By : Meghana Narayanan

Abstract:

This article critically examines the legal mandate for women directors in India through a Critical Legal Studies and feminist lens, arguing that it is largely tokenistic. While the provision has increased female representation, it fails to address structural barriers hindering women’s participation in corporate leadership. The article highlights compliance issues and the persistence of patriarchal norms in the boardroom, emphasising the need for systemic reforms beyond mere quotas. It concludes by advocating for transparency measures, mentorship programs, and broader societal changes to foster genuine gender diversity in boardrooms.

Introduction

Over a decade has passed since the legal mandate for women directors was introduced, heralded as a breakthrough for gender diversity in corporate leadership. Despite this ambitious objective, an in-depth examination of the provision and its real-life implementation reveals its inadequacy in driving structural change. This article critiques the legal mandate for women directors in the boardroom through a Critical Legal Studies and feminist lens, arguing that the provision is tokenistic in its approach and reinforces existing hierarchies, thus failing to bring about meaningful, substantive change in attitudes toward boardroom diversity and the inclusion of women in high-level corporate positions.

The Legal Mandate: Impact and Compliance

The 2013 legislative overhaul of the Companies Act, which replaced the 1956 Act, sought to enhance corporate governance standards by underscoring companies’ role in advancing broader societal objectives, including women’s empowerment, through provisions such as the statutory mandate for women directors. A conjoint reading of Section 149(1) of the Companies Act, 2013, Rule 3 of the Companies (Appointment and Qualification of Directors) Rules 2014 and Clause 49 of the (Securities and Exchange Board of India) SEBI Listing Agreement, establishes that any listed company or public company having a turnover of Rs. 300 Crore, or a paid-up share capital of Rs. 100 Crore, must ensure the appointment of at least one woman director. This was a welcome provision since, historically, corporate leadership positions have been overwhelmingly dominated by men.

The inclusion of women in boardrooms is undoubtedly important, as it fosters company growth through diverse perspectives and strengthens the firm’s reputation for inclusivity. A 2014 Times of India Study underscored this, by revealing that companies with women directors experienced a positive Return on Equity. Representation in corporate leadership positions increases women’s network centrality in corporate governance. As women take on roles across multiple boards, they become more integrated into decision-making networks, facilitating the exchange of information, corporate strategies, and best practices among firms. While the percentage of women directors has increased nearly three-fold post the mandate, a vast number of companies have failed to comply with this requirement, citing the inability to find women that are qualified enough for the role. 

At the outset, the effectiveness of this provision is undermined by its limitation to a specific class of companies. It remains unclear why the mandate has not been extended to private companies—does boardroom diversity not hold equal importance in these entities? Private companies are direct contributors to economic growth and bear a certain responsibility to the public, even if they do not directly receive public investments. Furthermore, the only penalty that awaits non-compliant companies is a general fine that may extend to Rs. 5,00,000 under Section 172 of the Companies Act, an amount that is nominal for large public companies and unlikely to serve as a strong deterrent. The lack of specific regulations governing the appointment of these women directors has also led companies to appoint women from promoters’ families. This practice undermines the objective of the provision by excluding qualified external women who would meaningfully benefit from and truly require the opportunities envisioned by the mandate. As such, a critique of the provision itself must be undertaken to grasp its potential shortcomings in genuinely enhancing female representation in corporate India. 

Tokenism and the Illusion of Inclusion

Proponents of the Critical Legal Studies (“CLS”) school of thought posit that the law must be studied with consideration for its social, political and moral contexts, hence rejecting legal objectivity, neutrality, and universality. Studying the woman director mandate with a CLS lens reveals that such a provision prescribes a tokenistic inclusion of women rather than addressing deeper structural inequalities that keep women from reaching decision-making roles in the first place. As a result, companies have treated the mandate as a mere ‘tick-the-box’ exercise, appointing a woman director solely for symbolic compliance, and perceiving such compliance as sufficient for gender inclusivity within the company. Instances of such tokenism have become evident where companies appoint a woman as a director to fulfill regulatory requirements, only to later assign a male alternate director to attend board meetings in her place, thereby circumventing the intended goal of the mandate. 

CLS theorists utilise trashing techniques to show that current legal discourse has not necessarily created the best possible conditions for a just and efficient society, and what is portrayed as ‘necessary’ within these discourses are arbitrary and are often simply choices amidst multiple alternatives. Viewed through the lens of Critical Mass Theory, the mandate for a single woman director raises questions about the threshold required to ensure meaningful female representation and gender justice in corporate governance. Research suggests that a critical mass—typically around three or more women—is necessary to influence boardroom dynamics and decision-making effectively. Yet, the law arbitrarily prescribes just one, without justification for how this number was determined. Alternatives could have included a staggered quota system increasing women’s representation over time, rotational leadership roles for women in key board committees, and independent oversight mechanisms. This reinforces the notion that women’s inclusion is merely tokenistic.

Kaisa Snellman, a professor of organisational behavior, highlights a key issue with such quotas—when a woman is appointed under a mandatory requirement, there is often a perception that she is there solely to fulfill the quota rather than on merit. This perception weakens her authority on the board and restricts opportunities for genuine leadership. A Harvard study also revealed that most appointed women directors are not placed on critical committees such as nomination and compensation. Furthermore, regardless of her designated title, the patriarchal environment within the boardroom may persist. As the majority of the board remains male, she may be more susceptible to external influence due to her minority status. This limited representation diminishes the impact of her perspectives. 

Structural Barriers and Reinforcement of the Status Quo

Analysing the mandate for women directors through a CLS lens can also reveal how this provision, rather than dismantling structural inequalities, often reinforces existing power hierarchies under the guise of progress. CLS contends that legal discourse reinforces these existing social structures and portrays them as ‘natural.’ It is therefore important to break down legal discourse, uncover its workings, and interpret it differently to drive social change. When the mandate requires only one woman director, companies are likely to appoint just one, despite no restriction on having more. By normalising the presence of only one woman, the law subtly upholds the status quo, framing the existing composition of the boardroom—primarily male—as the natural and accepted norm. CLS further propounds that laws assign roles to individuals. In the context of the mandate, the roles constructed therein would be that of ‘the male directors, appointed through merit’ and ‘the woman director, appointed through a mere mandate.’ These laws then shape social experiences and everyday behaviour, much like an instruction manual. By positioning the woman director as an outsider whose presence is a legal requirement rather than a natural outcome of her qualifications, a feeling of isolation and limited mobility is fostered. 

Catharine MacKinnon’s dominance theory critiques how legal reforms operate within a male-centric paradigm, reinforcing male dominance rather than dismantling it. The mandate reflects this by merely inserting women into pre-existing power structures without challenging institutional biases. As MacKinnon argues, true equality cannot come from treating women as the “same” or “different” from men under male standards—it requires dismantling structural barriers that sustain gendered subordination. Cultural and social norms, along with traditional gender roles, continue to hinder women’s advancement in senior leadership positions. A 2010 report by Community Business and Standard Chartered Bank revealed that women directors often find the patriarchal nature of boardrooms to be a significant barrier to their professional growth. Additionally, the prevalent ‘leaky pipeline’ issue in India, which is a metaphor for the loss of women from professional careers, coupled with the overworking corporate work culture, often compels women to prioritise domestic roles over corporate leadership. Therefore, the law must focus on challenging these underlying societal structures that compel women to choose one role over the other, rather than merely mandating symbolic representation. 

Conclusion and the Way Forward

While the mandate for women directors has marked a step forward and has led to a rise in the number of women directors, a 2022 Deloitte report shows that, as of 2021, women occupied only 17.1% of board seats in India—lagging behind the global average of 19.7%. Therefore, rather than mandating tokenistic involvement, an approach akin to that of the United States, Australia, and the United Kingdom can be undertaken. In the United States and Australia, the government has mandated disclosures pertaining to the criteria and selection of directors, the number of women directors, and the steps taken toward ensuring gender diversity in the boardroom. Similarly, in the UK, companies are required to publish a statement explaining why there are no women on their boards if that is the case. These measures ensure greater transparency and, in turn, push companies to proactively foster gender diversity based on objective criteria rather than merely filling a quota. 

Lasting progress requires a shift in societal attitudes toward women in leadership, alongside targeted policy efforts to support and sustain gender diversity in corporate governance. Training, mentorship, familial support, and institutional initiatives are key factors in enabling women to assume corporate leadership positions—areas that should be actively promoted through government policy efforts. For women to reach their full potential, mere legislative adjustments are insufficient. True equality requires that women have equal power in both social and private spheres, with the autonomy to make their own choices. Tokenistic measures may check a box, but only meaningful systemic reform can break the cycle of exclusion. 

Author’s bio

Meghana Narayanan is a third-year BA LLB (Hons.) student at Jindal Global Law School. Her interests include examining the intersection of law and gender, and how corporate structures shape women’s rights.

Image Source : https://www.fortuneindia.com/long-reads/boardroom-win/106162