Legally Speaking | Tracing the journey of women in law in India

In the last 75 years since its establishment, the Supreme Court has had only 11 women Justices, amounting to only 4% of the total judges the Court has had. With the retirement of Justice Hima Koli, the Supreme Court as of now only has 2 women judges.

The initiation of women into the legal profession was a result of the spirited challenge launched by women themselves. Regina Guha topped her law degree examination at Calcutta University in 1916 and promptly applied to enrol as a pleader before the Alipore District Judge’s Court. However, the Court rejected her application, stating that a pleader could not be a woman.

She challenged the verdict before the High Court which formed a full bench to hear it. Her challenge was that the enactment used the term persons, which under the General Clauses Act had been interpreted to include women as well. The bench, however, unanimously held that the law as it stood allowed only men to enrol as pleaders and it was only the legislature which could amend the same. In 1921, Sudhanshubala Hazra was denied by the Patna High Court to enrol as a pleader. While denying her plea, Justice Mullick speculated that perhaps, “… the Legislature was of the opinion that it would be repugnant to ideas of decorum to permit women to join in what I may call the rough and tumble of the forensic arena.”

Interestingly, while the Patna High Court was hearing this matter, the Allahabad High Court had enrolled Cornelia Sorabji as a Vakil under the Allahabad High Court rules. The different High Court judgments propelled a change in the law and finally the Legal Practitioners (Women) Act, 1923 was passed. Sorabji, the first woman to study law in Oxford was also the first Indian woman to practice law in a court, Sorabji faced several challenges including being excluded from using the Bar Library and male colleagues dissuading potential clients by stating, ‘no women can know the law.’

Over 100 years later women in the legal profession continue to face challenges. Whether it be Justice Leila Seth, the first woman Chief Justice of a High Court recounting the pressures of being a woman in a ‘male profession’, or Justice Anjana Prakash recalling the instance when she and her female colleague were made part of the ‘kitchen committee’ in the Patna High Court or Indira Jaising’s letter to Chief Justice D.Y. Chandrachud recounting the instances of gender stereotyping, accounts of misogyny and sexism in the legal profession are hardly rare.

In July 2022, the law and justice ministry while answering a parliamentary question stated that women accounted for only 15.31% of the lawyers in the country. Meghalaya had the highest share at 59.31% and Uttar Pradesh had the lowest representation at 8.75%. On a specific query regarding the attrition rate of women lawyers, the minister admitted that there was no study on it and the same was dependent on the ‘independent choice’ and ‘interest of the individual’ which were among other factors influenced by ‘the prevalent social and family circumstance.’

What are the prevalent social and family circumstances? The Time Use Survey 2019 of the Indian Institute of Management, Ahmedabad concluded that women between 15-60 years of age spent 7.2 hrs a day on unpaid domestic work, compared to men who spent just 2.8 hrs. Society is aware of this skewed distribution of work, which is why a study by Rainmaker on the work conditions of working mothers in the legal profession in 2012 found that 50% of the women were asked about their marital status and 62% were asked if they had children during the job interview, a question the men are hardly asked.

The report also found that marriage and childbirth often created barriers at work, especially for women in litigation. The lack of good childcare facilities often compelled women with limited to no support to take breaks. These breaks hinder the career prospects of women. The study concluded that most women felt motherhood had an adverse impact on careers because the working conditions in the legal profession were designed for the ‘ideal male worker’ who did not have to worry about the home or child-rearing.

Women in the legal profession are aware of the pressures which is why Nagarathna herself urged women to return to the profession after these leaves of absence and develop skills to manage the difficult balance between work and home. In her interview with the Supreme Court Observer, while she suggests institutional changes like creche, child playroom, etc, she is also aware that in the end, the choice needs to be made by the individual.

Senior advocate Geeta Luthra also echoed the same in an interview where she said that “working women in a profession like the law has to make a lot of sacrifices and needs a very supportive family to succeed.” Greater representation of women at both the bar and bench will create a more empathetic and supportive working environment which will make it easier for the individual to make the choice.

Recently, advocate Shobha Gupta moved the Delhi High Court seeking 33% reservation for women lawyers in lawyer body elections. Sr. Adv. Pinki Anand arguing for Gupta submitted that the only post for women lawyers is lady member executive and they are not part of effective decisions. A study in 2021 noted that only 2.04% of the elected representatives in the 21 state bar councils were women, with no female office bearers. The matter will now be heard on November 27.

Chief Justice Chandrachud talking on the issue of women in the bar council commented, “Contesting elections requires extensive networking, campaigning and soliciting of votes which often leads to the formation and perpetuation of an entrenched old boys club. This environment can act as a significant disincentive for women discouraging them from participating in the elections, let alone engaging in campaigns and successfully winning them.”

Women got the right to practice in India 24 years before Independence. While women lawyers in India have greater acceptance today than Cornelia Sorabji, it still is far from a level playing field.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal