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
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.
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.
