed to be enrolled as advocates. This singular reason for their disqualification from entering the legal practice was their gender.
Some notable women, like Regina Guha, Sudhanshubala Hazra, and Cornelia Sorabji had to fight a hard and protracted legal battle to pave the way for a social movement that ultimately led to the promulgation of the Legal Practitioners (Women) Act, 1923 which entitled women to be admitted and enrolled as legal practitioners. Even after being admitted into the legal arena presence of women in the legal profession remained negligible till the 20th century.
In mid 1980’s, National Law Universities (NLUs) that are autonomous institutions, were established and conceptualized to offer a robust face lift to law and legal education. Currently, academic institutions in India where legal education is imparted, broadly comprises of three categories: NLUs that offer a five-year course, Law Centers established in public universities and private Law colleges. Some of the latter two institutions offer a five-year course while others offer a three-years course only on completing an undergraduate discipline. As on date there are 1721 Law Colleges and Universities imparting legal education in India. India is the only country in the world that can boast of Universities exclusively dedicated to legal discipline. The very fact that several Law Colleges have been established and are thriving in cities across the country, shows how popular law is as a career option.
Despite a remarkable rise in the number of students preferring to select Law as a career option, the presence of women in the field of legal education remains skewed. As per an All India Survey in Higher Education conducted in 2019-20 and published by the Ministry of Education, Government of India, in 2020, out of 432,000 students who had enrolled in the stream of Law, only 33% were women. This is a slight improvement over 2013, when 31.9% females had got enrolled in the legal stream.
Coming to the legal profession, the Advocates Act, enacted in 1961, was a major milestone in improving the condition of legal education as it laid down the foundation for setting up of the Bar Council of India and the State Bar Councils that are entrusted with the duty of regulating and representing the Indian Bar. The data tabled by the Law Ministry in the Indian Parliament on 29th July 2022, on collating information from 24 State Bar Councils in respect of the total number of lawyers and the number of women lawyers, revealed that only 15.3% of lawyers in India are women.[1] Representation of women lawyers in the Executive Committee of State Bar Councils also remains abysmally low. A recent study conducted by ‘Bar and Bench’, an online portal for Indian legal news states that only 2.04% of the State Bar Council representatives across India, are women. This means that out of 441 representatives of 18 State Bar Councils, only 9 are women. It is distressing to note that the Executive Committee of the Bar Council of India does not have a single women lawyer representative[2].
Now, a glimpse at the number of women in the Judiciary in India. As per the reply of the Law Ministry given on July 29, 2022 to an unstarred question in the Lok Sabha, out of 19,288 Judges employed in the District courts, 6,765 or 35% are women. A recent dataset released by KHOJ (Know your High Court Judges) states that in the past 25 years women account for less than 8% of the High Court Judges. More than half of the 25 State High Courts in India have not had a woman Chief Justice and just eleven women Judges have been elevated to the Supreme Court of India in the same time span[3]. The total strength of Judges in the Supreme Court is 34 and currently, out of 27 sitting Judges, there are only 3 woman Judges which makes it the highest percentage of woman Judges in Supreme Court since its inception. Statistics in respect of women in legal academics disclose that only 5 out of 23 Universities established in India have had women Vice-Chancellors and just 25.96% of the professors teaching at the Universities are women. This is a stark reminder to all the stakeholders, that no matter what their position may be, they must work collectively to advance gender parity.
While it's creditable that in the face of adversity, women have come so far in overcoming discrimination, they remain in minority in the legal profession, particularly in private practice and in leadership positions in law firms and legal departments of the corporate and public sectors as also Government establishments. The trend in India is that several working women are compelled to abandon their career after marriage due to family commitments and motherhood. This invariably brings her profession to a grinding halt and by the time she returns to work, her male counterparts would have overtaken her.
The question that arises is how can we promote the access of women to legal education and the legal profession? To monitor the progress made in this direction, it is imperative to track and publish gender statistics relating not only to the intake of female students in Law Colleges, but also the percentage of their retention since it is often seen that there are several dropouts during the course and the pass out numbers are far below the intake. It is equally important to conduct regular survey of the number of women lawyers who have registered themselves with the State Bar Council for entering the legal practice vis-à-vis those who are actually in active practice. This will help throw light on the number of women who have remained in the profession, post registration with the Bar Council. A similar exercise must be undertaken in relation to appointment of women as partners in Law Firms, as Arbitrators, Mediators as Resolution Professionals and Liquidators under the Insolvency and Bankruptcy Code, 2016. Compiling and publishing these statistics will go a long way in analyzing where the problem lies and what are the steps required to control the attrition rate and redress the situation.
Another way of encouraging more women to join the legal profession would be to call upon the respective institutions from where women lawyers have been graduated, to have their accomplishments highlighted, for attracting more talent and broadening the pool. The legal industry as a whole would do better at appointing, promoting and retaining women lawyers. For doing so, it is necessary to address the underlying systematic bias and barriers that adversely affect women professionals who despite their merit have been historically treated unequally. This would include resolving issues relating to wage-gap, work-life balance, lack of advancement opportunities for women and lack of understanding their constant struggle at multitasking. It would also involve tackling more subtle forms of discrimination and bias at the workplace, such as unreasonable expectations and stereotypes that are often imposed on women.
Within the legal profession, one of the biggest barriers faced by women as practicing lawyers, as Arbitrators, as Technocrats, Domain specialists and Resolution Professionals etc. is that they are not adequately represented on panels prepared by the government, state authorities, public sector undertakings, corporate sectors, banks and financial institutions. Names of women candidates are often overlooked when it comes to appointing an Arbitrator, Technocrat or a Resolution Professional. Given the fact that presently, men make up for a majority of key decision makers in the legal industry, the onus lies with them to play proactive role and advocate for gender parity at the workplace. They must assist their clients in drawing up lists of Arbitration and Mediation candidates, Technocrats and Resolution Professionals and Liquidators that include an equal number of men and women.
Women should not be nominated on panels of Banks, Government departments and State authorities just to make the numbers look better. Efforts should be made to genuinely invest in their professional development and promote the meritorious ones actively to the clients. Women should be nominated more often by law firms, legal departments and the corporate sector to attend international and domestic conferences and participate in panel discussions. Women are known to bring to the table, a unique perspective on several issues, thus giving them a multidimensional, angle, articulating their thoughts on various subjects will help in broadening the frame of reference. Law firms and legal organizations should make a concerted effort to improve diversity and inclusive policies at work. Launching initiatives such as mentorship programmes, sponsorship programmes and flexible work arrangements including work from home will support the advancement of women in the legal profession. Ultimately, the presence of women in top leadership positions within the law firms and legal departments will help overcome an unconscious bias and instill confidence in women as framers of policy.
Despite recent efforts to increase gender diversity in the legal profession, there is still a long way to go in terms of equality and representation. A just and equitable society can be achieved only when all genders are afforded equal opportunities expended an even handed treatment and an inclusive approach when it comes to access to legal education and entry into the legal profession. No doubts, the number of women in the legal stream in India has increased in the recent years, but the number of women practicing law and achieving leadership positions remains disproportionately low. This lack of diversity has consequences not only for women, but for the justice dispensation system as a whole. Research has shown that diverse teams make better decisions and are more innovative. A legal system that is representative of the aspirations of cross sections of the society, is more likely to deliver fair and just outcomes of disputes.
Ultimately, increasing gender diversity in the legal profession is not just about achieving equality, but about creating a more open and fair-minded society. A legal system that is representative of the diverse experiences and perspectives of its population, is more likely to deliver equitable and just outcomes for all.
I may conclude with the words of Justice Ruth Bader Ginsburg, Judge, Supreme Court of the United States of America who had once said:
“As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things and we’ll all be better off for it.”
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[1]https://www.indiatoday.in/india/story/law-minister-kiren-rijiju-number-female-lawyers-country-no-data-nine-states-parliament-1981612-2022-07-29
[2]https://www.barandbench.com/columns/only-204-of-state-bar-council-representatives-across-india-are-women#:~:text=No%20woman%20officer%20bearer%20in,member%20who%20is%20a%20woman.
[3] KHOJ (Know Your High Court Judges) dataset released on 17.09.2022 , jointly collated by a group of organizations including Agami, CivicDataLab, and the Centre for Public Policy, Law and Good Governance at National Law University, Cuttack, Odisha (NLUO)