The Singapore Law Gazette

Bridging the Gender Gap in India’s Disputes Landscape

Just over a century ago, only men were permitted to be admitted as lawyers in India. Women were barred from practising law as pleaders before courts by reason only of their sex.¹Legal Practitioners (Women) Act of 1923 (LP Act 1923). In 1916, the Calcutta High Court in In Re: Regina Guha,²In Re: Regina Guha v Unknown, 1916, available at” https://indiankanoon.org/doc/1090509/#:~:text=Except%20as%20hereinafter%20provided%2C%20no,may%20be%2C%20pursuant%20to%20the. rejected the application of a woman for enrolment as a pleader. In 1921 the Patna High Court in In Re: Sudhansu Bala Hazra,³In Re: Miss Sudhansu Bala Hazra v Unknown, 1921, available at: https://indiankanoon.org/doc/1246400/. disallowed the application of a woman who qualified in all respects for enrolment but was found to be “debarred by the disability of sex”. The Calcutta High Court and the Patna High Court held that a woman, despite being fully qualified, was not entitled to enroll as an advocate as she was not a “person” under the erstwhile Legal Practitioners’ Act, 1879.⁴Section 5 of the Legal Practitioners’ Act, 1879 (Act XVIII of 1879) read in the context of usage of qualifiers ‘he’, ‘him’, and ‘his’. Women practitioners were particularly necessary in India during that period, especially in provinces where the purdah system was stringently followed. Under the purdah system, purdahnashin women remain veiled and are forbidden from speaking with men, consequently, these women who were often parties in valuable property disputes could not instruct lawyers of the other sex and fell prey to dishonest practices.⁵Nishah Malik, The Amazing Career of Indian Lawyer Cornelia Sorabji (British Online Archives, 2023), available at: https://britishonlinearchives.com/posts/category/notable-days/633/cornelia-sorabji-indias-first-female-lawyer#:~:text=By%201924%20India%20had%20opened,the%20rest%20of%20her%20life.

The tides turned with the passage of the Legal Practitioners (Women) Act of 1923 (1923 Act) which overturned discriminatory rulings that explicitly denied women the right to practice law. The 1923 Act affirmed that “no woman shall, by reason only of her sex, be disqualified from being admitted or enrolled as a legal practitioner or from practising as such”.⁶Jhuma Sen, The Indian Women Who Fought Their Way into the Legal Profession (The Wire, 2019), available at: https://thewire.in/law/women-lawyers-history-india . This landmark legislation empowered women to pursue careers in the legal profession, breaking down gender barriers, and paving the way for a more inclusive legal system. In this article, we explore gender diversity in the legal landscape, or lack thereof, in India and suggest some steps to bridge this gap.

Reality Check – Mapping the Representation of Women in Dispute Resolution in India

As India marks the centenary of the passage of the since repealed 1923 Act, it is disheartening to admit that despite progress made, the discourse on women’s empowerment in law is still ongoing and there is much work to be done to create a truly equitable and inclusive legal profession. A stark reflection of the historical exclusion of women is that the Supreme Court of India had remained an all-male bastion for decades. From the 1950s to the early 1980s, no woman was appointed to the Supreme Court.⁷Gauri Kashyap, 4% of Supreme Court Judges of All Time are Women (Supreme Court Observer, 2023) available at: https://www.scobserver.in/journal/4-of-supreme-court-judges-of-all-time-are-women/. It was only in 1989 that the first woman judge, Justice M Fathima Beevi, was appointed to the bench. A mere 4% of the judges of the Indian Supreme Court thus far have been women. In the 73 years since its establishment, only 11 women have served as judges of the highest court of the nation.⁸Ibid. The Supreme Court has yet to have a woman Chief Justice. While Justice B V Nagarathna is likely to make history as India’s first woman Chief Justice of the Indian Supreme Court, unfortunately, her tenure is expected to be brief, lasting only 36 days before she retires.⁹Ibid.

The representation of female judges across various High Courts in India follows a similar trend. Currently, out of 754 High Court judges, only 106 are women.¹⁰Gauri Kashyap, Representation of women judges in High Courts has improved only by 3 percent in three years – August 2024 (Supreme Court Observer, 2024), available at: https://www.scobserver.in/journal/representation-of-women-judges-in-high-courts-has-improved-only-by-3-percent-in-three-years-august-2024/. As of August 2024, a mere 14% of sitting High Court judges in India are women. Despite recent years seeing a slight uptick in the number of female judges from 11% in 2021 and 2022¹¹Gauri Kashyap, Does the Judiciary Remain a Man’s World? (Supreme Court Observer, 2022), available at: https://www.scobserver.in/journal/does-the-judiciary-remain-a-mans-world/; Gauri Kashyap, D11.7% of High Court Judges are Women (Supreme Court Observer, 2022), https://www.scobserver.in/journal/11-7-of-high-court-judges-are-women/. to 13% in 2023,¹²R Sai Spandana, Only 107 of 788 Sitting High Court Judges are Women (Supreme Court Observer, 2023), available at: https://www.scobserver.in/journal/only-107-of-788-sitting-high-court-judges-are-women/. the progress remains alarmingly slow.

Women remain significantly underrepresented even among Senior Advocates designated by the High Courts and Supreme Court in India. For the first time since its establishment, the Supreme Court designated 11 women advocates as Senior Advocates out of a total of 56 senior designations in 2024.¹³Debby Jain, Supreme Court Designates 11 Women Lawyers As Senior Advocates, Highest Ever In One Go (Live Law, 2024), available at: https://www.livelaw.in/top-stories/supreme-court-senior-designation-eleven-women-advocates-247201#:~:text=Debby%20Jain&text=In%20a%20historic%20first%2C%20the,senior%20designations%2C%20eleven%20are%20women. In terms of comparison, when the apex court last conferred designations in 2019, out of 37 Senior Advocates, only six were women. From 1969 to 2021, the Delhi High Court conferred the senior gown to 292 advocates, of whom only 15 were women, constituting a mere 7.7% of the total designations.¹⁴Giti Pratap, Building careers and braving stereotypes: The new Delhi High Court-designated women Senior Advocates (Bar and Bench, 2024), available at: https://www.barandbench.com/columns/building-careers-and-braving-stereotypes-the-new-delhi-high-court-designated-women-senior-advocates While recent years have witnessed some progress, a wide gap persists. In November 2024, the Delhi High Court designated 70 lawyers as Senior Advocates which included 13 women lawyers. While this may be termed as relative progress, it is a far cry from adequate representation as women still account for a relatively small proportion of Senior Advocates.

Only 15.3% of Indian lawyers are women.¹⁵Satyendra Wankhade, Parliament Watch: Only 15% of Indian lawyers are women; 64 Supreme Court Collegium proposals still pending with Centre (Bar and Bench, 2023), available at: https://www.barandbench.com/news/parliament-watch-only-15-of-indian-lawyers-are-women-64-supreme-court-collegium-proposals-still-pending-with-centre. Working conditions make it exceedingly hard for women to continue in the profession, a survey by Reuters revealed that around 60% of women lawyers leave practice in the age group of 35–55, which may arguably be the prime of their careers.¹⁶Jenna Greene, Don’t blame baby: Survey finds most women quit big firms over culture, not family (Reuters, 2022), available at: https://www.reuters.com/legal/legalindustry/dont-blame-baby-survey-finds-most-women-quit-big-firms-over-culture-not-family-2022-07-21/. Around 90% of the women lawyers surveyed cited toxic work cultures, while 82% stated the lack of flexibility and work-life balance as the primary reason for leaving the legal profession.¹⁷Ibid.

In the State Bar Councils i.e., the regulatory bodies representing advocates regionally, a mere 2.04% of state bar council representatives are women, while the 21-member national Bar Council of India (BCI) remains entirely devoid of female representation.¹⁸Abraham Thomas, SC seeks Centre’s reply on proportional representation for women in bar councils (Hindustan Time, 2024), available at: https://www.hindustantimes.com/india-news/sc-seeks-centre-s-response-on-proportional-representation-for-women-in-bar-councils-101726573680217.html. Given these alarming statistics, petitions have been filed before the Supreme Court for adequate representation of women in the BCI and the 21 State Bar Councils across India.¹⁹There is zero representation of women in the State Bar Councils for Gujarat, Delhi, Karnataka, Kerala, Punjab & Haryana, Maharashtra & Goa, Rajasthan, Uttarakhand, Uttar Pradesh, and West Bengal. The number of women representatives increase to one in Andhra Pradesh, Himachal Pradesh, Jharkhand, Madhya Pradesh, Tamil Nadu and Pondicherry, Telangana, Assam, Nagaland, Mizoram, Arunachal Pradesh, and Sikkim, and to two in Bihar; See Krishna P S, Not fair to the lady (The New Indian Express, 2024), available at: https://www.newindianexpress.com/cities/kochi/2024/Sep/24/not-fair-to-the-lady. This begs the question, despite the growing conversation around diversity, where is the tangible progress? We still witness all-male panels at conferences, shrouded appointment processes, and a lack of diversity within the judiciary and Bar Council.

Importance of Gender Diversity to Facilitate Access to Justice

The lack of gender diversity among practising lawyers before Indian courts raises concerns about the representation of women’s perspectives and experiences in shaping legal jurisprudence. It is imperative to address this gender gap and ensure that the highest courts of the nation reflect the diversity of the society it serves. The business case for diversity rests on treating differences as sources of knowledge and dismantling systems of discrimination, unconscious bias, and subordination.²⁰Robin J Ely and David A Thomas, Getting Serious About Diversity: Enough Already with the Business Case (Harvard Business Review, 2020), available at: https://hbr.org/2020/11/getting-serious-about-diversity-enough-already-with-the-business-case.

The diversity deficit in Indian arbitration landscape is another serious issue.²¹Debayan Roy, Arbitration space must shed tag of being old boys’ club; provide equal opportunity to men, women and them: CJI DY Chandrachud (Bar and Bench, 2023), available at: https://www.barandbench.com/news/arbitration-space-must-shed-tag-of-being-old-boys-club-provide-equal-opportunity-to-men-women-and-them-cji-dy-chandrachud The call to action requires enabling a “gender diverse arbitral pool” that moves away from the existing “old boys club” and pool of retired judges that dominate the Indian arbitration market. Faith in any system gets errored in the long run due to inadequate representation of the stakeholders affected by the outcomes of these processes. Much like the work underway in the international arbitration community to shed the “pale, male and stale” tag in order to solve the problem of re-appointment of arbitrators from a restrictive pool marked by the same gender, region and age group.²²Kabir Duggal and Amanda Lee, A 360-Degree, Kaleidoscopic View of Diversity and Inclusion (or Lack Thereof) in International Arbitration (American Review of International Arbitration, Vol. 33 No. 1, 2022), available at: https://aria.law.columbia.edu/issues/33-1/a-360-degree-kaleidoscopic-view-of-diversity-and-inclusion-or-lack-thereof-in-international-arbitration-vol-33-no-1/#_ftn2.

The inclusion of diverse arbitrators not only enhances the legitimacy of arbitration²³ICCA Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (2022), available at: https://cdn.arbitration-icca.org/s3fs-public/document/media_document/ICCA-Reports-no-8-Gender-Diversity-2022-update.pdf. but also takes into consideration the diverse perspectives from both arbitrators and counsel that significantly enhances the quality of the decision-making.²⁴Paula Hodges QC et al., Inside Arbitration: Diversity – what has been done so far and can the arbitration community do more? (HSF, 2022), available at: https://www.herbertsmithfreehills.com/insights/2022-02/inside-arbitration-diversity-what-has-been-done-so-far-and-can-the-arbitration-community-do. Research suggests that diverse teams are less susceptible to cognitive biases like “groupthink”, a phenomenon where a group of individuals, despite their independent capabilities, arrive at poor or suboptimal decisions due to flawed group dynamics and strong conformity pressures.²⁵Ibid. Moreover, studies have indicated that mixed-gender teams often outperform single-gender teams due to the unique social sensitivities that women bring to the group.²⁶ICCA Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (2022), available at: https://cdn.arbitration-icca.org/s3fs-public/document/media_document/ICCA-Reports-no-8-Gender-Diversity-2022-update.pdf.

Surveys and research have long argued that gender diversity often brings unique perspectives and experiences to the workplace, which, coupled with resilience and ingenuity, can lead to innovative solutions and improved performance. To foster innovation and drive positive impact, it is essential to have diverse teams, comprising individuals from various backgrounds and experiences.²⁷Lexis Nexis, Promoting Gender Diversity in the Legal Profession: A Changemaker’s Guide (2023), available at: https://www.lexisnexis.com/community/insights/legal/b/thought-leadership/posts/gender-diversity-in-the-legal-profession?srsltid=AfmBOopEqUemnMK-PjeGQ8n44h7mW3HXdzgT8yBI2Y7IL_vdj3NWbmCV.

The ICCA Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings highlights that “gender diversity promotes economic growth and is part of the broader social and cultural context in which international trade, investment and arbitration function“.²⁸ICCA Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (2022), available at: https://cdn.arbitration-icca.org/s3fs-public/document/media_document/ICCA-Reports-no-8-Gender-Diversity-2022-update.pdf. United Nations Women, Facts and Figures: Economic Empowerment, discusses the positive relationship between the employment of women and economic growth, and notes that “When more women work, economies grow. Women’s economic empowerment increases economic diversification and income equality for shared prosperity.”²⁹World Bank, Development Impact Evaluation gender program, Analyzing existing gender gaps in developing countries and their impact on economic development, available at: https://thedocs.worldbank.org/en/doc/588371555422724870-0050022019/original/DIMEProgramBriefGender2WEB.pdf

The ICC International Court of Arbitration (ICC Court) has been at the forefront of promoting diversity and inclusion in arbitration. In 2016 the ICC Court was the first to release statistics on gender in appointments, paving the way for accountability and for other arbitral institutions to assess and release similar statistics.³⁰Kabir Duggal and Amanda Lee, A 360-Degree, Kaleidoscopic View of Diversity and Inclusion (or Lack Thereof) in International Arbitration (American Review of International Arbitration, Vol. 33 No. 1, 2022), available at: https://aria.law.columbia.edu/issues/33-1/a-360-degree-kaleidoscopic-view-of-diversity-and-inclusion-or-lack-thereof-in-international-arbitration-vol-33-no-1/#_ftn2. ICC Court’s Centenary Declaration records the collective resolve to promote diversity, equity, and inclusion in all aspects of dispute resolution as one of its core priorities. In 2023, a notable increase in the appointment of women arbitrators was observed in ICC arbitrations. Women accounted for 29.7% (398) of all arbitrator appointments, up from 18.4% in 2018. This trend is particularly evident in appointments made directly by the ICC Court, where 41% (147) of appointments were women. Moreover, women arbitrators appointed in 2023 represented a diverse range of 66 jurisdictions, marking a new high in both the number of women arbitrators and the countries they represent.³¹ICC Dispute Resolution 2023 Statistics (2024), available at: https://iccwbo.org/wp-content/uploads/sites/3/2024/06/2023-Statistics_ICC_Dispute-Resolution_991.pdf. The ICC Court itself, which has members from around the world has more women than men as members for the first time and is led by the first woman President in its over 100-year history.³²For more insights into the ICC Court’s invitations on diversity, see Shashank Garg and Shania Elias, Diversity in Indian arbitration: Roadmap for justice through inclusion (Bar and Bench, 2024), available at: https://www.barandbench.com/columns/corporate-law/diversity-in-indian-arbitration-roadmap-for-justice-through-inclusion.

Diversity Beyond Gender

While this article focuses on gender diversity, it is important to underscore that the conversation around diversity extends beyond gender. To build a sustainable and equitable framework, the first step is acknowledging that diversity encompasses a spectrum – religion, caste, sexual orientation, and socio-economic background, and each of these factors contributes to a more comprehensive understanding of access to justice. In 2023, ICC launched the ICC Task Force on Disability Inclusion and International Arbitration to address the needs of people with disabilities who participate in ADR processes and provide clear guidance to tailoring procedures, which marks the first such effort by an arbitral institution. Moreover, even the talent pool of lawyers is limited by socio-economic factors that create significant barriers for aspiring lawyers from marginalized communities.

Bridging the Gap

Effective steps toward building diversity, including gender diversity, will be crucial for the growth of an inclusive and equitable dispute resolution landscape in India. Women lawyers help to challenge existing biases and assumptions that may have been ingrained in a predominantly male system and bring fresh perspectives to the table. Diversity goes beyond just the business case – there is a wide pool of gender-diverse practitioners having specific skills, credentials, temperament, and availability, who are not being considered despite being the best qualified to take up case mandates. Research shows that in comparison to a non-diverse tribunal, a diverse tribunal is likely to be more attentive to parties’ arguments and be more task-oriented.³³Berwin Leighton Paisner, International Arbitration Survey: Diversity on Arbitral Tribunals. Are We Getting There? (2017), available at: https://www.bclplaw.com/images/content/1/5/v2/150194/FINAL-Arbitration-Survey-Report.pdf. Recognising the value of diversity is only the first step. Actionable steps are needed to truly bridge the gender gap. Leaders in positions of power must recognise that ensuring equality, diversity, and inclusion is a key priority and part of their institution or organisation’s growth strategy. Some practical tips include:

• Mentorship Programmes: Connecting aspiring female lawyers with experienced practitioners through formal mentorship programmes can provide a platform for invaluable guidance and learning. Exclusion from inner circles of professional networks is a key challenge in India,³⁴Giti Pratap, Building careers and braving stereotypes: The new Delhi High Court-designated women Senior Advocates (Bar and Bench, 2024), available at: https://www.barandbench.com/columns/building-careers-and-braving-stereotypes-the-new-delhi-high-court-designated-women-senior-advocates. and these schemes can help build internal and external networks. Support from senior lawyers who actively advocate for the advancement of women is equally crucial.
• Unconscious Bias Training: Unconscious biases are stereotypes that influence decision-making or actions towards a group in a manner that is not mindful. Assumptions or perceived limitations stemming from gender impede the professional growth of female dispute resolution practitioners. It is crucial that not just leaders, but all levels of the legal profession become aware of these unconscious biases so that the ripple effects in decision-making can be prevented. Conducting unconscious bias training right from hiring managers, counsels and judges can help create a more equitable environment.
• Agile Work Arrangements: Lack of flexibility in working practices is a key reason for attrition of women lawyers. To retain the best talent, it is important to focus on contributions made at work rather than time spent in the office. Offering flexible work arrangements, including remote work options, and considering the timings of meetings during the middle hours of the day can help retain female talent, particularly those with childcare responsibilities.
• Transparency in Appointments: The current lack of transparency in senior designations, arbitral, and judicial appointments creates an imbalance of opportunities. Selection criteria for these roles should be transparent and it is important to remember that diverse panels create a more inclusive system.
• Role Models and Visibility: Highlighting the achievements of successful female lawyers is pipeline that inspire younger generations to challenge stereotypes and pursue similar career paths. Female lawyers should be provided platforms to share their experiences and learning, which could serve as building blocks for younger practitioners.
• Data-Driven Strategies: Areas of improvement can be identified if data on diversity among dispute resolution practitioners is collected, mapped, and analysed. The information emerging from data trends can then be used to create targeted initiatives to address specific challenges.

The hurdles on the pathway to an inclusive dispute resolution landscape range from deep-rooted societal biases, lack of access to mentorship and social networks, inadequate financial resources, and inflexible work cultures. While a collective host of these factors contribute to the underrepresentation of women, taking concrete steps and fostering a culture of inclusivity will create a more equitable legal system that is backed with legitimacy and reflects the needs of the diverse Indian population. Taking targeted measures towards promoting diversity will undoubtedly provide more nuanced perspectives on legal issues and ultimately lead to better outcomes for all stakeholders, especially those who are not represented or are underrepresented in the current system.