A Survey of the Challenges Faced by Indian Women Advocates in Litigation

Swagata Raha and Sonal Makhija

The Indian legal industry has witnessed unprecedented growth post-economic liberalization in the 1990s. The deregulation and opening up of the Indian market for private investments and international trade led to growing demand for legal services. The growth in the number of law firms is directly correlated to this.. In the last decade, the legal sector claims to have transformed from a family-based partnership model to an industry that is based on merit. The adoption of a “professional” hierarchal structure in law firms, international clients and an emphasis on rankings and branding has followed this trend. But how does this burgeoning legal industry retain its women lawyers? Why do women lawyers disappear as they move up the proverbial corporate food chain?

This question was a starting point for our study Challenges Faced by Indian Women Legal Professionals , on women lawyers in Delhi, Mumbai, and Bangalore. In the past decade, the number of women and men graduating from premier National Law Schools has been almost evenly split, but female numbers dwindle after a few years of practice.

Our nine-month study on the legal profession and interviews with 81 women lawyers of which 29 women were litigators unearthed some unsurprising and anticipated findings. Our study, found that women litigators now still cope with the same issues: lack of adequate sanitation facilities, overcrowded women’s bar rooms in courts, and in many cases lesser fees than their male colleagues. Moreover, clients often prefer male lawyers with less experience than women with more experience or skill.

Biases at Work

Women senior advocates widely acknowledge that a woman lawyer’s professional ability and soundness of advice arouses skepticism and doubt. Women lawyers are quick to be labelled aggressive, not serious, or frivolous. As per Senior Advocate Pinky Anand, “If a woman raises her voice to make a point, she is discerned to be cantankerous, not assertive. At times, this perception overshadows her merit and results in her being labelled aggressive.” The recent response by a Bangalore High Court judge asking a woman lawyer arguing a family law matter if she was married is a case in point. The judge labelled her as unfit to argue the case. “You are unfit to argue this case. You do not know real life. Why are you arguing like this? He is your (client’s) partner, not a stranger. Family matters should be argued only by married people, not spinsters. You should only watch…”

This inherent bias against women has meant that women have to constantly prove themselves. Women litigators in our survey admitted having to constantly prove their mettle and outperform their male peers in order to command equal, if not higher fees. The fact that women are not seen as primary bread winners further encourages clients to get away by paying less to women lawyers.

“When I was practicing in courts, as a woman, a certain tone in argument was often an implicit prerequisite to being given a fair hearing. When I started working part-time after my children were born, clients and colleagues outside my firm perceived me as not a ‘serious’ or a ‘real’ lawyer,” said a partner of a law firm based in Bangalore.

In litigation particularly, networking and socialising with almost entirely male clients proves tougher for women. Even the clients are, in certain circumstances, uncomfortable while working with women. In some cases, clients specifically choose women lawyers based on the assumption that they would command lesser fees than their male contemporaries. This inevitably affects women’s reputation and earnings. Not surprisingly, women lawyers have to fight hard for their rightful fees, which their male counterparts easily command.

Work-Life Balance

Unlike in the corporate legal sector, litigation offers a degree of independence, flexibility and an opportunity to participate in legal maneuvering and challenging legal issues. For many it is the thrill of practice and the need for quick thinking that attracts them to litigation. Also, the absence of a structured rigid nine-to-five routine allows women to juggle professional and personal commitments with some ease. Many independent practitioners work from home or convert parts of their homes into office spaces. One Delhi lawyer who practiced at the Supreme Court moved her residence closer to the court and her office, to keep a watch on her son and to make trips home during the day. According to her, “[l]itigation is more than a job really- it is a ‘junoon’ (passion) for lack of a better word to adequately describe it- I could never opt out, but I think of it often enough!”

Not surprisingly then, fort-five percent of women in our study felt confident of being able to strike a work-life balance. Thirty-one percent felt that work-life balance may be difficult and twenty-four percent shared that they had not even considered this aspect before opting for litigation.

Women who stayed the course in litigation practice eased the pressure through different creative approaches. One respondent opted to draft documents for other litigating lawyers who were short on time. Independent practitioners hired juniors and other legal support staff to assist them in meeting the demands of their work. Others have moved closer to court or converted their homes into offices, hired support staff to manage their homes, and yet some others have life-partners who are in the profession, making the family-professional tug easier to manage. For some others, it has meant limiting the areas of practice or the courts in which they practice.

Structural Inflexibilities

Unlike women lawyers in law firms and companies, the majority of women lawyers in litigation do not receive any maternity benefit and thus there is often greater financial pressure to return to work. Emphasizing the need for a supportive and encouraging spouse or family, Senior Advocates Pinky Anand, Geeta Luthra, and Advocate Pratibha Singh, cited a supportive partner and family as a pre-requisite for a successful career in litigation. Conversely, the absence of family support has an adverse impact on one’s career. A reliable support system at home is a privilege that many do not enjoy.

About seventy-nine percent of respondents took a break after childbirth. The duration of the break ranged from six weeks to six years. Approximately forty-one percent took 6 weeks to 6 months off while forty-four percent took a break of 1-2 years. The reasons for the break were mostly to look after their child, nurse the child, and to avoid stress associated with litigation. Seven percent of the respondents cited the lack of understanding and flexibility on the part of senior lawyers and the absence of day-care within the court premises as reasons why they chose to delay returning to work. Fourteen percent of them mentioned that they had to delay returning to work as there was no support available at home to look after the child. Fifty-nine percent of the women found the transition from maternity leave to work difficult owing to various factors, such as travelling on work, an unaccommodating senior, pressure to leave the organisation, and their commitment to work being questioned. The break between work, especially in an area like law, also made re-acquainting with work a challenge.

The impact of the pregnancy, maternity break, and motherhood is severe owing to structural inflexibilities that fail to include support measures that promote equality in employment. One respondent had to discontinue work at the onset of the fourth month of her pregnancy because of the long working hours, the lack of adequate or separate elevators, unsanitary rest rooms, and the bad conditions of roads. Respondents who were attached to a senior or a law firm complained of inflexible policies and the necessity of being present in office at all times that led them to quit during their pregnancy.

For approximately fifty-nine percent, pregnancy led to fewer clients and work, as it affected their visibility in courts. In litigation, most networking happens in courts where court gossip and trade skills are exchanged. Advocate Haripriya Padmanabhan shared her story – “I used to leave court immediately after my cases and rush to my baby. This meant that I was not ‘seen around’ in court where it mattered– namely, the coffee shop. Till date, many lawyers ask me if I am back to work full time when they run into me—largely, because they have not ‘seen me around’ too much. Unfortunately, part of the drill of being successful in our profession is the visibility factor.”

Fifty-two percent of women surveyed admitted that the maternity break had an adverse impact on their career. Those who found the return to practice after maternity break easy cited family support, child-care help, having an independent practice, and a relatively short break from work as reasons. Those who found it difficult attributed it to the absence of reliable childcare support, fatigue, concern for the well-being of the child, and having lost touch with practice.

Working mothers in litigation lost out on clients who preferred to opt for lawyers who were available. Their absence from chambers affected their earnings. In the words of one of the respondents, “…the work flow was cut as clients were not sure whether I would be able to manage work. There was a perception that I would not be regular in court, which I had to combat by simply being in court even when there was really nothing much to do.” Another respondent said, “[f]or about a year and odd after the baby, I was in court only when I was needed, due to which there was a perception that I was not serious about my practice. Lack of a proper crèche was a big problem during this period…So, I used to bring her in the car with me and the child would be in the car parking lot [with a nanny] for hours when I had to be in Court. Some of my other colleagues, who had babies, also followed the same routine.”

Role of the Bar Council of India in Promoting a Conducive Working Environment

In her autobiography, titled On Balance, Justice Leila Seth described how “a musty storeroom” was passed off as the women’s washroom. More than five decades later, most High Courts and lower courts have abysmal working conditions, especially with respect to sanitation, making it impossible for women to negotiate the court halls. Women’s rest rooms in most courts not only lack in sanitation, but are too few in number.

Ninety-three percent of respondents strongly agreed that sanitary toilets for women on each floor of the court premises were necessary to make courts more accessible to women lawyers. Seventy-two percent of the respondents agreed that a crèche facility accessible to all within the court precincts would make the profession a lot more conducive for women. It would also encourage male lawyers to partake in their parental responsibilities while shuttling between courtrooms. Not only would it aid in curtailing the exodus of young women lawyers from the practice, but it would also bring about equity in parental responsibilities for most working couples.

Additional facilities, such as baby changing-rooms and a room where women could breastfeed their children, were considered important infrastructural requirements by respondents. Ninety-three percent of women lawyers felt that judges being accommodating and sensitive to pregnant women would make courts more conducive. Seventy-nine percent of women lawyers felt that the sensitivity of their colleagues at the time of pregnancy, which could include assisting in taking adjournments or handling matters in courts, would also help.

Section 7 of the Advocates Act, 1961 mandates the Bar Council of India to safeguard the rights, privileges, and interests of lawyers. The State Bar Councils are also required to safeguard the interests of advocates on its roll and conduct seminars. Senior Advocate Pinky Anand has recommended that the Bar Council of India should extend support to young women lawyers at the start of their careers by encouraging the empanelment of women by organisations. In furtherance of their statutory mandate, the Bar Council of India and State Bar Councils should undertake measures to support the entry and growth of women in litigation.

Sonal Makhija has an Masters of Science in Law, Anthropology, and Society from the London School of Economics and Political Science. She is presently pursuing her doctoral studies at the University of Helsinki. She can be reached at sonal.makhija@gmail.com.

Swagata Raha graduated from the West Bengal National University of Juridical Sciences and is a human rights law researcher based in Bangalore. She can be reached at swagataraha@gmail.com.

India Passes a New Bill for The Protection of Women in the Workplace

By: Sheetal Parkash

India has recently grabbed the wrong kinds of headlines, mostly having to do with the prevention and prosecution of sexual assaults and rapes of Indian and foreign women. But there is another battle being fought which escapes media attention, particularly outside India. That is the fight for protection of women against sexual harassment in the workplace.

Over the years, women in and out of the workplace have been and continue to be objectified by men who take liberties with remarks laced with sexual innuendo and even go to the extent of outright demands for sexual favors. Binding guidelines to protect women from sexual harassment in the workplace have been the law of the land ever since the Supreme Court’s decision in Vishaka vs State of Rajasthan (1997 SCR 3011). Vishaka established that each incident of sexual harassment was a violation of a woman’s constitutional right to equality and dignity in all workplaces and institutions. Lofty sentiments expressed in the Constitution, statutes and case law, however, are often lax in the enforcement. The guidelines were never effectively implemented let alone enforced. Thus, the focus of efforts to prevent and punish acts of sexual harassment shifted to employers, requiring them to enforce mechanisms to protect their women employees from sexual harassment in the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 (Sexual Harassment Act), effective April 22, 2013, imposes upon the employer the responsibility to prevent a hostile work atmosphere for its women employees.

Sexual harassment is a violation of the fundamental rights of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India, her right to life and to live with dignity as per Article 21 of the Constitution and right to practice or to carry on any occupation, trade or business under Article 19(1) (g) of the Constitution, including the right to a safe working environment.
The ambit of the act is wide enough to make it applicable in the organized as well as the unorganized sectors. The definition of “workplace” includes all government bodies, private and public sector organizations, non-governmental organizations, organizations carrying on commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals. “Employees” include daily wage basis laborers and contract laborers, who either directly or through an agent, work with or without the knowledge of the principal employer, whether for remuneration or on a voluntary basis, or whether the terms of employment are express or implied. The term “employee” includes co-workers, probationers, trainees, and apprentices. A woman of any age subjected to any form of sexual harassment whether at the workplace or a dwelling house is covered by the Act. Sexual harassment includes unwelcome physical or verbal contact, showing of pornography, demands for sexual favors as well as sexually colored remarks. Every offence is treated as non-cognizable. (A non-cognizable offence under Indian criminal law requires a court-ordered warrant in order for the police to make an arrest.)
Section 19 of the Act requires the employer to provide a safe working environment by displaying conspicuously at the workplace the criminal consequences of acts constituting sexual harassment. The composition of the Internal Complaints Committee in the workplace, workshops and awareness programs at regular intervals to sensitize employees on such issues, are some of the measures required by the Act. Sexual harassment is misconduct of a serious nature and the offender risks prosecution and punishment. Where an employer fails to comply with the provisions of the Act, it imposes a penalty of up to INR 50,000 (U.S. $830 based on the official exchange rate in June/July 2013, or roughly $2,500 on a purchasing power parity basis).

The Act also requires the employer to timely address grievances of sexual harassment in the workplace and to initiate action against the complainant in case of a malicious complaint. This provision is designed to deter false allegations against co-workers.

Due to the growing awareness of the need for an enforcement mechanism, Section 354A has been added to the Indian Penal Code, 1860, which lists the acts constituting the offence of sexual harassment that are punishable with imprisonment for a term of one-to-three years, or a fine, or both. Thus, the amendment criminalizes all acts of sexual harassment against women and imposes harsh penalties upon the convicted offender.

India’s economic liberalization has continued to bring with it unprecedented social and demographic mobility for men and women. That mobility has laid bare the ostensible conflict between traditional and modern values. Paradoxically, Indian mythology and folklore typically place mothers and sisters on a pedestal, but only if they play their assigned roles as mothers and sisters within a patriarchal system. Moving from deifying women in the traditional sense to simply treating them with respect and dignity in the workplace should not be difficult. Apparently, it is, and women have had no option but to advocate for moves by Parliament to criminalize sexual harassment as the most important component of a campaign to restore civility in the workplace.

It is to be hoped that the threat of prison and fines under the legislation of 2013 will at last reduce, if not eliminate, the scourge of sexual harassment. A typical working woman may finally see herself treated with respect in the workplace, and accepted not as one with goddess-like characteristics or some mythological ideal of “woman,” but just as a woman who is an equal member of society deserving of the same respect, dignity and freedom as any man.

Sheetal Parkash is an advocate with LawQuest, a Mumbai-based law firm. Her practice includes corporate law, civil law, property law, litigation and intellectual property rights. She can be reached at sheetal@lawquestinternational.com.