If I were to tell you that you have the right to study law and get ‘qualified’ to become a lawyer but you do not have the right to become a lawyer, you’ll probably laugh at me and rightly so. However, as absurd as it may sound today, this was the reality for women in India more than a century ago when they were allowed to study law but were not allowed to be enrolled as lawyers. This was because the Legal Practitioners’ Act, 1879 (Act XVIII of 1879), as it stood then, did not recognise women as “persons” to be enrolled as pleaders and wholly excluded the entry of women into the profession.
Section 5 of the Legal Practitioners’ Act (as it stood then) read as:
“Except as hereinafter provided, no person shall appear, plead or act as a Pleader, or appear or act as a Mukhtear in any Court to which this Act extends, unless he shall have been admitted and enrolled and shall be otherwise duly qualified to practise as a Pleader or as a Mukhtear, 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 Mukhtear 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 there, in 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 practise.”[1]
Section 6 of the Legal Practitioners’ Act enabled the High Court to make rules consistent with the Act as to, inter alia, the qualifications, admission and certificates of proper persons to be pleaders in the subordinate Courts.
The use of the words like “he,” “him”, “his,” under Section 5 resulted into High Courts making Rules for qualifications, admission and certificates of proper persons to be pleaders in the subordinate Courts, allowing only men to become pleaders.
In the 19th century, while the women were gaining access to education and a number of legal reforms were taking place recognising the rights of women, the entry of women to the professional world was still far from becoming a reality. Legal profession was considered to be a ‘gentlemen’s profession’ and women were “banned” from becoming pleaders. However, this soon changed when three women, from different parts of the country, came forward and challenged the male dominance in legal profession. These three women were Regina Guha, Sudhansu Bala Hazra and Cornelia Sorabji.
Regina Guha’s case before Calcutta High Court
Regina Guha, daughter of an established criminal lawyer in Calcutta, obtained a Bachelor of Law degree from Calcutta University in 1916 and submitted an application for admission to be enrolled as pleader, which was subsequently forwarded to the Calcutta High Court[2].. This is was the first person’s case initiated in India.[3]
A special bench of five judges i.e. Justices L. Sanderson, A. Mookerjee, W. Chitty, Teunon and Chowdhury, was constituted to hear this ‘unusual’ application, which, at the outset of the hearing, made it clear that
“…it is not the function of the Court to express any opinion as to whether it is desirable that women should be admitted as pleaders in the Courts subordinate to the High Courts and that this Court was formed merely for the purpose of deciding the question in a judicial capacity.”
The case for seeking entry of women in legal profession was made on the ground that women practitioners were needed, to give legal advice to purdanashin women.
Advocate Eardley Norton, appearing for Guha, argued:
“There is no doubt that the petitioner has got the necessary qualifications for admission as a pleader. She applied to the District Judge under Rule 27 of the Rules framed by this Court under the Legal Practitioners Act. By that Rule, any person who has passed the B.L. Examination may be admitted as pleader. There is nothing in the Rules to show restriction against females. See the General Clauses Act, 1897, ss. 3(39), 13(1). These words importing the masculine gender include females. The Penal Code, 1860 also makes no distinction of sex. “Any person” in that Rule includes males as well as females. This is not repugnant to the context of the Act. Even if the Rules as a whole indicate that only males are meant, I would contend that the Rules cannot abrogate the right of any one, if he or she falls within the rights allowed by the Statute.”
He further argued that “qualifications” refer to education, respectability and character and that they have no reference to sex.
“If the Act authorises both men and women to be pleaders, you cannot restrict women by your Rules.”
Sanderson, CJ, in his judgment, wrote that the Legislature in 1879 did not intend to make such “a radical change” in the constitution of the profession of pleaders as would be caused by the admission of women merely by the application to the 1879 Act of the provisions of the General Clauses Act, 1868[4].
“…having regard, to the constitution of the profession of pleaders, existing at the date of the passing of the 1879 Act and to the fact that the whole trend of legislation for a long time had been to confine the profession to men, in my judgment, both the subject-matter of the legislation and the context are repugnant to a construction of the Act which would include females.”
He was of the opinion that such a disability could not be removed by a mere interpretation clause.
Mookerjee, J, in his judgment, noticed that when the British Courts were first constituted in 1772, the rulers found men alone as legal practitioners. Later, even the Legislators contemplated men alone as members of the profession. Considering that there had never been a departure from that policy, he wrote,
“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.”
Chitty, J, in his judgment, wrote
“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.”
Teunon and Chowdhury, JJ were in agreement with the judgment delivered by Sanderson, CJ.
Since all 5 judge were of the opinion that the Rules were framed to meet existing circumstances and that it was not for the Court to deviate from the long-standing trend of confining the legal profession to men, it was, therefore, unanimously held that
“a woman cannot be enrolled as a pleader.”
As fate would have it, Regina Guha, the torchbearer of the fight to make “women in law” a reality in India, did not live to see the passage of the Legal Practitioners (Women) Act, 1923 which superseded this 5-judge bench decision of the Calcutta High Court and prohibited discrimination on the basis of sex in the matter of enrolment.[5]
Sudhansu Bala Hazra’s case before Patna High Court
Five years after Regina Guha made an attempt to enter the legal profession, another law graduate Sudhanshu Bala Hazra initiated the second ‘persons case’[6] in India before the Patna High Court.
Jhuma Sen, in her article, extensively deals with the history of women lawyers in India and writes that born to Bengali Christian parents, Hazra was adopted by Madhusudan Das, a lawyer from Orissa who advised her to study law. [7] Like Guha, she too obtained the degree of Bachelor of Law from the University of Calcutta. She then made an application to the District Judge of Patna, to be enrolled as a pleader. The application was forwarded to the High Court according to practice.
It is pertinent to note that from the first person’s case filed by Regina Guha in 1916 to the second person’s case initiated by Hazra in 1921, one major event had already taken place. The United Kingdom had passed the Sex Disqualification Removal Act, 1919 which paved the way for the entry of women in the legal profession.
When the full bench of Dawson Miller, C.J. and Mullick and Jwala Prasad, JJ assembled to hear Hazra’s case, Advocate Manuk, appearing for Hazra, based his case on Rule 3, Chapter 11 of the Rules and Circular Orders of the Patna High Court, adopted en bloc from the Calcutta High Court, which stated that a person who applies to be enrolled as a pleader must have obtained the B.L. degree. He argued that since Hazra had a degree of Bachelor of Law, there was no reason she could not be enrolled as a pleader.
He also made a strong argument in Hazra’s favour based on the Calcutta University Act, 1857[8] where too the masculine pronoun “he” was used. Though initially the Legislature had prohibited women from obtaining academical distinctions and that there was no interpretation clause in the University Act itself, whereby the masculine is to include the feminine, notwithstanding this, it was conceded that women had been allowed to qualify and become Bachelors of Law. This showed that
“the mere presence of the masculine pronoun does not mean that women are excluded.”
Citing the passing of the Sex Disqualification Removal Act, 1919 in the favour of his client, advocate Manuk submitted,
“To say that a woman is disqualified is to create a disability, and you cannot create a disability by omitting to include them in an enabling Act. You are simply not thinking of them. When you want to create a disability there must be a positive enactment Creating that disability. If a disability was created by precise words then it must be removed by precise words. As a precise disability had been created by the Common Law in England a precise enactment was held to be necessary.”
Arguing that after the coming into force of the Sex Disqualification Removal Act, 1919, if the Courts admit the Englishwomen and refuse to admit the Indian women, it will create a “national disqualification”.
“There is this anomolous position that there is no longer a sex disqualification to prevent an Englishwoman from practising at the Bar in India, while the Indian woman is shut out.”
Dawson Miller, CJ, in his judgment, wrote that the intention of the Legislature was not to bring about a change, of such magnitude by the language employed in the Legal Practitioners’ Act. Rather by the date when that enactment was passed the word pleader had by inveterate usage acquired a definite meaning connoting a male person which obviated the necessity of emphasising the sex of the persons included under the term.
He also referred to the judgment delivered by Calcutta High Court in Regina Guha case[9] and noticed,
“The inveterate usage in this country as in England has been to exclude women from admission as pleaders and although there may have been no express prohibition such as that founded upon the dictum of Lord Coke referred to in Bebb v. Law Society[10] the inveterate usage has been similar in both countries and I agree with the opinion expressed by Mukherjee, J, in Re Regina Guha[11], that the case of Bebb v. Law Society[12] furnishes valuable aid as to the mode in which the problem should be approached.”
Mullick, J. went on to write in his judgment that it was indeed the intention of the framers of the Legal Practitioners’ Act of 1879 that women should not be admitted to practise as pleaders.
“It was not merely a lapse or an omission—a failure to realize the exact import of the words used in the Statute and of the bearing upon them of the current General Clauses Act (Act I, 1868), but in my opinion it was a deliberate re-imposition of the disability which had hitherto been imposed upon the female sex.”
He emphasised that though there was no intention to proclaim the inferiority of the sex either in attainments, intellect or character, however, having regard to the previous history of the relation of the sexes and the general position of women in the country the legislature was of opinion that “it would be repugnant to ideas of decorum to permit women to join legal profession.”
Jwala Prasad, J., in his judgment, took note of the radical decision taken by the Allahabad High Court by enrolling a lady as a Vakil. (This lady was Cornelia Sorabji, the first woman to be enrolled as a lawyer in India.)
Though Prasad, J. held that Hazra could not be enrolled as a pleader, he highlighted strong points in favour of allowing women in legal profession.
“No doubt the recent admission of Miss Sorabjee in the Allahabad High Court might create some anomaly inasmuch as ladies enrolled as Vakils in the Allahabad High Court may claim to practise in occasional cases in the courts subordinate to this Court under section 4 of the Legal Practitioners’ Act, although no lady will be permitted to be enrolled in our own High Court. This again is a very good ground for changing the present law.”
He, however, said that since in matters of practice, Patna High Court followed the tradition of the Calcutta High Court, it was not possible to deviate from the decision of that Court passed on the 29th of August, 1916, in Regina Guha’s case.[13]
Though the unanimous decision of the Court in Hazra’s case was that women were not entitled to be enrolled as pleaders of Courts subordinate to the High Court and that making and amending laws was the job of the legislature, this judgment started a movement towards bringing a change to the then existing laws. As a result, the Legal Practitioners (Women) Act was passed in 1923, removing the disqualification and affirming that “no woman shall, by reason only of her sex, be disqualified from being admitted or enrolled as a legal practitioner or from practising as such”.[14]
Cornelia Sorabji’s enrolment as a Vakil
On 21st August, 1921, the Allahabad High Court took the lead and allowed the application of Cornelia Sorabji to enrol as Vakil[15]. She, hence, became the first woman advocate of India. This enrolment of Sorabji was done by a decision of the English Committee of the Court consisting of the Chief Justice and the Judges present in Allahabad under rule 15 of Chapter XV of the Allahabad High Court Rules.[16]
Sorabji was a woman of many first. Defying all odds, Sorabji became the first woman to graduate from the University of Bombay, and the first woman and the first Indian to study law at Oxford.[17]
She worked for many years as a legal advisor to women and children on matters in provincial courts, and as a ‘Lady Assistant’ to the Court of Wards, before becoming the first Indian woman to be enrolled as a Vakil.
In Regina Guha case[18], when Sorabji was yet to be enrolled as a Vakil, advocate Eardley Norton, had brought Sorabji’s appointment as legal adviser of the Court of Wards to Calcutta High Court’s notice in support of his case. He had said:
“The liberal tendency of the Legislature here is shown in the appointment of Miss Sorabji as legal adviser of the Court of Wards.”
This decision of Allahabad High Court, along with the observations made in the Patna High Court’s decision in Sudhansu Bala Hazra’s case[19], created a favourable atmosphere for women which led to the passing of the Legal Practitioners (Women) Act, 1923 which said that women cannot be disqualified by reason only of sex[20].
Conclusion
Though the enrolment of Cornelia Sorabji as Vakil by the Allahabad High Court is considered to be the watershed moment, the efforts of Regina Guha and Sudhansu Bala Hazra were equally revolutionary which led to opening the gateway of legal profession for women in India. While one cannot help but wonder how difficult it must have been for these women to enter male-dominated spaces and get their voices heard and respected, its stories of women of indomitable spirit like these that make you and I believe that all it takes to break through the proverbial glass ceiling, is sheer determination and perseverance.
* Associate Editor, EBC Publishing Pvt. Ltd.
[1] Regina Guha, In re, 1916 SCC OnLine Cal 192
[2] The Indian Women Who Fought Their Way Into the Legal Profession by Jhuma Sen, The Wire, February 13, 2019.
[3] Regina Guha, In re, 1916 SCC OnLine Cal 192
[4] General Clauses Act, 1868 [Repealed by Act, 10 of 1897]
[5] No place for women in temples of Justice, by Arvind Jain, Forward Press, June 12, 2019
[6] Sudhansu Bala Hazra, In Re, 1921 SCC OnLine Pat 20
[7] The Indian Women Who Fought Their Way Into the Legal Profession by Jhuma Sen, The Wire, February 13, 2019
[8] Calcutta University Act, 1857 [Repealed by W. Ben Act, 18 of 1951]
[9] Regina Guha, In re, 1916 SCC OnLine Cal 192
[10] (1917) I.L.R. 44 Cal. 290 F.B.
[12] (1917) I.L.R. 44 Cal. 290 F.B..Hon
[14] The Indian Women Who Fought Their Way Into the Legal Profession by Jhuma Sen, The Wire, February 13, 2019
[15] Unveiling of the Portrait of Late Smt. Subashini Arulmozhi, Advocate, Coimbatore, by . Mr. Justice C. Nagappan on 30.11.2001 at Coimbatore Bar Association, (2002) 1 LW (JS) 70
[16] Sudhansu Bala Hazra, In Re, 1921 SCC OnLine Pat 20
[17]Faculty of Law, University of Oxford; Alumna: Cornelia Sorabji,
[18] Regina Guha, In re, 1916 SCC OnLine Cal 192
[20] 3. Women not to be disqualified by reason only of sex.—Notwithstanding anything contained in any enactment in force in 1[the territories to which this Act extends] or in the letters patent of any High Court or in any rule or order made under or in pursuance of any such enactment or letters patent, no woman shall, by reason only of her sex, be disqualified from being admitted or enrolled as a legal practitioner or from practising as such; and any such rule or order which is repugnant to the provisions of this Act shall, to the extent of such repugnancy, be void.
Interesting article