KOCHI: The Indian legal fraternity is witnessing a pivotal moment. The reason: petitions before the Supreme Court for adequate representation of women in the Bar Council of India (BCI) and the 21 state bar councils across the country.
The petitions point out that the 20-member BCI has no women among them. The situation is similar across the country with a few states having one or two female members on the council. Kerala, which prides itself on being a progressive society, has zero women members in the state bar council, along with states like Maharashtra, Madhya Pradesh, and Uttar Pradesh.
The petitions explain the gender issue succinctly. “The legal profession and Bar Councils have traditionally been male-dominated environments. In view of the existent patriarchal system, lady lawyers are unable to dedicate time for such campaigning as they are also compelled to be homemakers, apart from the profession,” reads one of the petitions.
Campaigning, the lawyers explained, was an expensive affair, often leaving aspiring women out of contention. “We keep on hearing very disturbing news about the expenses in Bar Association elections... this is not fit for the institution... it’s very, very unhealthy,” a judge observed.
For women lawyers, the revelations in the petitions come as no shocker. “The legal sector has always been a boys’ club,” says High Court lawyer Sandhya Raju George.
What is more shocking, she adds, is that the Kerala High Court does not have an Internal Complaints Committee (IC) that takes inot account lawyers. “The high court has an IC for its staff. However, there is no such mechanism for the lawyers and other women who spend most of their working hours within the court complexes,” she says.
“It’s ironic that while we fight for public cases, we don’t have a body to hear the complaints of women lawyers. If you look at the gender issues mentioned in the Hema Committee Report, you will find they resonate within the courts as well.”
Sandhya highlights a recent speech by Justice B V Nagarathna, chairperson of the Supreme Court Gender Sensitisation and Internal Complaints Committee, who termed the lack of diversity in the legal profession “disturbing”.
“Out of 788 judges in high courts in India, only 107 are women — that’s just 13%,” Justice Nagarathna noted.
Women constitute only 15 per cent of enrolled lawyers in India, and many of them drop out of the profession during the peak of their careers, primarily due to the difficulty in balancing work and family life.
According to Seema (name changed), a lawyer from Thiruvananthapuram, the situation might be slightly better in Kerala when compared with the national average. “Here, about 28 per cent of enrolled lawyers are women. And if you look at the number of women magistrates, it might be around 70% — considerably high. As magistrate selection is done through an examination, women’s representation has increased exponentially. It’s merit-based, you see,” she chuckles.
But, the lawyers add, the High Court and the Supreme Court still perform abysmally in terms of the number of women judges. “Kerala HC has only four women judges out of 39. Here, merit is not the only consideration,” a lawyer points out.
Now, as the Supreme Court considers 33 per cent reservation for women in bar councils and associations, let’s take a closer look at gender issues faced by women in the judiciary.
Power in numbers
“The lack of women in higher positions and in powerful bodies such as bar councils means the institution lacks gender sensitivity,” says Seema. “Offensive statements from seniors and colleagues, unwanted touches, etc., were some of the rampant issues.”
The Supreme Court issued the Vishakha Guidelines, aimed at preventing sexual harassment in workplaces, as far back as 1997. And the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act came into effect in 2013. “However, women lawyers are still asking for an IC even in 2024,” says Advocate Sandhya. “It’s the duty of the government, judiciary, and society to ensure women have a safe working environment. But why would a patriarchal society and establishment work towards such a change? If we want progress, we need people in power. That’s what women lawyers lack here.”
Notably, the Chief Justice of India D Y Chandrachud recently referred to bar associations and bar councils as an “old boys’ club”.
Elaborating on it, Seema says: “The old boys among lawyers don’t want to share their power. And how would women even win if they stand in elections? When most members are men, they are not going to vote for you, right?”
This old boys’ mentality is the reason for the monumental delay in setting up an IC, says high court lawyer Pooja (name changed). “Some claim the delay is due to practicalities. Lawyers are not salaried employees. We don’t have a ‘boss’ in the traditional sense. We work under senior lawyers, and later start private practices,” she says.
“But that’s not an excuse for not forming an umbrella IC for women who work in court complexes. If a woman is harassed within court premises, she should be able to approach a body that hears such complaints.”
The absence of women in senior positions, whether in law departments, law offices, or as judges in senior courts, leads to skewed judgements, she adds. “Comments on women’s clothing, statements about a wife’s duty, and judgements based on a woman’s profession are symptoms of this bias. And it’s the public who suffer as a consequence,” says Pooja.
Systemic bias
Lawyers, Pooja explains, don’t have fixed working hours; they have to appear for their clients at any time. “Along with this comes the unconscious bias of senior lawyers, who prefer male juniors. They promote men based on gender. Serious and important cases are handed over to male juniors,” she says.
“And look at public prosecutors — there are very few women. Most of these positions are political appointments, and as political parties are bastions of patriarchy, the same bias is reflected here.”
She points to incidents where senior lawyers asked junior women to come to their offices at night, without sufficient reason. There have also been instances of women magistrates being disrespected by lawyers in court.
In one case, a woman prosecutor in Kollam died by suicide after being mentally harassed by a senior. Pooja also recalls a case in the Supreme Court where former chief justice of India Ranjan Gogoi was accused of sexual harassment by a woman staff member — and Gogoi was part of the bench that heard the case suo motu.
“An IC won’t solve everything. Similarly, women being elected to bar councils and associations won’t prevent such crimes,” Pooja concedes. “But it will aid in systemic change, a shift in mentality.”
Advocate P K Santhamma, president of the Kerala Federation of Women Lawyers, agrees that such change will lead to greater acceptance of women in the legal fraternity. “The situation is such that a 33 per cent reservation for women will go a long way. From zero to at least one-third of the bar council means that many more women will come forward to practise,” she explains.
Santhamma assures that the draft for setting up the IC is in its final stages. “Soon, an IC will be in place, albeit late. Now, if there is a positive judgment from the Supreme Court, the legal fraternity can be hopeful of enhancing diversity,” she says.
What is Bar Council of India
It is a statutory body created by Parliament to regulate and represent the Indian bar.
What are State Bar Councils
Established under Section 3 of the Advocates Act, these act as regulatory bodies of the legal profession and education within the state. They also act as representatives of advocates and in their interests.
Women in Bar Councils
2.04% A 2021 study by Bar and Bench revealed that only 2.04% of the elected representatives in State Bar Councils are women
21 Total number of State Bar Councils
In state bar councils
0 - Gujarat, Delhi, Karnataka, Kerala, Punjab & Haryana, Maharashtra & Goa, Rajasthan, Uttarakhand, Uttar Pradesh, West Bengal
1 - Andhra Pradesh, Himachal Pradesh, Jharkhand, Madhya Pradesh, Tamil Nadu & Pondicherry, Telangana, Assam, Nagaland, Mizoram, Arunachal Pradesh and Sikkim
2 - Bihar