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How women lawyers are kept out of litigation

Ramya Subramaniam writes: While the bench is making slow yet definitive progress with regard to women's representation, the Bar needs to do much more

Written by Ramya Subramaniam |
Updated: October 21, 2021 7:36:49 am
When “run-of-the-mill" problems such as lack of creches in courts, unusable restrooms, non-recognition of maternity leaves are added to the mix, the slightest chance of a woman litigator’s thriving career evaporates ever so quickly.

In a historic first for India, three women judges have taken oath at the Supreme Court of India. The Chief Justice lauded this, while observing that at least 50 per cent women should be found at all levels of the judiciary. While the bench is making slow yet definitive progress in this regard, what about the bar?

There is an abysmal lack of data or literature on women in litigation, especially commercial litigation. According to a Vidhi Survey conducted in 2020, the number of women in litigation was maximum in Kerala, at 28.57 per cent, while other cities such as Madras (10.5 per cent), Delhi (22.47 per cent), Bombay (21.51 per cent) showed appalling levels of representation. Therefore, it becomes crucial to examine the representation of women across the bar.

Justice D Y Chandrachud, in a speech in 2012, noted that, as of 2012, only five out of the 294 senior advocates in the Supreme Court of India were women, an abysmal 2 per cent. However, he noted that women in corporate offices and law firms fared better in terms of equality, owing to the gender-neutral trajectories in elite law firms.

While equality in any space calls for celebration, this compels us to examine why this hasn’t been replicated in the courtroom. A definitive reason is a pre-decided pay scale. For a woman fresher entering a corporate office, the pay scale would be more or less decided/demanded based on the male counterpart’s salary as a guiding factor.

However, the stories in corporate offices and courtrooms are like chalk and cheese. The factors deciding pay in litigation are varied, especially in the junior to the middle level of the profession. In a study conducted by Sonal Makhija and Swagata Raha, it was found that clients choose female lawyers so that they can pay lesser amounts in fees. Therefore, with no law governing the pay scale, independent women legal practitioners are strong-armed into accepting a much lower remuneration, thereby making it a difficult profession to sustain in.

Secondly, the common conception is that litigation offers greater flexibility, as one need not clock in a particular number of hours, and can take advantage of court vacations. Further, there is also the option to take on fewer clients. However, this “flexibility” results in a woman’s litigation career being trivialised. This trivialisation, cloaked as flexibility, further pushes women out of the litigation space. They are rarely seen in the courtrooms, and “out of sight, out of mind” is an adage the courtroom swears by.

Further, while there is reservation for women across several public offices, colleges, there is no such requirement for the positions of government pleader, or a public prosecutor, thereby rendering women government pleaders extremely rare.

When “run-of-the-mill” problems such as lack of creches in courts, unusable restrooms, non-recognition of maternity leaves are added to the mix, the slightest chance of a woman litigator’s thriving career evaporates ever so quickly.

If one overcomes the above, the story is no better. Most women practising in the courtroom are pigeonholed into practising family law or women’s rights law. At the outset, I must clarify that as noble and important as these areas of practice are, the point to be made is that women are pigeonholed into certain practice areas.

Women are generally seen to be non-confrontational “care-oriented lawyers”, who will be better at understanding the client from an emotional standpoint, but never from an economic or financial standpoint. This also explains the hoard of articles that say women are better mediators — yet another example of sexism neatly packaged as psychology. This presumed character trait is found to be undesirable in litigation, especially a commercial one, in which only a “steely” man can take the reins and make a convincing argument in the courtroom “with his bellowing voice”. The message is clear — women don’t belong in the highly remunerative commercial dispute resolution space. It is a boys’ club.

This perception is only further fortified by the fact that most women who are quoted as “super lawyers” or featured in the coveted “30 under 30” lists are never commercial litigators. They are often women who have fought for women’s rights or women in corporate law offices. In comparison, there are several men featured in these awards and magazines, who haven’t espoused the cause of social justice, who purely practice commercial law in courts.

Recently, I came across an article featuring three women, Shally Bhasin, Ruby Ahuja and Misha, who were the legal wire-pullers in the protracted court battle between Essar Steel India Ltd and ArcelorMittal. These stories are rarely publicised, rarely spoken about and even rarer to find.

The above situation calls for urgent changes. On a high-priority basis, surveys have to be undertaken by the government across courts to understand and improve the representation of women across the bench. Media houses need to feature, acknowledge and appreciate women in the commercial litigation space. Needless to state, elevating more women to the bench will definitely lead to more women in the bar. Improving facilities for women, especially mothers, will keep in check the attrition rate. While progress might be slow, it is crucial to take one step forward at a time in this direction.

This column first appeared in the print edition on October 20, 2021 under the title ‘Bar and bias’. The writer is a dispute resolution lawyer practising in the Madras High Court

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