Nandini Khaitan
On a recent visit to a district court in West Bengal, about an hour and a half from Kolkata, I had the pleasure of representing a client in an interesting land matter. I also had the displeasure of discovering that the court building did not have a women’s bathroom. This came as a shock, for such basic facilities are taken for granted by city dwellers in today’s day and age. My instinctive thought was, are there no women vakeels practising here?
This, of course, was not the case, as our local advocate was a feisty woman who could face the senior male members of the Bar with calm and determination. When I asked her and others about the sanitary situation, they pointed to a small enclosure covered on three sides, outside the building but within the court complex (for which they were very thankful). A tarpaulin roof pitted with holes, and a tin door which did not lock, were arrangement enough for the women there. After all, there was a bull sitting outside keeping guard. The men believed there was a women’s toilet in the building, but no one knew where. Usually courts, especially high courts, have a women’s bathroom (to be used at one’s own risk), but a complete absence was a first for me.
In 1916, the Calcutta High Court had refused the enrolment of Regina Guha as a pleader. After a century and more, the situation has improved enough to have women lawyers, but the environment they work in is still not geared to accommodate gender diversity. As a litigator working in a law firm, this got me thinking- what are the challenges for women working in offices, which have the luxury of four walls, and a glass ceiling above?
Post liberalization, both the legal industry and legal education, have seen a sea of change. Some of the most tangible changes include an increase in the number of law students, the transition of family-run law firms to corporatized administration, as well as an exponential increase in women students/lawyers both in litigation and corporate law. Given how there were just a handful of women when I was at law school, it boggles my mind to read that in 2016, for the first time, the number of female enrolments surpassed the male in US law schools.
Also, the number of Indian women graduating from the five-year law programme were equaling the number of men. My experience in law school, just short of sticking out like a sore thumb, would have been different had it been a decade, perhaps, a decade and a half later.
The above changes in the legal profession have also had a cross-effect. Women lawyers have been beneficiaries of the change in corporate law firm culture, which seeks to move from the old boys’ network to a more open place to work within. On the face of it, such change has provided women lawyers with a more congenial work environment, with unheard of salaries (at least in the top dozen law firms), sophisticated clientele who are more restrained in gender discrimination, and a clean and separate sanitation setup where locks replace bovines. Safety and a lucrative job are, therefore, the attractions. According to an article that quotes Chambers & Partners, there is a definite rise in women listings across practices in India, from 12.5 percent in 2010 to 17.34 percent in 2015.
With the increase in size and gender diversity in law firms, the concept of meritocracy should not only be applied, “but should manifestly and undoubtedly be seen” to be applied. I say this because, according to a study entitled Challenges Faced by Indian Women Legal Professionals (the study), a first of its kind study done on women in the legal profession in India, 50% of the women surveyed stated that were asked about their marital status, and 62% of them stated that had been asked if they had children at their job interviews at law firms, companies and NGOs.
The men, to the best of my knowledge, are not asked pointed questions about their children at least. The thought that more women law graduates should translate into more women senior advocates and partners of law firms is far from reality. According to the study, of the 397 advocates designated as Senior Advocates in the Supreme Court since 1962, only 5 are women and of the 1872 Advocates on Record, only 239 are women.
In law firms, as per an article on Legally India, a legal news website, women only make up 15% of the law firm’s senior lawyers. A recent hire at my firm was a woman who topped her law school and wanted to try her hand at litigation. However, the perils of late night conferences (Kolkata is infamous for its midnight conferences), and little work-life balance drove her to the more dignified practice of public policy. We lost a good resource. The good news here is that she is still in the workforce.
In this regard, a spate of women-centric laws in the last few decades, have somewhat helped society deal with the transition of a burgeoning women workforce. The Maternity Benefit Act, 1961 (along with its recent 2017 Amendment) and the Sexual Harassment of Women at Workplace (Prevention and Redressal) Act, 2013 are especially helpful to law firm women.
On comparison with some of the developed countries, India’s new amendment to the Maternity Benefit Act is one of the most progressive laws in the world. The Act allows for 26 weeks of mandatory paid leave, whereas countries like USA allow for 12 weeks approximately with no pay. France permits 16 weeks, Italy permits about 21 weeks, Germany and Japan permit 14 weeks.
Most of these countries do not have the provision for the leave to be fully paid and in some cases, it is social insurance or the Government which picks up the tab. For example, if the child is a Singapore citizen, it is the Government which pays for the leave and provides subsidies for child care. Interestingly, most countries attempt to factor in some form of paternity leave as well in their laws.
Further, Section 11A of the Maternity Benefit Act mandates crèche facilities to be set up in establishments with fifty or more employees. There is a debate on whether the fifty should be read as “fifty women employees” or “fifty employees”. The Supreme Court of India has taken the lead in setting an example of providing adequate crèche facilities for its women workers, lawyers included, by expanding the existing facility to a more spacious one from May 2018 onwards.
For independent litigation practice, there is no such luxury and women often have to take a career break. A study by the Associated Chambers of Commerce and Industry of India (ASSOCHAM), showed that about a quarter of the women do not return to work after childbirth. It is hoped that with the new law, the number of women returning to work will increase.
Working from home and taking maternity breaks are flexibilities more suited to women in law firms and corporations than to independent litigation practice or for that matter, even litigation with a law firm. The study estimates that about 62% of women in law firms and 52% of women working in companies had the flexibility to work in some form from home.
Zia Mody, one of the most brilliant and successful women lawyers of our country says that her breakthrough came when she decided to slow down and switched from counsel practice to corporate practice. Taking a deeper look at the corporate firm culture – banking and finance, insurance, and competition law, emerged as the most female-friendly practice areas. I think the reason may be that these are relatively new areas of practice where women have had a chance to make their mark right from the beginning. The article also observed that women were hardly represented in the listings for practices such as capital markets, employment and shipping. My sense is that though considered as corporate practice, they are less women-friendly as they are established practices where men have had a head start. I have yet to come across any analysis on why certain fields are more women-friendly than others.
However, flexibility itself is a double-edged sword as it could mean less pay and protracted growth for women working in law firms, where profit is God. In a cut-throat work environment, time spent in the office (“billable hours” as they are fondly called) is the currency to measure partner potential. These new laws may make the cost of hiring a woman higher. Women are, therefore, less likely to be hired in situations where they are competing with men, all other things being equal.
A corporate lawyer and a new mother at my firm was very apprehensive when she took the newly instated 26 weeks of maternity leave, on how her career graph would be perceived. Her first assignment on rejoining required long negotiations with foreign parties that meant returning home post 10 pm every day for 3 days in a row. While she was happy with the support she received from her colleagues, what was unpleasant was the social stigma from outsiders including the foreign lawyer who implied that she was rushing through the documents so that she could go home to her child.
This incident with my colleague reminds me of the incident Justice Leila Seth narrated in her autobiography when she gave an opinion on a complicated tax matter at the start of her career. When the company got to know she had given it, the company got another “proper male opinion”. (Incidentally, the solicitor who sought the opinion on behalf of the client is Mr.
Pradip Khaitan, the senior most partner of Khaitan & Co.) The solicitor had taken the opinion of Justice Seth because he considered her a good barrister. So, he sent her opinion along with the brief to one of the best senior male barristers for his opinion. The senior barrister wrote only a short note at the end,
“[A]fter due deliberation, the best I can do is to endorse the opinion given”.
Decades later, a bias still exists despite the new laws and environment. Though a topic for a separate discussion, gender inclusion within the judiciary is a relevant enough topic for the following statistics to be shared. A World Bank report entitled ‘Women, Business and the Law’ finds that in 153 economies where there are constitutional courts, 122 have at least one female justice, and women are chief justices in 26 economies. India ranks the lowest in terms of the number of female judges, among countries which do have a female judge on a constitutional court. Even so, it is better to have these laws, as their absence would result in both entry barriers as well abandonment of the profession mid-way.
As far as the pay of men and women is concerned, most of the top law firms do not discriminate on the basis of gender between equally situated people. The study showed that 71% of the women from law firms stated that there was a pay parity between men and women. What is affected is that the progress of the career graph moves slowly for the woman who takes leave or opts for a work-from-home flexibility. So, while she will get paid what any associate at her position is paid, her male colleague is likely to get promoted before her.
The study also showed, that of the women surveyed only 13.46%, earned Rs.50 lakh and upwards and was attributable to those who worked at corporate organizations and big law firms only. In contrast, independent litigation practice for women was less lucrative and clocked longer hours at least in the starting. The amenities in a law firm, most importantly safety and sanitation provide a big incentive as well. Thus, it is clear that the draw of joining a law firm or going in-house is a strong one.
Having said that, there is still a huge gap that emerges on the career graph of men and women in law firms. Law firms would do well to remember that the efficiency of a woman cannot be undermined. She has the incentive to finish work early to be able to reach home in time for her homemaker duties. The fact that she avoids the rush hour traffic that way is just another smart move on her part.
On speaking to many women lawyers at the time of writing this article, the common strain that emerged was that the women had accepted that their career may move slower and that is a sacrifice they knew they had to make. As a single woman in my thirties, I sometimes wonder whether I should lament my single status or celebrate the growth of my career which is at par with any male lawyer (or so I hope). At a recently held legal awards ceremony, there was a category – ‘Woman Lawyer of The Year’. My dear friend Madhavi Divan who won it, rightly said,
“I never saw myself as a ‘woman lawyer’. I saw myself as just a lawyer. Hopefully, these tags will vanish before long. Men beware – there are many young women out there chipping away, and soon they will be walking away with awards in the general category.”
Nandini Khaitan is a Partner at Khaitan & Co. This piece was originally published as an article in the Women and the Law edition of The Indian Advocate, the journal of the Bar Association of India.