Despite recent efforts to expand women’s participation in the law-making process, the under-representation of women in the higher judiciary remains a critical issue in India. Women make up only 11.5% of judges in High Courts and 6% in the Supreme Court, with similar gender disparities in the Bar Council. This paper explores the underlying factors contributing to these disparities, including societal norms, patriarchal biases, and institutional obstacles such as limited career support and persistent gender stereotypes. It also discusses potential solutions like policy reforms, mentorship programs, and educational initiatives that promote gender diversity and inclusion. Addressing these issues is vital to ensuring equal opportunities and a more balanced legal profession.
Keywords: Gender disparity, judiciary, legal profession, women in law, patriarchal bias.
We must talk about the low number of women in the higher judiciary as we work to create a society where all genders are treated equally. In other areas, like the bar and bench, more women are still needed to represent one of the cornerstones of democracy, despite the introduction of reservations in Parliamentary and Legislative Assemblies lately to expand the participation of women in the law-making process. One of the most significant social foundations is the judiciary, yet there is a problem with the under-representation of women in this sector.
Just 11.5% of judges in High Courts and 6% of justices in the Supreme Court are women, according to the National Judicial Data Grid. Nonetheless, the proportion of female judges is higher—at 30%—in the subordinate court. In the Bar Council, the issue is even more troubling. Merely 15% of advocates are female, and 2% of women are state bar council representatives. The Bar Council of India does not have any female representatives.[1]
These low numbers give rise to grave concerns about the opportunities afforded to women in society. It is reasonable to argue that stigma still exists in society, as seen by the low number of women serving on bars and benches. There are several causes for this low level of participation. Lower participation can be attributed in large part to India’s patriarchal society. This discrepancy is caused by a variety of causes, such as institutional biases, cultural norms, a lack of support networks, and preconceived notions about the roles and capacities of women. Just looking around us allows us to come up with several ideas. The following factors are linked to women’s low representation in the legal profession.
First of all, women’s access to education and career prospects is frequently restricted by societal norms and traditional gender roles. The idea that the legal profession is predominantly a male realm is perpetuated by the historical discouragement of women from pursuing careers in law.[2] This kind of thinking is pervasive in society and has an impact on attracting and keeping women in the legal profession. We might conclude that one of the factors influencing women’s poor involvement in the legal profession is gender stereotypes.
Second, the legal industry is well-known for its strict hierarchical structures, lengthy workdays, and demanding character. These elements can present serious difficulties for women, particularly those balancing obligations to their families. The issue is made worse by the absence of family-friendly policies and support systems in legal offices and judicial settings, which hinders women’s ability to progress in their careers.[3]
Thirdly, prejudice and unconscious bias are still prevalent in the legal industry. Prejudices and preconceptions against women frequently damage their reputation and skill as legal practitioners. Due to their gender, they could face obstacles to career advancement include being passed over for promotions or excluded from leadership roles. In addition, a cycle of inequality is maintained by the underrepresentation of women in top roles within the legal industry. Women are underrepresented in the legal profession because their lack of visibility in positions of authority discourages prospective female judges and solicitors.[4]
It will take coordinated efforts at several levels to address these issues. Legal institutions must put in place measures to address unconscious prejudice, mentorship programmes, and flexible work schedules, among other rules that support gender diversity and inclusion. Targeted initiatives are also required to assist the progress of women in the legal field and to inspire more of them to pursue professions in it.
By giving men and women the same opportunity to pursue legal education and by creating an atmosphere that challenges gender stereotypes, educational institutions also play a critical role in advancing gender equality in the legal industry. In addition, promoting awareness of the value of gender diversity in the legal field and dispelling antiquated notions about women’s skills are crucial first steps in developing a more equal and inclusive legal system. This paper aims to investigate the comprehensive reasons behind the low presence of women in the bar and bench. Additionally, it will explore potential remedies that could encourage women to get more involved in the field.
“When I’m sometimes asked, ‘When will there be enough [women on the Supreme Court]?’ and I say, ‘When there are nine,’ people are shocked. But there had been nine men, and nobody’s ever raised a question about that.”[5] Ruth Bader Ginsburg, Justice of the Supreme Court of the US.
The 65th session of the Commission on the Status of Women (CSW65) was convened by the UN in March 2021. The Commission has been the main international intergovernmental organisation solely focused on advancing women’s empowerment and gender equality since 1947.[6] In order to advance women’s rights in the spheres of politics, the economy, society, and education, the Commission drafts proposals to the Economic and Social Council. In addition, the Commission advises the Council on pressing issues pertaining to women’s rights that demand immediate attention and the necessity of achieving equal participation for men and women in decision-making in order to advance democracy and realise sustainable development objectives.[7]
The Commission was given more authority by the Council in 1996 to oversee and analyse the implementation of the Beijing Declaration and Platform for Action, keeping a close eye on developments and issues. Among other things, the Beijing Declaration emphasizes the significance of women’s advancement and empowerment, including their right to freedom of thought, conscience, religion, and belief. This helps meet the moral, ethical, spiritual, and intellectual needs of both men and women, either alone or in community, and ensures that they can fulfil their own goals and realise their full potential in society.
The Beijing Declaration highlights the importance of women’s empowerment and their equal participation in all areas of society, including decision-making and power access, in addition to highlighting women’s rights as human rights.[8] These elements are crucial for achieving global equality, development, and peace. Within that framework, the Commission’s 65th session examined more general issues pertaining to women’s full and effective participation and decision-making in public life. It also launched the groundbreaking Generation Equality campaign, which advocates for women’s right to participate in decision-making across the board in public life.
Despite significant progress towards closing gender gaps and inequalities, the Beijing Declaration and Platform for Action have not lived up to the commitments made by Member States in 1995. In certain areas, the situation appears less promising than it did in 1995, according to the results of a 25-year review and appraisal of the implementation of these documents.
Women began to enter the legal field at a remarkable pace in the 1970s, as has been widely reported. Although the percentage of women in the legal profession is rising worldwide, national and cultural differences exist in their advancement. In 2013, a study was conducted in 86 countries, which represented 80% of the world’s population in 2010. The study included regions with limited information on the legal professions, such as eight countries in Sub-Saharan Africa, East and South Asia, the Middle East, North Africa, and Latin America and the Caribbean. This study elaborates on how women started to enter the legal profession globally in the 2000s and presents a descriptive pattern about what the author terms “lawyer feminization.”[9]
The gender gap is still very much present in the legal field, even with the increasing number of women entering the field. For example, Ganguli, Hausmann, and Viarengo (2020) have noted in a recent paper that “women get in, but not up in the legal profession around the world.” In comparison to other professions, the legal sector has some of the biggest gender discrepancies in leadership roles, as the authors explain. The only job positions where gender parity has been nearly attained are entry levels.
For instance, the authors noted that “over time, more women were hired in entry-level positions in some countries with large initial gender gaps, such as France.” However, in certain nations, including Sweden and Japan, no new female solicitors were employed for entry-level positions. In the majority of countries, the proportion of female associates has increased between 2004 and 2011. There is a sizable gender disparity in senior jobs, despite the fact that the share has reached 50% or higher in nations like Poland, Belgium, the UK, Sweden, and Hong Kong. Only Sweden has at most 50% of female partners in law firms in 2011, with no female partners at all in numerous other nations.[10]
It is the duty of judiciaries to guarantee that social conflicts involving laws, politics, ideas, and values are settled amicably, rationally, and fairly in addition to upholding order in their nations. Furthermore, although while the system of checks and balances is crucial to ensuring the stability of the legal system, the courts ultimately have the responsibility for upholding and protecting the Rule of Law (Wohl, 2021). A country will grow and advance when its legal system upholds responsibility and serves to safeguard all of its residents, particularly the most vulnerable segments of society.
Women’s participation in public life, including the court, is recognised internationally as a fundamental human right and is enshrined in the Beijing Declaration. The UN has provided a wealth of data regarding the pertinent role that women play in the global administration of justice. The advancement of gender justice in society as a whole and the growth of robust, autonomous, approachable, and gender-sensitive judicial institutions are both accelerated by the participation of women in the judiciary. In addition, innovative rulings by female judges have revolutionised the criminal justice systems, particularly in instances involving forced marriage, rape, and sexual assault.[11]
The inclusion of women in the judiciary has also emerged as a critical goal in the global effort to increase the responsiveness, inclusivity, and participatory nature of decision-making at all levels.
An increasing corpus of empirical research also suggests that by addressing women’s unique legal requirements on a variety of topics, female judges enhance women’s access to justice. Senior-level appointments of women to the judiciary can contribute to the eradication of gender stereotypes and create a supportive environment that inspires women to fight for their rights (OECD, 2017). Furthermore, people associate more representative governance with a judiciary that is gender diverse. A “balanced approach to enforcing the law and implementing equality, which in turn builds public trust and confidence in the state,” is guaranteed by gender parity in the judiciary, as noted by Edroma.
Apart from their distinct positions, female judges have a crucial role in governance, particularly in relation to fairness, transparency, honesty, and the enhancement of the rule of law. The presence of women is crucial for the legitimacy of the judiciary and for fostering public trust, as the president of the International Association of Women Judges has pointed out. Recent research from the UN (2019) indicates that female judges are more immune to political pressure and corruption, which enhances the judiciary’s independence, integrity, and standard of judgement. Diversity of opinion is not only a politically correct topic; it also raises issues of institutional legitimacy both nationally and internationally.
Apart from the Beijing Declaration, states have been obligated by international instruments to implement policies, tackle wider concerns related to gender inequality, and eliminate institutional, structural, and legal barriers that prevent women from having equal access to the justice system.
State parties, for instance, “shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country,” according to Article 7 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).[12] Women must take part in the legislative, judicial, and executive branches of political power, according to the Convention. This clause requires nations to guarantee women’s access to the legal system, particularly in those where equality is still a goal.
The Sustainable Development Goals (SDGs) state that in order to achieve gender equality by 2030, states must move quickly to remove the barriers that have prevented women from participating in both the public and private spheres and caused discrimination.[13] These steps include reworking their legal systems and passing laws that proactively advance equality between men and women. In addition to being a fundamental human right, the SDG 5 emphasises the significance of attaining gender equality and women’s empowerment because of its cascading implications on all other development areas (United Nations, 2021).
The Indian judiciary has historically been dominated by men, despite being one of the most esteemed and potent arms of the government. The obstacles that women encounter under this system are numerous and frequently demoralising. The ingrained patriarchal mentality that has long pervaded Indian society is one of the main obstacles. It is challenging for women to obtain respect and recognition in the legal system since they are frequently perceived as emotional and incapable of making difficult decisions.[14]
The absence of assistance from their male coworkers presents another difficulty for women. Compared to their male counterparts, female judges are not afforded the same possibilities for career advancement and are frequently left out of significant conversations. This may be because there aren’t many women in positions of authority, which makes it harder for them to speak up for other women and for themselves. Another explanation for it is the institutionalised bias that prioritises men over women.[15]
In addition, women who choose to work in the legal system frequently experience social pressure to conform to stereotypical notions of what it means to be a homemaker or career. Their inability to maintain a healthy work-life balance may impede their ability to advance in their careers.
Many women have overcome these obstacles and achieved great progress in the Indian judiciary system, shattering the glass ceiling. It is hoped that more women would be able to overcome the obstacles and have a beneficial influence on the system with the adoption of laws that support gender equality and encourage women to seek professions in the judiciary. We’ll attempt to highlight a few of the factors that contribute to women’s low representation in the legal profession:
One major factor contributing to women’s decreased participation in the legal profession is gender stereotypes. The difference in wages between men and women is enormous. Beyond the difference in salary, women frequently receive different employment than males. Gender norms can be the cause of this at times. Jobs in the health, education, and social services sectors that align with the gender stereotype of nurturing or caring are frequently filled by women. However, men are more likely to work in physically demanding fields including engineering, construction, mechanics, and manual labour. According to data from the Institute for Women’s Policy Research, 43% of women and 25% of men respectively work in sectors like healthcare, education, and leisure.[16]
Legal profession demand the very significant amount of time from its practitioner. The working hours in legal profession also is not limited. Advocates works way beyond the court hours to best represent their client. In India, due to gender stereotype, this becomes challenging for majority of women to even give her best, not because of lack of ability rather for lack of time. Women have to dedicate time in many different things which male member can avoid. It is stigma that women should not work during late hours, women should take care of their children, women should take care of home, etc. All these things appears as a barrier in participation of women in legal profession.
There is face value among senior advocates in India. It is highlighted by Prof. Aparna Chandra in her book the Courts on trial that face value plays a very important role in Supreme Court in admission of SLPs. Predominantly male members have more face value due to long term performance in the court. The male advocate starts the practice at young age and practice till the end of life. However, women due to several factors have to take multiple breaks during pregnancy, family issues, etc.[17]
Opportunities for leadership are scarce. Men are more likely than women to be promoted to leadership roles in their areas, even in those where gender norms do not dictate that men dominate. For instance, according to two recent polls (one state and one of the top 100 US hospitals), women make up 75% of the workforce in healthcare, but they only occupy roughly 12% of chief executive officer roles in US hospitals (Keogh Hoss et al., 2011, pg. 59). Given the large number of women who are employed in the industry and who are vying for executive officer roles, it stands to reason that there would be a large number of female leaders.
Nevertheless, we observe that many women are being denied the chance to hold executive officer positions because men are being selected for them rather than elevating these women in the field to leadership positions. This is only one instance of how women are thriving in the workforce, but men are the ones in positions of leadership. Furthermore, according to data from the U.S. Bureau of Labour Statistics, across all business categories in 2010, women held only 25.5% of CEO roles and 29.9% of general and operational manager jobs. (Keogh Hoss et al., 2011, pg. 63). Women still experience additional inequalities, such as the salary gap—women CEOs made 74.5% more than men CEOs—even in leadership roles.
Recent times have seen some advancements. Women’s share of management roles increased to 39.2% in 2015. (U.S. Government Accountability Office, 2022). However, these advancements are limited to professions where women predominate.
According to the U.S. Bureau of Labour Statistics (2016), the fields with the highest percentage of women in management positions were medical and health services, human resources, social services, and education administrators, with 73.7%, 73.3%, 67.4%, and 65.7% of women in these roles, respectively. In contrast, women make up less than 20% of managers in fields involving manual labour, such as engineering, architecture, and building. The main reason why women hold leadership roles is because they are far more prevalent in those industries. However, the question of how many women hold leadership roles goes beyond simple statistics.
“Managers rate women as having less promotion potential than men,” according to Roth et al. (2012) (Lazear & Rosen, 1990 as referenced in Stamarski & Son Hing, 2015, pg. 5). Managers are less inclined to promote women than males when both parties have the same degree of qualifications (Lazear & Rosen, 1990 as referenced in Stamarski & Son Hing, 2015, pg. 5). Furthermore, the average pay disparity for women is eighty-two cents for every dollar made by males; this is worse than the seventy-one cents earned by women in managerial positions compared to their male counterparts (U.S. Government Accountability Office, 2022). Thus, even though there are some women in leadership positions, the number of them is still low.
Similarly, this gender gap illustrates how gender differences frequently feed off one another, particularly in this case when a lack of leadership and managerial roles contributes to the salary gaps that women currently face.
As we have already discussed the need of more women judges in higher judiciary. It is pertinent to discuss participation in other sectors as well. It is critical in these areas to improve to give effect to the gender equality and avoid mere lip service to the idea of gender equality.
Implementing Individual Changes
As sexism and gender stereotypes are major contributors to gender disparities and happen at the individual level, one suggested remedy to these disparities is to address them at the individual level. At the individual level, Fisher proposes that one way to address the issue is for lawyers to help and empower one another, so enabling other lawyers to address the various layers of oppression (Fisher, 2021, pp. 112-114). According to Fisher (2021), women possess the resilience to confront injustice head-on, instead of allowing it to persist.
The shifts here are that women must be able to advocate for themselves as well as that lawyers in the legal profession must empower and assist one another more in order to end needless tyranny. Change at the institutional level might also occur if we start at the individual level and work our way up. However, there is no evidence of Fisher’s solution’s potential effectiveness because it was not stated as being adopted elsewhere.
Although Fisher thinks this strategy is a start in the right direction, she also thinks it will never make the legal profession flawless. While this strategy is helpful in altering people’s perspectives, gender inequities cannot be resolved by merely urging people to confront their implicit and overt sexism as well as their gender stereotypes. As a result, putting additional solutions into practice is crucial.
Law School Classes and Professors
Changes to law schools, such as the addition of classes that teach about gender discrepancies within the legal profession and the appointment of more women law school professors, are another suggested solution for gender disparities in the legal profession. It is necessary to address educational inequality since it “creates and reinforces inequality in the workplace” (Brenner, 2014, pp. 274). Data show that women only make up 20% of law school deans and 28% of tenured law school professors, which reflects educational inequality (Brenner, 2014, pp. 275).
Inequalities in the practice of law may persist if the educational environment where aspiring solicitors learn about the law and society is dominated nearly exclusively by men (Brenner, 2014, pp. 275). Using education to alter people’s perceptions on an individual basis is one way to solve this problem.
Furthermore, scholars have suggested that law schools include courses on gender, leadership, and equality activities. These kinds of classes have been effectively introduced in two schools. The first was at the University of Maryland, where students may “engage in critical thinking about cutting-edge issues in gender and leadership” through the Law and Equality programme.
Changes Within Law Firms
Some have suggested that law firms should adjust their policies to reduce gender inequities, regardless of whether changes are done at the individual or educational levels. For example, Fisher suggests alterations to regional legal firms and bar associations in addition to individual adjustments. She contends that these adjustments would fundamentally transform the gendered stigmas associated with women in law, which influence behaviour (Fisher, 2021, pp. 107-109). Women will face less gender discrepancies, for instance, if businesses start to make measures to eliminate these sexist difficulties, including giving all women 90 days of paid maternity leave (Fisher, 2021, pg. 109).
Fisher suggests that a sense of professional closeness within enterprises should be introduced to develop a tighter-knit community in support of these policy changes. This community will be more efficient since everyone will respect and care for one another while still being able to complete tasks (Fisher, 2021, pg. 110). Fisher also thinks that employees who perceive arbitrary distinctions like age and gender as significant ought to be disciplined (Fisher, 2010, pp. 111). According to Fisher, we will therefore start to see less gender discrepancies and stigmas if legal firms start enforcing policies and diversity trainings that mandate people learn how to respect women and strive to eradicate artificial distinctions within their companies and among local businesses.
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[1] Supreme Court of India, State of the Judiciary, Report on Infrastructure, Budgeting, HR and ICT, https://main.sci.gov.in/pdf/CRP/15122023_082223.pdf (last visited Mar. 28, 2024).
[2] Naznin Tabassum, Gender Stereotypes and their impact on Women’s Career, Sage Journals https://doi.org/10.1177/2277975220975513 (last visited Mar. 28, 2024).
[3] Gerald P. Lopez, Transform- Don’t just tinker with- Legal Education, NYU, https://www.law.nyu.edu/sites/default/files/upload_documents/Jerry%20Lopez%20re%20Transforming%20Legal%20Education%20%28Part%20II%29.pdf (last visited Mar. 29, 2024).
[4] Id.
[5] Ruth Bader Ginsburg, Justice of the Supreme Court of the US.
[6] UN Women, https://www.unwomen.org/en/csw/csw65-2021#:~:text=The%20Commission%20on%20the%20Status%20of%20Women%20adopted%20agreed%20conclusions,girls%E2%80%9D%20on%2026%20March%202021. (last visited Mar. 29, 2024).
[7] Id.
[8]UN Org., https://www.un.org/womenwatch/daw/beijing/platform/declar.htm (last visited Mar. 29, 2024).
[9] Monica Castillejos, A need for change: Why do women in Judiciary matter?
[10] Id.
[11] Beijing Declaration and Platform for Action (1995). The Fourth World Conference on Women. 1995.
[12] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, http://www.un.org/womenwatch/daw/cedaw/cedaw.htm.
[13]UN, https://sdgs.un.org/goals/goal5 (last visited Mar. 29, 2024).
[14] Naznin Tabassum, supra note at 29.
[15] Id.
[16] Olivia M. Sanders, Gender Disparities Present within the Lega
[17] Aparna Chandra, Courts on Trial (Penguin 2023).
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