Department of Legal Affairs: Advise on Legal Matters

Under the Government of India (Allocation of Business) Rules, 1961, giving of advice on legal matters and interpretation of laws is one of the primary functions of the Department of Legal Affairs.

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Lex Resonance

Under the Government of India (Allocation of Business) Rules, 1961, giving of advice on legal matters and interpretation of laws is one of the primary functions of the Department of Legal Affairs. As early as in 1967, vide OM No.F.18(1)/69-O&M dated 20th May 1967, this Department has emphasized that in a case, if the Ministry/ Department feels that the facts of the case have not been fully appreciated or further clarification is needed in any matter, the case may be referred back to this Department for consideration and advice in the matter. If, after further reference, the Department adheres to its previous advice, the same should be followed by the Ministry/ Department concerned. It is not appropriate on the part of any Ministry/ Department to say that neither the latter is bound by the advice given by this Department nor can refuse to follow such advice. These instructions have been reiterated from time to time in the past.

Indian Law Watch Office Memorandum

Justice P.N. Bhagwati: Champion of Judicial Activism in Indian Jurisprudence

Justice P.N.Bhagwati: The article is the tribute of the Team Indian Law Watch to the Titan that passed away by narrating his journey for the present generation.

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Screen Shot 2017-06-27 at 11.05.22 AM Prafullachandra Natwarlal Bhagwati remembered as a pioneer of the Public Interest Litigation and concept of absolute liability was born on December 21, 1921, in Gujarat. The 17th Chief Justice of India decorated with Padma Vibhushan and well known for judicial activism in contemporary Indian jurisprudence received his education in Mumbai from the Elphinstone College, Mumbai.  Former Chief Justice of India started his career from the Bombay High Court and then in July 1960, was appointed as the Judge of the Gujarat High Court in the year 1960. He even went on to serve as the Governor of Gujarat briefly on two occasions. In July 1973, P N Bhagwati was appointed, a Judge of the Supreme Court of India. The family background of Justice Bhagwati is decorated with the father who was himself judge of Gujarat High Court and a brother who was reputed economist, Jagdish Bhagwati and another brother a famous neurosurgeon. In Poornima’s Advani publication, Indian Judiciary: A Tribute,  it was mentioned, “It was chance encountered with Mahatma Gandhi, Father of the Nation, that changed his destiny to be a lawyer and judge. ” Legal luminaries is a section where Team Indian Law Watch covers such legal professionals who are inspirations for million of our readers.

Contemporary Indian jurisprudence owe a lot to Justice Bhagwati for judicial activism- Habeas Corpus case, Public Interest Litigation, environmental law, legal aid to the poor accused criminal in a trial, Christian women ‘s right to intestate succession and the famous Menaka Gandhi judgment to name a few have an important positive bearing on both the law of the land and the people of India. Furthermore, it was with the vision of Justice PN Bhagwati who, along with Justice V.R. Krishna Iyer who had introduced the concept of judicial activism in India.

1. Poverty and confinement is no obstruction to receive due legal representation. The accused by the reason of poverty, destitution, incommunicado were then not able to present their cases in the courts which denied the right to their due representation. Justice P.N. Bhagwati in Hussainara Khatoon vs. the State of Bihar (1979 SCR (3) 532) had introduced the concept that free legal aid is an inalienable element of reasonable, fair, and just procedure, therefore, is implicit in Article 21 of the Constitution. Hence, if due to the reason of poverty, destitution, improper communication, the accused is denied his right to be represented by lawyers before courts then it becomes the duty of the state to provide the same.  Today, Legal aid is an important integral part of Indian judicial system doing the needful task for representing poor and destitute besides other eligible persons. The judgment left us with some important aspects:

  • Every person has a right to be heard
  • If the person is not able to afford a lawyer for any reason then the state has the duty to provide the legal assistance free of cost as per article 39A of the Constitution.
  • Justice must prevail and the law should take its own course even in these conditions where the innocent is being deprived of his rights due to incapacity of his to meet the demands of justice
  • Justice must not be demanding and it should be served free for those who are unable to afford it so that to maintain the sanctity of the Article 14 of the Constitution of India.
  • Right to speedy trial is an inalienable part of article 21 of the Constitution of India and it should be guaranteed by the state and the duty of the justice system to go out of the way to meet the ends of justice.

SAARC LAW

The contributions of Justice Bhagwati to human rights, legal aid are so eminent that it led to his elections to World Congress on Human rights as its President in the year 1989.

2. He is the pioneer of the concept of the Public Interest Litigation (‘PIL’), thereby making the Supreme Court directly accessible to the common person. It became an important mechanism of shielding the interests of underprivileged and marginalized sections of the society. He is famous for having taken even postcards as the filing of PILs. The following lines are taken from the famous S.P. Gupta judgment:

“It is very easy for the human mind to find justification for a conclusion which accords with the dictates of emotion. The reason is a ready enough advocate for the decision one, consciously or unconsciously, desires to reach. I will recall the brilliant fling of Shri Aurobindo in his poem “Savitri”.

An inconclusive play is Reason’s toil;

Each strong idea can use her as its tool;

Accepting every brief she pleads her case, Open to every thought she cannot know.

We have therefore to rid our mind of any pre-conceived notions or ideas and interpret the Constitution as it is and not as we think it ought to be. We can always find some reason for bending the language of the Constitution to our will if we want, but that would be rewriting the Constitution in the guise of interpretation. We must also remember that the Constitution is an organic instrument intended to endure and its provisions must be interpreted having regard to the constitutional objectives and goals and not in the light of how a particular Government may be acting at a given point of time. Judicial response to the problem of constitutional interpretation must not suffer from the fault of emotionalism or sentimentalism, which is likely to cloud the vision when Judges are confronted with issues of momentous importance. We must constantly bear in mind the famous words of Holmes J., in Northern Security Co. v. United States (1903) 193 US 197, where that great illustrious Judge said:

Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment, These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well-settled principles of law will bend.”

meeting Stephan Hawkings

3. One of the earliest judgments given in favor of women maintenance was given by justice Bhagwati in Vaddeboyina Tulasamma v. Vaddeboyina Shesha Reddi, (1977 AIR 1944) in which this case highlighted the Hindu female’s right to maintenance as a tangible right against property.

“1. The short question that arises for determination in this appeal is as to whether it is sub-section (1) or sub-section (2) of Section 14  of the Hindu Succession Act, 1956 that applies where property is given to a Hindu female in lieu of maintenance under an instrument which in so many terms restricts the nature of the interest given to her in the property. If subsection (1) applies, then the limitations on the nature of her interest are wiped out and she becomes the full owner of the property, while on the other hand, if sub-section (2) governs such a case, her limited interest in the property is not enlarged and she continues to have the restricted estate prescribed by the instrument. The question is of some complexity and it has evoked wide diversity of judicial opinion not only amongst the different High Courts but also within some of the High Courts themselves. It is indeed unfortunate that though it became evident as far back as 1967 that subsections (1) and (2) of section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu female in lieu of maintenance and the instrument granting such property pre- scribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which it must always possess in order to guide the affairs of men, the legislature, for all these years, did not care to step in to remove the constructional dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled and un- moved by the large number of cases on this point encumbering the files of different courts in the country, when by the simple expedient of an amendment, it could have silenced .judicial conflict and put an end to needless litigation. This is a classic instance of a statutory provision, which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise for lawyers. It illustrates forcibly the need of an authority or body to be set up by the Government or the Legislature which would constantly keep in touch with the adjudicatory authorities in the country as also with the legal profession and immediately respond by making recommendations for suitable amendments whenever it iS found that a particular statutory provision is, by reason of inapt language or unhappy draftsmanship, creating difficulty of construction or is otherwise inadequate or defective or is not well conceived and is consequently counter-productive of the result. it was intended to achieve. If there is a close interaction between the adjudicatory wing of the State and a dynamic and ever alert authority or body which response swiftly to the drawbacks and deficiencies in the law in action, much of the time and money, which is at present expended in fruitless litigation, would be saved and law would achieve a certain amount of clarity, certainty, and simplicity which alone can make it easily intelligible to the people.”

4. Justice Bhagwati was Chief Justice of the Gujarat High Court from September 1967 and one of the few judges who were part of the freedom movement, the impact of which can be seen in his thought process.

5. Another judgment he gave in favor of women is Mrs. Mary Roy Etc. v. State Of Kerala & Ors (1986 (2) SCC 209), The Supreme Court, in this case, held that the Christian women are entitled to have an equal share in their father’s property. This was a path-breaking judgment and sent shock waves throughout the country. Till then, a Christian daughter could inherit only one-fourth of the share of the sons in her father’s property. The Bench comprising of Chief Justice P.N. Bhagwati and Justice R.S. Pathak gave a liberal interpretation that benefited the Christian women in Kerala. The judgment prompted a repeal of the Cochin and Travancore Succession Acts and upheld the contents of Part-B states act, whose objective was to extend the application of the Indian Succession Act to the area which was governed by the discriminatory Travancore and Cochin Succession Acts. The judgment had its fair share of criticism too, leaving that aside, the holding by the Supreme Court offered Christian ladies much-needed assistance in obtaining their rights pertaining to intestate succession.

6. In Maneka Gandhi vs the Union of India (1978 AIR 597) when Maneka Gandhi was asked to return her passport in the public interest without stating the reason, in return she asked the office to give the statement of reason to which the office replied that “in the interest of general public“. She filed a writ petition in court to which Justice P N Bhagwati and Justice V R Krishna Iyer gave the verdict in her favor. He stated in the judgment that everyone has the right to life and liberty. Justice C.J. Beg concurring with justice Bhagwati said the right to travel and go outside the country is included in the right to life and personal liberty. Even Justice Chandrachud gave his opinion concurring with the verdict of justice Bhagawati.

7. In M.C Mehta vs the Union of India (1988 AIR 1115), when PN Bhagwati was the Chief Justice of India he introduced the concept of absolute liability in India. In this judgment it was held that if the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. The Court also pointed out that the measure of compensation in the kind of cases referred to must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.

8. As in Bandhua Mukti Morcha vs Union of India & Ors.(1984 AIR 802) He stated that law does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people. It is in a realization of this constitutional obligation that this Court has innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning.

“The fundamental rights may be alleged to have been violated under various circumstances. The facts and circumstances differ from case to case. Whenever, however, there is an allegation of violation of fundamental rights, it becomes the responsibility and also the sacred duty of this Court to protect such fundamental rights guaranteed under the Constitution provided that this Court is satisfied that a case for interference by this Court appears prima facie to have been made out. very often the violation of fundamental rights is not admitted or accepted. On a proper consideration of the materials, the Court has to come to a conclusion whether there has been any violation of fundamental rights to enable the Court to grant appropriate reliefs in the matter. In various cases, because of the peculiar facts and circumstances of the case, the party approaching this Court for enforcement of fundamental rights may not be in a position to furnish all relevant materials and necessary particulars. If, however, on a consideration of the materials placed, the Court is satisfied that a proper probe into the matter is necessary for the larger interest of administration of justice and for enforcement of fundamental rights guaranteed, the Court, in view of the obligations and duty cast upon it of preserving and protecting fundamental rights, may require better and further materials to enable the Court to take appropriate action; and there cannot be anything improper in the proper exercise of Court’s jurisdiction under Article 32 of the Constitution to try to secure the necessary materials through the appropriate agency.”

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9. Justice P.N. Bhagwati was also Vice Chairman of United Nations Human Rights Committee. He was the member of the Permanent Court of Arbitration at Hague. He was the first Indian to be appointed to United Nations Human Rights Committee in the year 1994 and in its very first meeting he added laurels for India by getting elected as its Vice Chairman.

CONCLUSION

A judge who delivered “justice for all” in his astounding career.  The impact of his legal wisdom makes him most remembered judge till date, various laurels include a village named after him by the tribal community who benefited from his judgment a place,  few enjoyed. The former Chief Justice of India left for heavenly abode in the year 2017 on June 15th but his life continues to be a message for all.

The article is the tribute of the Team Indian Law Watch to the Titan that passed away by narrating his journey for the present generation.


Co-AuthorThe legal researcher for the article is an Intern of Indian Law Watch Shivangi Gupta, BBA LLB, Vivekananda Institute of Legal Studies (2016-2021).

Women Judges: Madras High Court Takes Lead in Number

Madras High Court has elevated 6 judges to the High Court, which include four women judges marking the place in legal history in 2017 by being High Court with the highest number of women judges.

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legal systems update

The High Court of Judicature at Madras, one of the three High Courts in India established at the Presidency Towns by Letters Patent granted by Her Majesty Queen Victoria, bearing date 26th June 1862, is the highest Court in the State of Tamil Nadu, exercising Original Jurisdiction over the City of Madras and Appellate Jurisdiction over the entire State as well as extra-ordinary Original Jurisdiction, Civil and Criminal, under the Letters Patent and Special Original Jurisdiction for the issue of writs under the Constitution of India.  

Comment

Highest tally in 125 years was crossed in the year 2017 of female judges being appointed to the Madras High Court.  They would be sworn in within the court premises. Chief Justice Indira Banerjee administered the oath of office to the judges on December 1, 2017. The appointment of the six judges, all elevated from the subordinate judiciary, takes the number of sitting judges in the Madras high court to 60, against a sanctioned strength of 75. The four new women judges whose names were notified are S Ramathilagam, R Tharani, R Hemalatha and T Krishnavalli, all promoted from subordinate judiciary. The total number of women judges in Madras High Court now rise to highest to 11. The six judges who are sworn in include the following :

  • Justice S Ramathilagam 
  • Justice T Krishnavalli,
  • Justice R Tharani,
  • Justice R Hemalatha,
  • Justice P Rajamanickam and
  • Justice R Pongiappan.

Cornelia Sorabjee: Journey of First Women Advocate of India

Entry of women in the legal profession has its own history. The journey is inspiring worth sharing for our readers to understand the history. Read more in this article.

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The aura of the Personality

Education before Legislation

…Cornelia Sorabjee 

Cornelia Sorabji (1866-1954), a barrister, a social reformer and a prolific writer born on November 15, 1866, at Nasik in the Bombay Presidency, India. She was the fifth daughter of the Revd Sorabji Karsedji, a Parsi, a Christian convert, and his wife, Franscina Ford, who had been brought up by an English couple. Being India’s first female advocate is a benchmark in itself, considering the time, she wrote her name in the history, not only in India but the world over. Allahabad High Court entered its name in Golden letters in history for taking a lead for enrolment of women at the bar.

Cornelia is a journey and an inspiration for every woman entering the legal profession. She was also a first woman graduate from Bombay University from Deccan College in Poona, where she graduated with a first class degree. She was a first women law graduate in 1894 from Oxford University, England, however, she was not allowed to practice till then. It was not possible for women to become barrister then but she continued to read law with a Solicitor’s firm at Lincoln’s Inn until she was called by the bar in the year 1922 becoming first women to practice law in India and Britain later. In fact, she had to get special permission by Congressional Decree to take the Bachelor of Civil Laws exam at Somerville College, Oxford. Her publications contributions include:

(1) India Calling (1934)
(2) India Recalled (1936)
(3) Edited Queen’s Marry Book for India (1943)

Cornelia’s journey is incomplete without mention of Regina Guha and Sudhanshu Hazra who too faced similar issues while approaching the system for enrollment. Things are changing at present but legal profession at level is yet to see the complete rise of women in the profession at all levels. The article is an eye-opener to the tough journey of the female lawyers then to open the gateway of the profession for rest of women in India.

Then Allahabad High Court

Allahabad_high_court (1)

The Charter Act of 1861 much before the birth of Cornelia established the High Court. During that period, there was a dual judicial system in the Presidency Towns of Calcutta, Bombay, and Madras. The royal courts were Supreme Courts in the three presidency towns and the East India Company courts-the Sadar Adalats and Sadar Nizamat Adalat. There was an independent as well as concurrent jurisdiction between the duos. However, the parallel jurisdiction was creating conflicting decisions. This led to the passage of the Indian High Courts Act, 1861, which provided for the abolition of the dual system and establishment of the High Courts. Secretary of State, Sir Charles Wood, moved the Bill titled “An Act for establishing High Court of Judicature in India”.

Accordingly, the High Courts were established at Calcutta (May 14, 1862), Bombay and Madras (June 22, 1862). Sir Barnes Peacock was the First Chief Justice of Calcutta High Court. The 1861 Act also empowered the crown to issue letters patent under the great seal of United Kingdom to establish any other High Court as and when the crown may deem fit. Under this power, the Indian High Courts Act of 1861 replacing the Sadr Diwani Adalat established a High Court in 1866 for the North-Western Provinces at Agra on March 17, 1866. The Royal Charter of Queen Victoria was issued to this effect on said date. The High Court was established for North West Province replacing Sadr Diwani Adalat at Agra. Sir Walter Morgan, Barrister-at-Law was appointed the first Chief Justice of the High Court of North-Western Provinces. However it was shifted to Allahabad in 1869 and the name was correspondingly changed to the High Court of Judicature at Allahabad from March 11, 1919.

Women at the Bar

Women all over the world were trying to claim equal rights with men at about the same time as the Allahabad High Court was established. The interpretation around the “Person Clause” held the key to open the path for women to practice law. The question was which country or the court takes this lead. The majority of the statutes at that time used the phrase ‘any person who has… is entitled to vote or to take admission or to practice.’ and soon the question was raised-‘Does the word person include women?

Despite an Act, similar to our General Clauses Act, in England that masculine includes feminine the court held that women were not included in the term man and are not entitled to vote. Then started the ‘person cases’ holding that women were not included in the term person. This trend continued in England until 1918 when women were given the right to vote and in 1919 the Sex Disqualification Removal Act removed this disability.

The US Supreme Court in Bradwell Vs Illinois (1875) held that a State could preclude a married woman from practicing law. Amongst all countries, Canada stood out as an exception to the above trend. Lord Curzon was former Viceroy of India and leader of the anti-suffrage movement. He, from his experience, declared that millions of British subjects would cease to have respect for the Government if they got to know that it had been put into office by the votes of women. Such arguments prevailed until 1918.

Regina Guha’s Case

The Legal Practitioners Act, 1879 used the word ‘person’. The journey of women to find space to practice law can be traced in case of Regina Guha vs. Unknown (29th August 2009; Lancelot Sanderson (Chief Justice)- Regina Guha who had obtained the Degree of the Bachelor of Law from the University of Calcutta in the year 1916 filed this petition desiring to be admitted to practice as a Pleader in the District of 24-Parganas. She paid into the Government Treasury of the said District the fee prescribed by Rule 27 of the Rules framed by the Hon’ble High Court under the Legal Practitioners Act and also presented her diploma, the receipt for the said fee and a stamp paper of necessary value of her first certificate to practice to the learned District Judge of 24-Parganas together ¦with the necessary application for admission. That the learned District Judge of 24-Parganas by a memorandum, dated the 3rd April 1916, forwarded the said application to the Hon’ble High Court for orders on petitioner’s enrollment.

Miss Regina Guha’s application for enrolment as a Pleader in one of the Courts subordinate to this Court, under the rules framed in conformity with Section 6 of the Legal Practitioners Act, 1879 was the first instance of an application by a lady for enrolment as a Pleader, therefore a Special Bench heard her application, whether the Legal Practitioners Act, 1879 contemplated women practitioners.

The Rules for Enrolment as Pleaders and Muktars in Subordinate Judiciary

Regina Guha’s arguments also submit the rules prevalent than for enrolment as a pleader.

Origin of the profession of the Pleaders in Bengal and the reason for their appointment is to be found in Harington’s Analysis, Volume I

(a) Regulation VII of 1793

The first Regulation dealing with this matter was Regulation VII of 1793, the preamble to which, after referring to the unsatisfactory state of affairs with regard to the practice in the Courts, provided “that it is, therefore, indispensably necessary for enabling the Courts duly to administer and the suitors to obtain justice that the pleading of causes should be made a distinct profession; and that no person should be admitted to plead in the Courts but men of character and education versed in Muhammadan or Hindu Law and in the Regulations passed by the British Government; and that they should be subjected to rules and restrictions calculated to secure to their clients a diligent and faithful discharge of their trust.

Clause II.

The Sadar Dewani Adalat is empowered to appoint, from time to time, such a number of Pleaders of the Muhammadan or Hindu persuasion, as may appear to them necessary to plead the causes of the parties in suits in the Sadar Diwani Adalat, the Provincial Courts of Appeal and the Courts of Dewani Adalat in the several zillions and the cities of Patna, Dacca and Murshidabad.

Clause V. The Pleaders are to be selected from amongst the students in the Muhammadan College at Calcutta and the Hindu College at Benares, who may be qualified and be desirous of being admitted to plead in any of the Courts if the Colleges shall not furnish a sufficient number of Pleaders, the Sadar Diwani Adalat is to admit any other persons, provided they be Muhammadans or Hindus, previously, however, ascertaining that they are men of good character and liberal education and giving a preference, in all cases, to persons of this description who have been bred to the study of the Hindu or Muhammadan Law.

So the admission of pleaders were men of repute and character of scholars of Muhammadan and Hindu Law. Even if the law the college failed to provide the sufficient number of pleaders, the Sadar Diwani Adalat was empowered to select beyond people who fulfill the eligibility criteria.

(b) Regulation XXVII of 1814

In 1814 however, Regulation XXVII was made for the purpose of reducing into one Regulation with amendments and modifications the several rules that had been passed regarding the office of Vakil or native Pleader in the Courts of Civil Judicature. Further, it also provided Provincial courts with powers of appointment of Vakils or native pleaders.

“Whereas it has been deemed expedient to transfer to the Provincial Courts the control now exercised by the Sadar Dewani Adalat in the appointment and removal of Vakils or native Pleaders in the Zilla and city Courts and in the Provincial Courts, and whereas the speedy adjustment of disputes may be facilitated by empowering the authorised Vakils to receive certain fees for legal opinions furnished by them and by vesting them with authority to act as arbitrators under the general Regulations, and whereas it will contribute to the public convenience to reduce into one Regulation, with amendments and modifications, the whole of the provisions which will be applicable to the office of Vakil or native Pleader, the following rules have been passed by the Governor-General in Council, to be in force from the 1st of February 1815 throughout the whole of the Provinces immediately subject to the Presidency of Port William Clause 3(1).”

 The Sadar Dewani Adalat and the several Provincial Courts are empowered to appoint to the office of Vakil in their respective Courts, such a number of persons being natives of India and duly qualified for the situation as may from time to time appear to them necessary.

 “Clause 3(3). In the nomination and appointment of persons to the office of Vakil the Judges of the Sadar Diwani Adalat of the several Provincial Courts, and of the zilla and City Courts, are restricted to individuals of the Hindu and Muhammadan persuasion and are required to give preference to candidates who may have been educated in any of the Muhammadan or Hindu Colleges established or supported by Government, provided that such candidates are in other respects duly qualified for the situation.”

(c) 1846 Act

By Act I of 1846 it was enacted that Clause III, Section 3, of Regulation XXVII of 1814 should be repealed and insertion of new Section 4 provided. By this clause, the restriction that a Pleader must be a Muhammadan or a Hindu was removed and the office of Pleader was thrown open to all persons of whatever nation or religion. It is to be noted that the word “persons” is used in the section, but from the context, it is clear that male persons were referred to. It as follows:

“Clause 4. “And it is hereby enacted that the office of Pleader in the Courts of the East Indian Company shall be open to all persons of whatever nation or religion, provided that no person shall be admitted a Pleader in any of those Courts unless he has obtained a certificate, in such manner as shall be directed by the Sudder Courts, that he is of good character and duly qualified for the office, any law or Regulation to the contrary notwithstanding.”

(d) Act XX of 1865

By Act XX of 1865 so much of Regulation XXVII of 1814 as had not already been repealed was thereby repealed and by Section 4 it was provided  that High Court will have power for enrolment of proper persons as follows:

“The High Court is hereby authorised and required, within six months after this Act shall take effect in the Territories in which such Court exercises jurisdiction, to make rules for the qualification, admission and enrolment of proper persons to be Pleaders and Mukhtars of the Courts in such territories for the fees to be paid for the examination, admission, and enrollment of such persons and subject to the provisions hereinafter contained for the suspension, and dismissal of the Pleaders and Mukhtars so admitted and enrolled. The High Court may also from time to time vary and add to such rules.”

By this section, the High Court is the authority to make rules and the persons to be admitted are “proper persons,” the same words as there used in the Legal Practitioners Act of 1879.

(e) Legal Practitioners Act, 1879

Section 5 of the Act provides as follows:

Except as hereinafter provided, no person shall appear, plead or act as a Pleader, on appear or act as a Mukhtar in any Court to which this Act extends, unless he shall have been admitted and enrolled and shall be otherwise duly qualified to practice as a Pleader or as a Mukhtar, as the case may be, pursuant to the provisions of this Act and unless he shall continue to be so qualified and enrolled at the time of his practising as a Pleader or Mukhtar as aforesaid: Provided that every person who at the time at which this Act shall come into operation in any part of British India shall be or shall be qualified to act as a Pleader in any Court in such part by virtue of any law, rule or order in force therein shall be entitled to be admitted and enrolled as a Pleader in the High Court pursuant to the provisions of this Act, without passing any examination but subject to the conditions of any certificate or diploma held by him as to the class of Courts in which such certificate or diploma authorises him to practice.” It is evident from the language used that the Legislature contemplated the admission of male persons only as Pleaders. This is corroborated by the fact that although Section 2 provides that words importing the singular shall include the plural, etc., and Pleader includes Vakil, there is no mention that words importing the masculine gender should include females.

(f) Chapter XI, Part I, of the General Rules of the High Court

It contains the rules as to the qualification, admission, and certificates, etc., of Pleaders and Muktars in Courts subordinate to the High Court framed under Clauses (a), (b), (c) and (d) of Section 6 of Act XVIII of 1879, and Rules 3 to 6 inclusive are the rules. The para below is reproduced from Regina Guha’s judgment.

“……7. The language used in section 7 and following sections, such as the words “him” and “his”; point to an intention of the Legislature that it was a male person only who could be admitted as a Pleader of the subordinate Courts, but by the General Clauses Act of 1868 (I of 1868), Section 2, it was provided that in all Acts made by the Governor-General of India in Council after that Act should have come into operation, unless there was something repugnant in the subject or context, words importing the masculine gender should be taken to include females: so that the use of the language above referred to in the Act of 1879 is not conclusive.”

The submissions doing rounds then were the usage of words like “his and him” in the aforesaid Act and the evaluation of General Clauses act which under section 2 highlighted the repugnancy as a ground for non-inclusion of a female in interpretation.

The Judgment of Regina’s Case: Men Only as Pleaders

Bench: Lancelot Sanderson; A.Mookherjee; W. Chitty; Teunon; Chowdhary

Chief Justice

The intention of the Legislature was to deal with a recognized Pleaders, which up to that time was constituted of men only, and to which men only could belong. In 1868 the first General Clauses Act was passed and it was not retrospective. In 1879 the Legal Practitioners Act was passed. It repealed Act XX of 1865 and it is the Act, which is now applicable to this matter. Reading the sections without reference to the General Clauses Act of 1868, they obviously contemplate the admission of a male person only: and the pre-existing disability of women to be admitted as Pleaders was not removed by that Act. The question remains, whether by reason of the application of the aforesaid provisions of the General Clauses Act to the Act of 1879 the Legislature intended to remove the above-mentioned pre-existing disability.

The long-established and well-recognized profession of Pleaders, which had consisted for over 80 years of men only, and in respect of which it was admitted that no woman had ever yet applied for admission as a Pleader. It was also observed that it is true that the legislation of the past had been to some extent progressive, but only in the direction of removing the restrictions as to the qualifications of men.

“28. In my judgment, it could not be intended that such a disability as above mentioned should be removed by a mere interpretation clause. This opinion is confirmed by the decision in Bebb v. Law Society (1914) 1 Ch. D. 286 : 83 L.J. Ch. 3363 : 110 L.T. 353 : 58 S.J. 153 : 30 T.L.R. 79. There the disability arose from the Common Law of England, and it was held that the disability could not be removed, even though the Act, which was under consideration, itself contained an interpretation clause similar to the one in the General Clauses Act, 1568.”

Chief Justice held that in his judgment, therefore, the answer to be given to the application must be that as the law now stands Miss Regina Guha is not entitled to be enrolled as a Pleader of the subordinate Courts.

Three questions, consequently, required consideration as observed by Justice Ashutosh Mookerjee and even contemplated by Chief Justice:

  • Does the Legal Practitioners Act contemplate women practitioners;
  • If the Legal Practitioners Act contemplates women practitioners, has the High Court by its rules excluded them; and
  • If the rules exclude them, are the rules ultra vires.

The preamble to the Legal Practitioners Act as also the language used in Section 6 make it plain, what indeed is well known, that the profession of Pleaders was not created by the Legal Practitioners Act. The earliest Regulation on the subject, passed by the Governor-General in Council as a Legislative body, was made on the 1st May 1793 and is known as “A Regulation for the appointment of Vakils or native Pleaders in the Courts of Civil Judicature in the Provinces of Bengal, Behar and Orissa” (Regulation VII of 1793). The preamble shows that even before the Regulation was made, there was a profession of Vakils in the Courts of Civil Judicature in the British Territories in Bengal, “Men, who followed the business of a Vakil to obtain a livelihood and appeared in the Courts of Justice or wherever the concerns of their constituents required their attendance.

35. The preamble to Regulation VII of 1793 describes in vivid terms the mode in which these men discharged their duties, their ignorance of the Laws and Regulations, their lack of regularity and diligence, and their disregard of the interests of their clients. The preamble then proceeds to formulate the necessity for the constitution of a distinct profession and the advantages to the public likely to result from the adoption of such a step: “it is, therefore, indispensably necessary for enabling the Courts duly to administer and the suitors to, obtain justice, that the pleading of causes should be made a distinct profession; and that no persons should be admitted to plead in the Courts but men of character and education versed in the Muhammadan or Hindu Law and in the Regulations passed by the British Government; and that they should be subjected to rules and restrictions calculated to secure to their clients a diligent and faithful discharge of their trusts.” Later on, the preamble states that in order that “men of education and respectable character may be solicitous to be admitted as Pleaders in the Courts, their appointments ought to be secured to them as long as they conform to the Regulations under which they act.” It is beyond controversy, as appears from the language used in the preamble to the Regulation and throughout the various provisions thereof, that the Indian Legislature in 1793 contemplated the admission of men alone as what is described in the Regulation as Public Pleaders. This was obviously natural, the Legislators themselves had been brought up in a system which knew not women Legal Practitioners and the circumstances of the country intended to be benefited by their legislation rendered it impossible for them to imagine that women could appear in Courts of Justice as Public Pleaders.” This Regulation was repealed and replaced by Regulation XXVII of 1814 passed on the 29th November 1814 for reducing into one Regulation, with amendments and modifications, the several rules which have been passed regarding the office of Vakil or native Pleader in the Courts of Civil Judicature.” The preamble enumerates the changes which were intended to be effected in the pre existing Law on the subject, and it is sufficient for our present purpose to state that there is not the remotest indication of an intention to effect a departure of so fundamental a character as the admission of women into the ranks of Legal Practitioners.”

Judge A. Mookerjee

The Judge in his observation says that applicant contends that as the University of Calcutta has admitted her to the Degree of Bachelor of Law and she is qualified for enrollment under the rules, although the rules refer in terms to male persons. She relief upon the well-known principle of construction embodied in Section 13 of the General Clauses Act, 1897, that “in all Acts of the Governor-General in Council and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females”. A provision similar to this, it may be observed, found a place in Section 2 Clause (1), of the General Clauses Act 1868: “In this Act, and in all Acts made by the Governor-General of India in Council, after this Act shall have come into operation, unless there be something repugnant to the subject or context, words importing the masculine gender shall be taken to include females.” This rate of interpretation is not of direct assistance to the petitioner, unless its operation be extended to the construction of statutory-rules. Assume that such extended application is legitimate, still the question remains, whether there is something repugnant in the subject so as to exclude the proposed interpretation. There is thus no escape from the problem, does the Legal Practitioners Act contemplate the existence of women practitioners?

“34. The preamble to the Legal Practitioners Act as also the language used in Section 6 make it plain, what indeed is well known, that the profession of Pleaders was not created by the Legal Practitioners Act. The earliest Regulation on the subject, passed by the Governor-General in Council as a Legislative body, was made on the 1st May 1793 and is known as “A Regulation for the appointment of Vakils or native Pleaders in the Courts of Civil Judicature in the Provinces of Bengal, Behar and Orissa” (Regulation VII of 1793). The preamble shows that even before the Regulation was made, there was a profession of Vakils in the Courts of Civil Judicature in the British Territories in Bengal, “Men, who followed the business of a Vakil to obtain a livelihood and appeared in the Courts of Justice or wherever the concerns of their constituents required their attendance.” This is made manifest by an examination of the Regulations for the Administration of Justice made by the Governor-General in Council between the. 21st August 1772 and the 23rd November 1792 and collected by James Edward Colebrooke in his Supplement to the Digest of the Regulations and Laws (1807); to take one illustration only, reference may be made to Section 46 and 84 of the Regulation for the Administration of Justice passed in Council on the 5th July 1781; these recognize the existence of Vakils, and the context shows that men alone at that time constituted the profession.

 35. The preamble to Regulation VII of 1793 describes in vivid terms the mode in which these men discharged their duties, their ignorance of the Laws and Regulations, their lack of regularity and diligence, and their disregard of the interests of their clients. The preamble then proceeds to formulate the necessity for the constitution of a distinct profession and the advantages to the public likely to result from the adoption of such a step: “it is, therefore, indispensably necessary for enabling the Courts duly to administer and the suitors to, obtain justice, that the pleading of causes should be made a distinct profession; and that no persons should be admitted to plead in the Courts but men of character and education versed in the Muhammadan or Hindu Law and in the Regulations passed by the British Government; and that they should be subjected to rules and restrictions calculated to secure to their clients a diligent and faithful discharge of their trusts.” Later on, the preamble states that in order that “men of education and respectable character may be solicitous to be admitted as Pleaders in the Courts, their appointments ought to be secured to them as long as they conform to the Regulations under which they act.” It is beyond controversy, as appears from the language used in the preamble to the Regulation and throughout the various provisions thereof, that the Indian Legislature in 1793 contemplated the admission of men alone as what is described in the Regulation as Public Pleaders.”

 The next legislation on the subject was in 1865 when Act XX of 1865 came into force on the 10th April 1865. Regulation XXVII of 1814, in so far as it had not been already repealed, as also Act I of 1846, Act XVIII of 1852 and Act XX of 1853 were repealed; it may be stated parenthetically that the language used in those two Acts shows that the Legislature contemplated men alone as Legal Practitioners. There is no indication whatever in Act XX of 1865 that the Legislature had in view a departure from what had unquestionably been the Law from before 1793. On the other hand, Section 5, and the form of certificate to be granted to Pleaders as contained in the Second Schedule make it manifest that in 1865, as in 1793, the Legislature contemplated men alone as Legal Practitioners. It is further worthy of note that this Act contains an interpretation clause; Section 2 enacts that; unless there is something repugnant or inconsistent in the subject or context, words in the Act importing the singular number include the plural and words importing the plural number include the singular. This corresponds with what was subsequently enacted in Section 2(2) of the General Clauses Act (I of 1868); but we miss in Act XX of 1865 what does find a place in Section 2(1) of Act I of 1868, namely, the provision that words importing the masculine gender shall be taken to include females. The omission becomes significant, when we find that in Indian Penal Code (Act XLV of 1860), enacted on the 6th October 1860, the Legislature had in Section 8 stated that the pronoun he and its derivatives are used of any person, whether male or female. The inference is legitimate that if the Legislature in 1865 had contemplated the admission of women as Legal Practitioners, they would have inserted in the interpretation clause a provision about gender as they did in 1860 in the case of the Indian Penal Code. It is not as if they were oblivious of this point. Take, for instance, Act XX of 1865 (Mufassil Small Cause Courts Act), which came into force on the 15th March 1865, that is less than a month before the Pleaders Act, 1865, came into operation we find in the interpretation Clause (Section 4) a provision that “words importing the masculine gender include females.” Take again Act X of 1865 (the Indian Succession Act), which came into force on the 10th March 1865, that is, after the Small Causes Court Act but before the Pleaders Act; we find in the interpretation Clause (Section 3) a provision that words importing the male sex include females. This occurs along with a provision about the number which re-appears in the Small Causes Courts Act and in the Pleaders Act; but the provision about gender, as we have seen, re-appears in the Small Causes Court Act, but not in the Pleaders Act. It thus looks as if the provision about glider had been deliberately omitted from the Pleaders Act. The contrast is emphasized when we take another Act passed a few days later on the 17th April 1865, namely, Act XXIII of 1865 (Punjab Chief Court of Judicature Act), where, in the interpretation Clause (Section 1), we find provisions about both number and gender. The position, then, is that in 1865, when there was no interpretation Statute, when the Legislature used to insert interpretation clauses in various Acts, we find that in Acts made immediately before and after the Pleaders Act, words indicative of the male sex are expressly stated to include the female sex, but there is no such provision in the Pleaders Act: the inference seems almost conclusive that the omission was intentional, and this conclusion is substantially strengthened when we find that from 1772 onwards men alone as Legal Practitioners were in the contemplation of the Legislators and although the Pleaders Act was amended on the 22nd December 1865 by Act XXIX of 1&65, no change was made in this direction. The Pleaders Act, 1865, was, as we have already seen, repealed by the Legal Practitioners Acy, 1879, which was passed on the 29th October 1879. Neither the preamble nor the provisions of any of the sections of the Act afford any indication of an intention on the part of the Legislature to widen the profession of Pleaders by the admission of women into its ranks. I do not overlook the fact that the Act of Incorporation of the University of Calcutta (Act II of 1857), which came into force on the 24th January 1857, authorised the Senate to confer degrees in various Faculties inclusive of the Faculty of Law and that notwithstanding the absence of an interpretation clause, the Act of Incorporation has been interpreted to authorise the University to grant degrees to men as well as to women in all Faculties. There may obviously be weighty reasons why in the University Act words importing the masculine gender may be taken to include females, while in the Pleaders Act no such intention can reasonably be attributed to the Legislature; the subject-matters of the two Statutes and the historical antecedents thereof are fundamentally different. For the reasons stated, I see no escape from the position that the Legislature in this country never contemplated the admission of women to the rank of Legal Practitioners.”

The Pleaders Act, 1865, was, as we have already seen, repealed by the Legal Practitioners Acy, 1879, which was passed on the 29th October 1879. Neither the preamble nor the provisions of any of the sections of the Act afford any indication of an intention on the part of the Legislature to widen the profession of Pleaders by the admission of women into its ranks. I do not overlook the fact that the Act of Incorporation of the University of Calcutta (Act II of 1857), which came into force on the 24th January 1857, authorised the Senate to confer degrees in various Faculties inclusive of the Faculty of Law and that notwithstanding the absence of an interpretation clause, the Act of Incorporation has been interpreted to authorise the University to grant degrees to men as well as to women in all Faculties. There may obviously be weighty reasons why in the University Act words importing the masculine gender may be taken to include females, while in the Pleaders Act no such intention can reasonably be attributed to the Legislature; the subject-matters of the two Statutes and the historical antecedents thereof are fundamentally different. For the reasons stated, I see no escape from the position that the Legislature in this country never contemplated the admission of women to the rank of Legal Practitioners.”

Justice Mookherjee also observed the Hindu law and the Muslim Law as it stood for pleaders then.

“It is interesting to investigate the matter from the point of view thus indicated. We have seen that ever since the foundation of British Courts in this country in 1772, women have never been admitted to the rank of legal practitioners. It is by no means easy to determine with absolute certainty whether women w ere recognised as legal practitioners in Hindu or Muhammadan Courts in this country. As, regards Hindu Courts, it is clear that the legal profession existed in the seventh century of the Christian era, when Asahaya wrote his commentary on the Institutes of Narada (see the edition of Narada Smriti, edited by Joly, for the Bibliotheca Indica Series, Book I, verse 6, page 48; Sacred Books of the Ea3t series, volume XXXIII, page 43; see also Introduction, section J I, verse 22, S.B.E. Volume XXXIII, page 29). To the same effect are texts of Vrihaspati, Katyayana and Vyasa quoted by Raghunandan in his Vyavahara Tatwa. It is also fairly clear from Buddhistic books that the profession of lawyers existed in the first century before the Christian era; they were known as ‘sellers of’ law”, “or traders in law”, who “explained and re-explained, argued and re-argued” [Milinda Panho, Book V, 23, Trenckner’s Edition, pages 344, 345; translation by Rhys Davids, Sacred Book of the East, Volume XXXVI, pages 236-238]. There are also references to Pleaders in the Dhammathats or the Laws of Manu [Richardson’s Laws of Manu page 50]; Similarly, the Sukraniti (IV, 5, 10, 13, 26, 80-82) mentions Pleaders. It is remarkable that wherever Pleaders or Advocates are so mentioned the reference is to men and not to women. I cannot find any instance where in Hindu or Buddhistic times the jurists contemplated the possibility of women as members of the legal profession. As regards the Courts in Muhammadan times in this country, I have not been able to obtain any information, but I am not unmindful that there are indications that the legal position of women under the Islamic Law, as administered in countries beyond India, was based on very advanced conceptions. Thus, Syed Ameer Ali observes, in his Lecture on the Legal Position of women in Islam (page 21), that Abu Hanifa, the founder of the Hanfia School of Musalman Law had declared in the eighth century of the Christian era, that a woman was entitled to hold the office of Judge or Qadi equally with a man. A’l Suyuti in his History of the Caliphs (Tarikh-ul-Khulafa, page 391) states that Shaab or Shaghab, the mother of the, Abbasid Caliph-al-Muqtadir (295 A.H.: 907 A.D.) herself presided at the High Court of Appeal, listened to applications surrounded by Qadis and Dignitaries of State and issued edicts in her own writing. In the celebrated Maqamat or Assemblies of Al Hariri (Assembly IX tr. Chenery, and Assembly XL, tr. Steingass, both in the Oriental Translation Fund, New Series), we find instances of women litigants appearing before Qadis and holding their own against their husbands or other male adversaries (see also Kitab-ul-Adhkeya of Ibn-al-Jouzi published in Cairo, which records many instances of women litigants appearing before Caliph Omar, Abu Hanifa, and other eminent doctors of Muhammadan Jurisprudence). Even in Islam, however, there have been rifts and the author of the well-known work Al-Ashbah Wa’l-Nazair (Analogies and Precedents, Lucknow Edition, page 507) urges that women should not be invested with the office of Qadi, though it may be lawful and valid for her to hold the appointment, excepting matters of criminal law. The substance of the matter is that no trace of women legal practitioners can be found in Hindu or Buddhistic times, and though the Islamic Law may have tolerated the appearance of women litigants in Court and possibly the appointment of women as Judges, there is no trace of women legal practitioners in the Courts of this country during the Muhammadan period. When the British Courts were first constituted in 1772, the rulers found men alone as Legal Practitioners, and when in 1793, for reasons assigned in the preamble to Regulation VII, the profession was, as it were, re-organised and given a recognised legal status, the Legislators contemplated men alone as members of the profession. There has never been a departure from that policy. It is impossible for us to hold that, on the law as it stands, women are entitled to be admitted to the ranks of the legal profession; when I say this, I do not forget that our duty as Judges of this Court is strictly limited to a declaration of the Law as it is; whether any change in that Law would be wise or expedient is a question, not for the Court, but for the Legislature. In my opinion, there is no possible escape from the conclusion that the application must be refused.”

 Chitty, J.

“This is an application made by Miss Regina Guha under Rule 18 of the rules framed by this Court under Section 6 of the Legal Practitioners Act (XVIII of 1879), praying that she may be enrolled as a Pleader and permitted to practise as such in the subordinate Courts of the 24-Perganas. It is conceded that she possesses the necessary qualifications required by the rules and that she has paid the fees prescribed by Rule 27. The only question is whether, as the law and our rules now stand, a person of the female sex can be admitted as a Pleader. We are not here to say what we think the law ought to be, but what it is. Counsel for the petitioner based his argument on the interpretation to be placed on the word “person” and the pronouns following it in the Legal Practitioners Actof 1879. By Section 2(1)of the General Clauses Act, I of 1868, which governed the Act of 1879, “words importing the masculine gender shall be taken to include females.” It was argued that by virtue of this provision the word “person” in the Act of 1879 must be taken to mean a person of either sex, the pronouns following and referring to that word “he,” “him”, “his” being read as “he” or “she,” “him” or “her,” “his” or “hers,” and so forth. The same argument was used without success in the case of Bebb v. Law Society (1914) 1 Ch. D. 286 : 83 L.J. Ch. 363 : 110 L.T. 353 : 58 S.J. 153 : 30 T.L.R. 79 where a lady in England was desirous of being admitted as a Solicitor. Section 48 of the Act of 1843, under which she applied, contained a similar provision. It was, however, pointed out that that section, like Section 2 of the General Clauses Act of 1868, is only to be employed, where there is nothing repugnant in the subject or context. It was held in that case that, inasmuch as there had never been a solicitor of the female sex, the Act of 1843, which neither created a new right nor removed an existing disability, did not contemplate such a contingency. So in the case before us the Legal Practitioners Act of 1879 was not framed to create a new profession but to regulate one which had been in existence for many years. The first Regulation which we find dealing with Pleaders’ profession is Regulation VII of 1793. This described them as “men” and provided, that they must be Hindus or Muhammadans. Successive Regulations and Acts were passed, in which no doubt the class of persons eligible was gradually widened and enlarged, but in which there was never any question as to the sex of the profession. Thus we find Regulation X XVII of 1814, Act I of 1846, Act XVIII of 1852, and Act XX of 1865 all dealing with the subject. Before the passing of the General Clauses Act of 1868 it was necessary to have a special section providing that words importing the masculine gender should be taken to include females (e.g., Indian Penal Code Act, XLV of 1860, Section 8). No such section is to be found in any of the Regulations or Acts above referred to. Although in India in the matter of Pleaders one may not be able to go back so far as they did in England in the matter of solicitors, we find that the profession of Pleaders has been in existence for over 120 years as a profession, and that never during that period did any woman become enrolled, or, so far as we know, apply to be enrolled, as a Pleader. We may, therefore, conclude that in passing the Legal Practitioners Act of 1879 the Legislature did not contemplate the enrolment of Pleaders of the female sex, and to read the Act to include females would be certainly repugnant to the subject. I feel some doubt whether the General Clauses Act can apply to rules framed by this Court. No doubt in framing such rules under an Act of the Legislature the Court should not use any particular expression or word in a different sense to that applied to the particular expression or word by the Act itself. But this does not mean that in framing those rules the Court must be taken to have framed them for women as well as men. The rules were framed to meet existing circumstances, that is to say, a profession of Pleaders consisting entirely of men, and cannot by implication be read as including Pleaders of the opposite sex. It has not been, and indeed could not successfully be, argued that the rules as they stand are ultra vires. As the Law stands I am of opinion that a woman cannot be enrolled as a Pleader. J, therefore, agree that the application should be refused.”

 Teunon, J.

I agree with the judgment that has been delivered by the learned Chief Justice and has nothing further to add.

Chaudhuri, J.

I also agree in the judgment delivered by the learned Chief Justice and have nothing further to add.

Sudhanshu Bala Hazra Case

In re Sudhansu Bala Hazra even rewrites history for being first women to assert her right to practice in High Court at Patna. In 1921 she filed a case before Patna High Court. A three-judge bench comprising of- heard the case It fell on Allahabad High Court to enroll the first woman-Justice Dawson Miller, B. Mullick and Jwala Prasad. Justice Jwala Prasad noted Ms. Sorabjee’s admission as Vakil by Allahabad High Court but held that the court can follow traditions laid down by this Court and cannot deviate from Regina’s case, Hazra was granted however granted special leave to appeal before committee of the Privy Council against the judgment of the Patna High Court after deposition Pound 400 as cost in November 28, 1922. Her efforts further translated a passage of Bill to amend Legal Practitioner’s Act, 1879 in North West Province, which led to the opening of gateway for women. Legal Practitioners (Women) Act, XXIII of 1923 was passed.

Do You Know?

Cornelia Sorabji was enrolled on August 24, 1921, by Allahabad High Court. In the Patna case, there is a reference to it. She was enrolled at the English Committee or administrative meeting of the High Court consisting of the Chief Justice Sir Woods Meers. The decision being on the administrative side is not reported. Unfortunately, the Allahabad High Court has not preserved the minutes of the meeting. Cornelia was not only the first woman to be enrolled in India but also the first to be enrolled anywhere in the world under the ‘person’ clause. The only earlier case from South Africa did not last long. It was overruled in the same year. There were others who were enrolled before her but that was due to a special law. The question did not arise subsequently because of the enactment of the Legal Practitioners Women Act in 1923. She is said to have left for Bombay two years after the enrollment and got married.

Cornelia wanted to study law but was told that no woman might do so. She spent a term sitting in on law lectures before she was allowed to read for the B.C.L., “the best that Oxford had to give.” The hazard of being the first woman to do this, Cornelia writes, “found me looking into the barrel of a pistol at the most crucial moments.” She sat for the examination but it was not possible for her to actually qualify as a practicing lawyer until she had been “called to the Bar,” and that she could not do until thirty years later, in 1923, when women were admitted there, and when Cornelia finally acquired the “label I had longed for all my life.”

Though she kept a diary for most of her life, a richer record of her experiences is found in the letters she regularly wrote, initially to her parents in India, later from India to Eleanor Rathbone, the social activist, and campaigner against child marriage in England, and finally from England to the Allahabad.

On her return to India into India 1894, Cornelia made a place for herself working with widows in purdah (most often royalty) who had, under the new legislation, become “wards” of the British government, under whose guardianship their estates now fell, and who had difficulty using the courts. Large sections of her memoirs, India Calling, 1934 describe her life between 1894 and 1923 helping these women.

Conclusion

The legal profession is part of Indian civilisation even before the coming of British. However, the male domination of it was by virtue of its history. By the time Regina Guha’s came legal education came to be imparted to women but to give them right to practice was still not conceptualised. Cornelia had been the first woman to graduate from Bombay University; the next one did so only twenty-four years later, in 1911 itself narrates the struggle of the time. Now the entry of women in the legal profession is not a question but yes the gender scale is yet to balance. The question now lies alone in her presence at all level in the profession but also how this will change the quality of service especially in women sensitive issues besides other areas.

In a country with 1.3 million advocates, Uttar Pradesh still, leads in terms of a number of lawyers enrolled followed by Bihar, Goa, and Maharastra. Time has changed and now the entry of women in the legal profession is not a question but yes the gender scale is not as yet balanced. The question now lies alone in her presence at all level in the profession but also how this will change the quality of service especially in women sensitive issues besides other areas.

1923 is a watershed in India because it gave women in India right to practice law. However, statistics at one of the website show that women prefer to enter the profession as part of firms rather than starting their own independent practice. Women still constitute lesser fraction in India at levels in the Indian legal system. Till 1991, the profession was marked by complete male dominance at all levels. In 1999, the Delhi Bar Council even had about 103 female lawyers enrolled. Therefore there is more and more need to celebrate the journey of lawyers like Cornelia, Regina, Sudhanshu and Somerville Law College Oxford do remember its First Indian women law graduate from India time to time. The real question now is how does Indian Legal fraternity, bar associations remember this contribution of the stalwart lawyers and the initiative of Allahabad High Court which created history.

Knowing Dress Code of Indian Lawyers

The dress code of lawyer is different from that of other professional. It is important to understand what it means wearing black coat with neck band and gown not only for lawyers but other professionals.

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legal systems update

Introduction of Lawyer: His Dress Code

Dress code is a symbol of confidence, a symbol of discipline and a symbol of the profession, a proud part of an individual’s personality for a professional. The balance between maintaining court’s decorum and permitting freedom in individual’s lifestyle is most well defined in a lawyer’s dress code. The professional environment generally is marked by a code for dressing- in terms of color, style. The American standards of criminal justice say that because the attorney is an officer of the court, he should support court’s dignity by following the court rules of decorum. Traditionally, English court regulated Barrister’s dress code in such a manner, that even the growth of attorney’s beard or cut of his clothes was subject to scrutiny. India in terms of lawyer’s dress code inherited the system after British rule with minor modifications with times. The present article captures the journey.

The Gown and the Wig

In February 1685, when King Charles II of England died, people started wearing a gown as a symbol of mourning for their King’s death. It was then that the uniform for a lawyer was designated. It was believed that wearing a wig and gown awarded a degree of anonymity to lawyers and judges. Wigs first appeared in the legal profession in 17th Century during the reign of King Charles II at the time of restoration of the monarchy. They were fashionables among English Upper class after the court of Louis XIV of France inspired King Charles II. Lawyers and judges started wearing wigs around 1680. For 150 year the legal wig was usually of powdered white or gray hair. In 1822, Humphrey Ravenscroft invented a legal wig made of whitish-gray horsehair that did not need frizzing, curling, perfuming or powdering. Despite going out of fashion, continued to be worn, as a matter to distinguish the legal professionals. Original wigs were made of horse, goat or human hair were difficult to maintain too. Wigs went out of fashion as a powder tax that was imposed after French revolution in 1790. When England’s first female barrister was called in 1822 to the bar to discuss on what she should wear at court. She was allowed to wear the wig but with no hair showing in front and long hair showing at back tied. 

The color: Black and White

homeBlack and white is a symbol of the legal profession throughout world barring few exceptions. Black color generally has many different overtones. Like every color, it has both positive and negative connotations. So, on one hand, it signifies death, evil and mystery while on the other hand, it signifies the strength and authority.

The black color was chosen because of two reasons. Firstly, colors and dyes were not readily available back then. Purple signified royalty and thus, the only abundant fabric color left was black. However, the main reason behind wearing a black coat is because black is the color of authority and power. Black represents submission of oneself. Just like priests wear black to show their submission to God, lawyers wear black to show their submission to justice. The color white signifies light, goodness,

The color white signifies light, goodness, innocence, and purity. As a legal system is the only hope of justice for a common man, the color white is chosen to represent him. As the Indian system is influenced by its British rulers due to their reign, the Advocate’s Act of 1961 makes it mandatory for a lawyer to wear a black robe or coat with a white neckband on top of it in the continuity of the same. Lawyers both the sides- petitioner and respondent wear a similar dress code. The significance of the color also highlights that law is blind. To say that it is only based differentiates on the weight of evidence and not on any other factor.

The Neckbands

imagesThe white neckbands too have their origins rooted in England. In the old English Courts, the barristers-at-law used to wear white bands as part of their uniform. Since the Barristers were the first lawyers of Indian Courts, their dress was adopted as a symbol of advocates in our country. The two pieces of white cloth joined together to form the advocate’s bands represent the Tablets of the Laws or Tablets of Stone. These are the tablets that, according to the Christian belief, were used by Moses for inscribing the 10 commandments, which he received from a burning bush on Mt. Sinai. The 10 commandments are believed to be the first example of a uniform coded law. The shape of the band is also similar to the rounded off rectangular tablets. Thus, the white advocate’s bands represent the upholding of the laws of God and of men.

The Test of Attire: Dressing Sense Male vs. Female

The United Supreme Court requires attorney’s appearing before the court to wear a conservative business dress. However, a test of attire for a dress requirement for a female attorney is generally judged from women’s good taste, common sense, and discretion. Sandstorm vs. State [Alaska Court of Appeal: 309 so 2nd 2d 17 (Fla app. 1975)] the court applied the test of attire that it must be reasonably related to the administration of justice.

The issue of personal liberty and the dress code was also taken up before several courts in America- the Alaska Supreme Court in Friedman vs. District Court [611. P2d. 77 (Alaska 1980)]. In this case, the apex court held that judge can regulate the attorney’s dress but cannot impose something, which is unduly rigid or dictates matters of taste or preference and bears no reasonable relationship to the proper administration of justice. The courts in New Hampshire have a test of attire on the basis of “unsuitable”, “unconventional” or “inappropriate” in the orderly administration of justice.

In case of a female test of attire, US Supreme court has held that test to be applied is to be based on not what court personally thinks but whether there is the reasonable basis of court’s decision keeping in mind the contemporary conditions.

In India, the dress code as per the Bar Council Regulations.

The Regulations of the Bar Council of India

Section 49 of the above Rules govern the dress code for the advocates appearing in the Supreme Court, High Courts, Subordinate Courts, Tribunals or Authorities. They shall wear the following as part of their dress, which shall be sober and dignified.

I. Dress Code for Advocates in India 

Part VI: Chapter IV of Bar Council of India Rules: Rules under Section 49(1) (gg) of the Advocates Act, 1961.

1. COAT

(a) A black buttoned up coat, chapkan, achkan, black sherwani and white bands with Advocates’ Gowns. 

(b) A black open breast coat, White shirt, White collar, stiff or soft, and white bands with Advocates’ Gowns.

In either case wear long trousers (White, Black Striped or gray) or dhoti excluding jeans. 

2. BLACK TIE

Provided further that in courts other than the Supreme Court, High Courts, District Courts, Sessions Courts or City Civil Courts, a black tie may be worn instead of bands.

II. Lady Advocates 

Lady Advocates may wear either the dress prescribed in Sub-Rule (b) or the following:

(a) Black full sleeve jacket or blouse, White collar, Stiff or soft, with white bands and Advocates’ gowns.  White blouse with or without a collar, with white bands and with a black open breasted coat.

OR

A. SAREE OR LONG SKIRT

(b) Sarees or long skirts (white or black or any mellow or subdued color without any print or design) or flare (white, black or black stripped or gray) or Punjabi dress churidar kurta or Salwar-Kurta with or without dupatta (white or black) or traditional dress with black coat and bands.

B. ADVOCATE’S GOWN

Wearing of Advocates’ gown shall be optional except when appearing in the Supreme Court or in High Courts.

C. BLACK COAT

Except in Supreme Court and High Courts, during summer wearing black coat is not mandatory.  These amendments have been approved by the Hon’ble Chief Justice of India vide letter Dated. 12-11 -2001 subject to the incorporation of ‘except in Supreme Court and High Court during summer wearing a black coat is not mandatory’ which is now added as Rule IV of the Bar Council Rules.  This was based on representation based on a group of lawyers from Tamil Nadu.

The amended rules in chapter IV, part VI of the Bar Council of India Rules relating to “Form of Dresses or robes to be worn by Advocates” had been communicated to the State Bar Councils vide our circular No. 6/2002 dated 25.01.2002. The Bar Council of India at its meeting dated 23rd/24th February 2002 considered the doubts raised relating to dress rules and after consideration, the following decision has been taken:

“In the change brought about in the dress rules, there appears to be some confusion in so far as the sub courts are concerned. For removal of any doubt it is clarified that so far as the courts other than Supreme Court and High Courts are concerned during summer while wearing black coat is not mandatory, the advocates may appear in a white shirt with black or striped or gray pant with black tie or band and collar”.

Two classes of advocates are recognized under the Advocates Act, 1961- Senior Advocates and other Advocates.

III. Dress Code in Public domain

An advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe.

Litigation and News regarding Dress Code

1. In Prayag Das v. Civil Judge Bulandshahr [AIR 1974 All 133] The petitioner claims to have launched a crusade for securing recognition to Dhoti and Kurta as court dress. For that purpose he gave notice to the High Court, the District Judge, Bulandshahr and other Civil Judges of Bulandshahr, Bar Council, Uttar Pradesh, Bar Council of India and the two Bar Associations of Bulandshahr to the effect that he shall wear Dhoti and Kurta in courts from 5-2-1973. Pursuant to that object the petitioner chose to appear before the respondent No. I in Kurta and Dhoti in a consolidation reference on 17-2-1973. The learned Civil Judge passed order that since the applicant was not in the proper dress he refused to permit him to put his appearance in his court. On an application moved by the petitioner’s client, the respondent No. 1 passed another order on 27-2-1973 affirming his previous order and holding that the petitioner shall not be entitled to put in an appearance in the case until he appeared In the prescribed dress before the court.The above case relates to a challenge made by the petitioner who was an Advocate while taking exception to the dress prescribed for Advocates. When he appeared before the Court challenging an order of the Civil Judge Bulandshahr preventing him from appearing in the Court and a direction was sought to permit him to appear in the Court as an Advocate wearing Dhoti, Kurta and Gown as his dress. The respondent No. 1 based his order on the provisions of Rule 615, General Rules (Civil), 1957, and held that the petitioner did not comply with the same and was, therefore, not permitted to appear in his court. The aforesaid rule runs as follows:–

“They shall also wear distinctive costumes as indicated below:–

(i) Presiding Officers: a gown, made from the pattern of Queen’s Counsel’s gown of black silk or stuff, with bands;

(ii) Advocates: a gown similar to a barrister’s gown with bands; and

(iii) Pleaders and Vakils: a gown similar to the gown worn by presiding officers, but Without sleeves and bands.

If it is desired to wear a headdress, a turban may be worn.”

The Bar Council of India framed rules under Section 49 of the Act. Rule 5 of the Rules provides:-

“An Advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable.”

The Preamble of the Rules is also significant and may be quoted.

“An Advocate shall, at all times, comport himself in manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate.” 

The Bar Council did not make any rule prescribing the dress. That was left to the High Court. Acting under Section 34(1) of the Advocates Act the High Court framed rules of which Rule 12, which is relevant for the case, is to the following effect:

“12. Advocate, appearing before the Court shall wear the following dress:

(1) Advocate other than lady advocates:

(a) Black buttoned up coat chapkan, Acnakan or Sherwani, Barrister’s gown and bands or

(b) Black open collar coat, white shirt, white collar, stiff or soft, with Barrister’s gown and bands.

(2) Lady Advocates:- A regional dress of subdued colors with Barrister’s gown and bands.”

On the basis of the above-mentioned rules, the petitioner has advanced an argument that there is no rule prescribing a dress for Advocates and hence they are at liberty to wear any dress while appearing in courts. It was submitted that the Bar Council alone had the power under Section 49(c) of the Advocates Act to prescribe the dress for Advocates but it had refrained from framing any rules on that subject. On the other hand, the High Court had framed Rule 12 under Section 34(1) of the Advocates Act prescribing dress for Advocates, though the High Court had no power to frame any such rule under that provision. Under Section 30 of the Advocates Act “subject to the provisions of this Act, every Advocate whose name is entered in the common roll shall be entitled as of right to practice” “in all courts including the Supreme Court.” This right to practice could be curtailed only by the Bar Council of India by framing rules under Section 49(ab) of the Advocates Act The High Court could not frame rules so as to curtail or destroy that right and Section 34(1) of the Advocates Act could not be construed so as to include the power to prescribe dress for Advocates. The power to prescribe dress vested in the Bar Council alone. Consequently. Rule 12 framed by the High Court prescribing dress for Advocates was void.

The Hon’ble court held that it is correct that the High Court does not possess the power to take away an Advocate’s right to practice in courts. That power can be exercised only by the Bar Council, which may also frame rules under Section 49(ab) of the Advocates Act.

Right to Practice vs. Right of appearance [Section 34 (1) and Section 49 (ab) of the Advocates Act, 1961] 

(1) But in our opinion, the High Court has the power to regulate the appearance of Advocates in Courts. The right to practice and the right to appear in courts are not synonymous. An Advocate may carry on chamber practice or even practice in court is various other ways, e.g., drafting and filing of pleadings and Vakalatnama for performing those acts. For that purpose, his physical appearance in court may not at all be necessary.

(2) For the purpose of regulating his appearance in court the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of Advocates and proceedings inside the courts. Obviously, the High Court is the only appropriate authority to be entrusted with this responsibility.

(3) However, so far as the basic qualifications of an Advocate entitling him to practice without physically appearing in court, or disentitling him from doing so are concerned, the determination of such conditions must remain within the exclusive province of the Bar Council.

(4) The same division of functions is borne out by the difference in the language of the two provisions. Whereas Clause (ab) of Section 49 refers to the conditions subject to which an Advocate shall have the right to practice, Section 34(1) deals with the conditions subject to which an Advocate shall be permitted to practice. The expression “permitted to practice” in the context can have only one meaning i.e., the right of physical appearance in Court. The word “permitted” refers to a particular occasion when an Advocate wants to appear in a Court and not to his general right to practice which is solely determined by the Bar Council.

(5) Refusal by a Court to permit an Advocate to appear before it does not amount to the extinction of the Advocate’s legal entity as an Advocate. It merely bars his physical appearance in a particular Court on a definite occasion. For the purpose of deciding as to whether the Advocates physical appearance in a Court may be allowed or disallowed, his dress can be a relevant factor. Consequently, the High Court was competent to frame Rule 12 prescribing Advocates” dress in the exercise of the power under Section 34(1) of the Advocates Act. The words “laying down the conditions subject to which an advocate shall be permitted to practice” must be given a restricted meaning of permitting the physical appearance of the Advocate and not his general right to practice as an Advocate.

We are, therefore, unable to hold that Rule 12 of the Rules framed by the High Court is void or ineffectual.

It is thus manifest that the dress of Advocates has been prescribed by rules framed under Art. 227 of the Constitution, Section 122 of the Code of Civil Procedure as well as under the provisions of the Advocates Acts Advocates are bound to conform to the prescribed dress and this explodes the myth of the untrammeled choice of an Advocate in matters of dress while appearing in courts. The petitioner who was wearing a Dhoti and Kurta with a gown violated the prescribed dress and the learned Civil Judge was within his rights to refuse audience to him and the impugned orders are valid and legal. We are constrained to hold that under the existing provisions of law an Advocate cannot appear in Court, dressed in Dhoti and Kurla, even though he may be wearing a gown.

The next submission of the petitioner was that in any case Rule 12 merely prescribes the dress for Advocates but it does not postulate any penalty for breach of that rule. Hence appearing before the Court in a different dress from the one prescribed cannot be visited with the consequence of preventing an Advocate from appearing in the Court and being heard. In other words, for the default in dress there may be any other penalty such as a complaint to the Bar Council, and, if law permits a complaint on such ground, such action as may be taken for such conduct, but the Court has no authority in law to inflict the penalty of refusing audience to an Advocate for that reason. The omission to provide a penalty was also relied upon by the learned counsel for submitting that Rule 12 was the only directory and not mandatory. This argument has only to be stated to be rejected. The provision for penalty a only one of the criteria for holding that a rule is mandatory but that is not the sole test. The use of the word “shall” in Rule 12 leaves no room for doubt about the mandatory nature of the provision so that it is compulsory for the Advocates appearing before the Court to wear the prescribed dress. We also find no force in the argument that the absence of penalty clause in Rule 12 precludes the Court from refusing to hear an Advocate not wearing the prescribed dress.

In our opinion, there was no need of prescribing penalty in Rule 12 inasmuch as the said rule was framed under Section 34(1) of the Advocates Act and the penalty is embodied in the section itself. The High Court has merely to make rules laying down the conditions subject to which an advocate shall be permitted to practise in Courts. Such conditions have been laid down in Rule 12 and, therefore, in the event of non-fulfillment of those conditions the High Court or a Court subordinate thereto can refuse permission to an Advocate who wishes to appear before it. We have already held that the word “practice” in Section 34(1) implies physical appearance in Court. Withholding permission for such appearance is the penalty embedded in Section 34(1) itself.

Moreover, when a condition is prescribed it’ is meant for being observed not by its breach but by its compliance and there is implied authority to pass such incidental orders as may be essential to give effect to it.

We have already referred to Rule 5 framed by the Bar Council which makes it imperative for an Advocate to appear in Court at all times only in the prescribed dress. The preamble of the rules framed by the Bar Council also lays emphasis on the duty of an Advocate to “comport himself in a manner befitting his status as an officer of the Court.” The power to preclude an Advocate from appearing in Court is by necessary implication vested in that Court in order to enforce the observance of the prescribed dress. In fact, appearing without the prescribed dress is to show disrespect and the Court is certainly entitled to refuse audience. The formal attire associated with certain professions and the utility and necessity of ceremonial dress is recognized in many countries. In England, formerly besides the gown, the suit had to be of black color. It is said that Cockburn, C. J. once declined to give audience to a barrister who happened to be in gray trousers. In an observation which has become classical Byles, J. once remarked that he listened with little pleasure to arguments of counsel whose legs were encased in light gray trousers.

“18. In our opinion, the various rules prescribing the dress of an Advocate serve a very useful purpose. In the first place, they distinguish an Advocate from a litigant or other members of the public who may be jostling with him in a Court room. They literally reinforce the Shakespearian aphorism that the apparel oft proclaims the man. When a lawyer is in prescribed dress his identity can never be mistaken. In the second place, a uniform prescribed dress worn by the members of the Bar induces a seriousness of purpose and a sense of decorum which are highly conducive to the dispensation of justice. Of late there has been a lamentable slackness in matters of lawyers’ dress. We feel that the lifting of a prescribed dress for Advocates and courts is apt to precipitate sartorial inelegance and judicial indecorum. If the rule is relaxed it is not unlikely that Advocates may start dressing themselves more and more scantily and even indiscreetly. The apprehension might be well illustrated by a dialogue which is alleged to have transpired between the Australian squatter and his friend who visited him on his estate far away in the wilds of the interior. The friend asked him why, in so remote a place be made it a practice to dress for dinner. “I do it,” said the squatter, “to avoid losing my self-respect. If I did not dress for dinner I should end by coming into dinner in my shirtsleeves. I should end by not troubling to wash. I should sink down to the level of the cattle. I dress for dinner, not to make myself pretty, but as a spiritual renovation.”

2. Parashar v. Bar Council of India: (AIR 2002 Del 482).The challenge in the said writ petition was in respect of the rules framed under Section 49(1)(gg) of the Act and it was contended that the senior Advocates cannot wear the Queen’s Counsel Gown and it was held at paragraph 7 as under:

7. Having heard the learned counsel for the parties and perused the pleadings, I am of the view that the writ petition as filed is misconceived and devoid of merit for the reasons noted below:

While it is true that the rule framed by the Bar Council of India does not make out any distinction in dress or prescribe the design of a different gown or coat for a senior advocate, yet the distinction has been maintained and followed by a practice of long-standing, even prior to the Advocates Act of 1961. The Advocates Act, 1961 itself has recognized a distinction in S.16 of the Advocates Act, 1961 between the senior advocates and advocates. S.23 of the Act provides for right of pre audience for Senior Advocates among others. The senior advocates constitute a different class within the advocates. Based on the ability, knowledge, experience, expertise and standing at the bar, an advocate is designated as a senior advocate. It is an honor and distinction conferred by the court in recognition of the ability and standing of the concerned advocate. Once the distinction between an advocate and a senior advocate is accepted and accorded statutory recognition, the wearing of a distinct gown or a coat by a senior advocate, which is different from the one worn by advocates, cannot be questioned or assailed as discriminatory or violative of Art. 14 of the Constitution of India. The plea of the petitioner that a bias is created in favour of a senior advocate, who wears a gown with frills or overflowing arms or on account of the design of the coat, in the mind of a Judge is without any supporting evidence or factual foundation and deserves to be outrightly rejected.”

3. CATS: The government has issued a new dress code for all the female judges and lawyers in the Central Administrative Tribunal. The woman judges are now expected to wear a black coat over a white saree or any other form of dress, which stretches to their ankles and with white-collar bands. The female lawyers are also required to wear a saree or any other customary dress of a sober color.

3. 2016: The Madras High Court bench here today closed a PIL seeking to direct Bar Council of India and Tamil Nadu and Pudducherry Bar councils to issue circulars to all Bar and Advocates Associations to give proper instructions to maintain dress code, manner, and conduct in lower courts.  Chief Justice S K Kaul and Justice Nooti R Ramamohanarao closed the PIL after BCI and Tamil Nadu Bar council submitted that most advocates follow the code and there was no need to give any direction.

4. 2017: Lawyers of Calcutta High Court want to give up wearing black gowns and black coats as essential dress code inside the courtrooms. The summer has been unbearable this year, a stretch of heat spell in the months of April and May without any respite from the usual April thunderstorm — Kalbaishakhi. Engaging in an argument in this hot and humid season has been tortuous, not to mention the court room environment — where heated altercation and even light banter keep the mercury soaring any time of the day and any season.

5. Petition for Uniform dress code of Advocates & Senior Advocates: The Supreme Court has dismissed a petition seeking a directive to apply a uniform dress code for both senior advocates and other advocates. A Bench of Justices S Rajendra Babu and G P Mathur dismissed the appeal filed by the Lawyers Reformist Forum after hearing arguments from its counsel N N Keshwani. He said that the rule of Advocates Act did not distinguish between “seniors” and other advocates as far as dress was concerned. The senior advocates wear twin coats with gowns which is slightly different from those worn by other advocates. Keshwani stated that the Delhi High Court had dismissed his petition in this regard without taking into account the fact that the law did not allow separate dresses for the seniors and other advocates. He said that the traditional use of such coats and gowns by the senior advocates was illegal as no tradition could override a law unless specifically provided for by law enacted by Parliament.


Conclusion

  • A Lawyer is an officer of the court and he should support court’s decorum.
  • Wearing of gown started as a symbol of mourning in England. It was then that uniform for lawyers was designated.
  • Wigs were inspired from the court of King Charles II, despite going out of fashion was worn to distinguish legal professionals.
  • The black coat is because black is the color of authority and power. Black represents submission of oneself. The color white signifies light, goodness, innocence, and purity. The significance of the color also highlights that law is blind. To say that it is only based differentiates on the weight of evidence and not on any other factor.
  • The white neckbands have their origins rooted in England. In the old English Courts, the barristers-at-law used to wear white bands as part of their uniform. Since the Barristers were the first lawyers of Indian Courts, their dress was adopted as a symbol of advocates in our country. The two pieces of white cloth joined together to form the advocate’s bands represent the Tablets of the Laws or Tablets of Stone.
  • The Supreme Court has dismissed a petition seeking a directive to apply a uniform dress code for both senior advocates and other advocates. 
  • Part VI: Chapter IV of Bar Council of India Rules: Rules under Section 49(1) (gg) of the Advocates Act, 1961. Earlier, the Bar Council did not make any rule prescribing the dress. That was left to the High Court. Acting under Section 34(1) of the Advocates Act the High Court framed rules.

REFERENCES

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  1. http://ecourts.gov.in/sites/default/files/Notice_43.pdf
  2. https://www.law.ua.edu/pubs/jlp_files/issues_files/vol12/vol12art13.pdf

Amendment to Act providing Free and Compulsory Education to Children

The Bill provides for extending the training period for acquiring minimum qualification, read more to understand who benefits under the Bill.

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Lex Resonance

The Directive Principals of the State Policy lays down for free education to all children up to the age of 14 years. The enactment of the Right of Children to Free and Compulsory Education, Act, 2009 takes care of the education for children of 6 to 14 years and it came into effect on April 1, 2010. Section 23 (1) of the said Act provided for minimum qualification and the proviso to the sub section 23 (2) provided for the period for acquiring the minimum qualification is five years from the date of commencement of the aforesaid Act till 31st March 2015. In view of the expiration of the aforesaid deadline, the training of such appointed teachers and continuing teachers would have discontinued and hence the (Amendment) Bill, 2017 amends the 2009 Act by extending the deadline for teachers to acquire the prescribed minimum qualifications for appointment. The Bill adds to this provision by stating that those teachers who do not possess the minimum qualifications as on March 31, 2015, by virtue of appointment or by being in position will acquire the minimum qualifications as stipulated under the Act within a period of four years i.e. by March 31, 2019.

Supreme Court Query on Cow Slaughter

Every rule made by the Central Government or by the Committee constituted under Section 15 and every regulation made by the Board (Animal Welfare) shall be laid, as soon as may be after it is made, before each House of Parliament. Read the Query of Supreme Court.

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Lex Resonance

Petition filed by: The All India Jamiat-ul-Quresh Action Committee

Ground: For the cause of butchers and cattle traders have assailed the move on the ground that it impinged upon the citizens’ fundamental right to carry out their profession and the right to choice of food

Bench: A bench of Chief Justice J.S. Khehar and Justice D.Y. Chandrachud

Present Issue: According to Section 38A of the Act, “every rule made by the Central Government or by the Committee constituted under Section 15 and every regulation made by the Board (Animal Welfare) shall be laid, as soon as may be after it is made, before each House of Parliament.

Last Status: The notification issued by the Union ministry of environment and forests prohibits the sale of cattle in animal markets unless there is a written declaration that the animals will not be sold for slaughter. The animal market committee will have to take an “undertaking” that the cattle will be used for agriculture only. The Supreme Court had on July 11 halted the Centre’s notification banning the sale of cattle for slaughter, extended throughout the country by May 30 interim ban imposed by the Madurai bench of Madras High Court. The Supreme Court was told that the Centre had not complied with the mandatory requirement of placing the notification for Parliament’s approval.

Directions

The Supreme Court today directed the Centre to explain within a week whether the government notification banning the sale of cattle in animal markets for slaughter had been placed before both Houses of Parliament for approval as required under the Prevention of Cruelty to Animals Act. The Bench passed the direction after additional solicitor-general P.S. Narasimha failed to say with certainty whether the rules had been placed before Parliament.

Replacement of the Supreme Court Judges: Legal Crisis in Poland

International News catching attention is coming from Poland which makes a significant change in Polish Judiciary. Read here to catch the update with an understanding.

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Understanding the Basics around the Development

A. SUPREME COURT OF POLAND

The announcement of the Speaker of the Sejm, Republic of Poland dated February 8, 2013, which states about the formation of the Supreme Court as mentioned below:

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B. WHO IS ELIGIBLE TO PERFORM FUNCTIONS OF A JUSTICE?

A justice as per Article 21 of the aforesaid announcement is appointed by the President of Republic of Poland upon the motion of the National Council of Judiciary. The person eligible to be justice includes:

  • A Polish citizen who enjoys’s full civil and public rights
  • A person of integrity
  • A Polish university graduate with background in law and has obtained Master’s degree or is a graduate of a foreign university with a background of law that is recognised in Poland
  • Is distinguished by high level of juridical knowledge
  • Is fit, as regard to health condition, to perform the justice duties
  • Has served at least 10 years as a judge, public prosecutor, President, Vice President. Senior Advisor or Advisor to Public Prosecutor’s office of the State Treasury or has worked as an advocate for such period in Poland as an advocate, legal advisor or notary public.
The requirements mentioned above shall not apply if the persons are employed by:
  • Polish higher institutions
  • Polish Academy of Sciences
  • Sciences Research Institutes
  • Any other research institutes as professors or doctors habilitated by law.

 


REFERENCES

1.bs00554_Supreme Court of Poland Website

2. http://www.sn.pl/en/about/SiteAssets/Lists/Status_prawny_EN/EditForm/consolidated_text_of_the_Act_on_the_Supreme_Court.pdf

 

Aadhaar: Not valid Id for traveling to Nepal, Bhutan

Traveling between India and Nepal and Bhutan has been in news since long for trade and other reasons. Aadhaar card is not a valid travel document for travel to these nations. Lex resonance section examines the legal current legal news update.

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HEADLINES IN THE INDIAN EXPRESS

Aadhaar has been in news for various reasons and presently a notification issued by Bureau of Immigration, Home Ministry says it is not a valid identification document for Indians traveling to Nepal and Bhutan.

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Understanding Aadhar

Aadhaar is a paperless online anytime-anywhere identity assigned to a resident to cover his/her entire lifetime. The verification of his identity is done online with the help of authentication devices which connect to UIDAI’s Central Identity Repository and return only a ‘yes’ or ‘no’ response to the basic query-“Is the person who he/she claims to be?” based on the data available with UIDAI. This is achieved through the process of demographic and biometric de-duplication. The de-duplication process compares the resident’s demographic and biometric information, collected during the process of enrolment, with the records in the UIDAI database to verify if the resident is already in the database or not. An individual needs to enroll for Aadhaar only once and after de-duplication, only one Aadhaar shall be generated. In case, the resident enrolls more than once, the subsequent enrolments will be rejected. Aadhaar number is a random number devoid of any intelligence. A person willing to enroll has to provide minimal demographic along with biometric information during the enrollment process. The Aadhaar enrolment process does not capture details like caste, religion, income, health, geography etc. The following events around the constitutional validity of Aadhaar remained in focus.

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Aadhar and the Travel Advisory for Bhutan and Nepal

Indians can travel to Nepal and Bhutan — both countries for which they don’t need visas — if they possess a valid national passport having a validity of 6 months and election ID card issued by the Election Commission. Moreover, to ease travel, persons over 65 and below 15 years can show documents with photographs to confirm their age and identity. These include PAN card, driving license, Central Government Health Service (CGHS) card and ration card but not Aadhaar. “Aadhaar (UID) card is not an acceptable travel document for travel to Nepal/Bhutan,” a communique issued by the Ministry said.

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REFERENCES

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1. Embassy of India, Bhutan: https://www.indianembassythimphu.bt/pages.php?id=52

2.Unique Identification Authority of India: https://uidai.gov.in/your-aadhaar/about-aadhaar/feature-of-aadhaar.html

3. Bureau of Immigration, Ministry of Home Affairs: http://boi.gov.in/

Please Note: The page is informatory. The concerned Ministry notification is the final statement on the subject.