Friday, April 21, 2006

PRETTY ONES

Conelia Sorabji - courtesy Wikipeda
This article traces history of ‘Person’ clause cases where women claimed equal rights with men and the Allahabad High Court, which has the distinction of enrolling, Cornelia Sorabji, the first woman advocate under the Person clause.


ALLAHABAD HIGH COURT
It has been a long time since 1861, when the Allahabad High Court was established. In these years the Allahabad High Court has established traditions, peculiarities, and distinctions.


One distinction is special- but before that some history.


In the last century a dual judicial system was prevalent: the royal courts, the Supreme Courts in the three presidency towns and the Company courts - the Sadar Adalats. The Sadar Adalats of the Bengal presidency at Calcutta governed the North Western Provinces. It was thought proper to judicially administer them through a separate Sadar Adalat. This was done by the Bengal Regulation of 1831. The Sadar Adalat was ordinarily to be based at Allahabad but started at Agra.


There were two parallel judicial systems at that time. They exercised independent, but often-concurrent jurisdiction, jealously viewing the exercise of power by each other. And what hence could they produce but infighting and confusion. There was a debate to consolidate them. The East India Company was dissolved after the uprising of 1857 and the British Crown took over. The need to consolidate them became imperative.


The Indian High Courts Act, 1861, provided for abolition of the dual system and establishment of High Courts. Accordingly the High Courts were established at Calcutta, Bombay and Madras. They were the fusion of the Supreme Courts and the Sadar Adalats and inherited their jurisdiction. They still have original jurisdiction in all matters subject only to pecuniary limits (see Endnote-1).


The Act of 1861 also provided for the establishment of a High Court for the North Western Provinces. This was done by notification in the official gazette of 13 June 1866. It was the first and the only High Court to be set up in the last century by upgrading a Sadar Adalat and inheriting its jurisdiction. This was appellate only; with limited original jurisdiction relating to the British. Today the Allahabad High Court has original jurisdiction in matter of probate, company and election petitions as in any other High Court.


The Sadar Adalat used to sit at Agra. There was no building at Allahabad. A Bench started sitting there. Then the full court sat from 1869, known as the Allahabad High Court. The building was completed in 1870. It is said that the only thing wrong with it was that one could not hear or see inside the building. But the Calcutta High Court building was even worse. Today the old building houses the Board of Revenue. The High Court moved to a new building in 1916.


LUCKNOW BENCH
A Bench of the Allahabad High Court also sits at Lucknow. There are historical reasons for this. While regulations could be made for the three presidency towns, there was no power to frame regulations for the newly acquired territories. The Governor General in Council with his seat in Calcutta started governing them in his executive capacity. They came to be known as ‘Non-Regulation territory’. Oudh was one such territory. A judicial commissioner's court was established in Oudh in 1856. It was the highest court for Oudh in 1871. Its status was raised by the Oudh Court Act of 1925. It used to sit at Lucknow and was merged with Allahabad High Court on 26 July 1945. This is the reason for the Bench at Lucknow.


PERSON CLAUSE CASES
Women all over the world were claiming equal rights with men at about the same time that the Allahabad High Court was established.. 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 practise. And soon a question was raised. Does the word person include women?


In the first case Chorlton Vs Lings (1869) the word ‘man’ was used. 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 were not entitled to vote. Then started the person cases holding that women were not included in the term person. They are Beresford-Hope Vs Lady Sandhurst (1889), Ball Vs Incorp, Society of Law Agents (1901). Gray's Inn refused to enrol Berthe Cave in 1903. The House of Lords in Nairn Vs Scottish University (1906) expressly held that women did not fall within the meaning of the term person. In Benn Vs Law Society (1914) the Court of Appeal opined similarly.


This trend continued in England. Lord Curzon, former Viceroy of India was the leader of the anti suffrage movement. He, from his experience as Viceroy 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. Believe me, such arguments prevailed until 1918 when women were given the right to vote. The Sex Disqualification Removal Act in 1919 removed the other disability in England.


The US Supreme Court in Bradwell Vs Illinois (1875) held that a State could preclude a married woman from practising law. Though, two years later in Minor Vs Happier Sett, it conceded that women were citizens as well as persons but held them to be a special category of non-voting citizens. In 1894 a U.S. Supreme Court decision denying women the right to practise law on the grounds that the word person meant men only. The problem in the US was partially solved by ratification of the 19th Amendment to the US Constitution (1920) permitting women over 21 to vote.


South Africa deserves special mention. In the first case Schle Vs. Incorporated Law Society (1909) it was held that women were not included in the term person and were not entitled to become attorneys. But in a subsequent case in 1912 the Cape Supreme Court held that the term person included women and were entitled to become attorneys. It is said to be the first decision of its kind. But it did not last long. In an appeal against it, the appellate courts in the Incorporated Law Society Vs. Wookey (1912) overruled the decision. It took the established line that women were not included in the term person.


The curtain to person cases was rung down in the western world in a Canada case Edwards Vs Attorney General. The Supreme Court of Canada had unanimously decided that women were not included in the term persons. In appeal, the Privy Council, in a one-line ruling, expressed the obvious.
'The word person may include members of both sexes and to those who ask why the word should include females the obvious answer is "Why not?"'
But this was in 1929.


INDIAN CASES
India also had its share of person cases but not many. Legal practitioners were enrolled by the High Courts until recently, when the work was taken over by the Bar Council. The Legal Practitioners Act used the word person. The Calcutta and Patna High Courts while dealing with the enrolment of women, held that they were not included in the word persons and rejected the applications. These cases are reported in In re Regina Guha, ILR 44 Calcutta 290 and In re Sudhansu Bala Hazra, AIR 1922 Patna 269. It fell on the Allahabad High Court to enrol the first woman.


Cornelia Sorabji (see Endnote-2) was enrolled on August 9, 1921. In the Patna case there is a reference to it. She was enrolled at the English or administrative meeting of the High Court. The decision being on the administrative side is not reported. 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 earlir case from South Africa did not lost 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.


It is not known if Cornelia argued any case (see Endnote-3). At least none is reported. She was a Parsi girl from Bombay. She came to Allahabad to set up the house of her brother who chose to practise there. She is said to have left for Bombay two years after the enrolment. This trend continues in the Allahabad High Court. Very few women are practising here. Even the lower courts have many more. It is sad that the court that enrolled the first woman is denied the grace and charm of the fairer sex.


Endnote-1: The Delhi High Court was established after India became independent. It also has original jurisdiction in all matters like Calcutta, Bombay and Madras: May be to be at parity with the three metropolitan towns. These four High Courts only have original jurisdiction in all matters. The rest of them have limited original jurisdiction in a few matters only.

Endnote-2: May be because of the name, I thought Cornelia Sorabji was related to Soli J. Sorabjee Sr. Advocate. I thought of confirming it from him. This is what he has to say about her and the article.

'I enjoyed reading your article "Pretty Ones". It was informative and interesting. Cornelia Sorabji was not a relation of mine. She and her sister were quite active in public life also.'


Endnote-3: The other day, I was reading 'Experiments in advocacy - A colossus in the Courts of Justice: The Life and Times of Dr. Kailash Nath Katju' published by Universal Law Publishing Co. It is collection of articles written by Dr. Kailash Nath Katju. On the page 184, under the chapter 'THE GOTRA CASES' , he metions that Ms. Cornelia Sorabji had appeared before the trial court for the defendents. Since writing this article, I have also come across a biography titled Conelia Sorbjee - India's Pioneer Woman Lawyer. It written by Ms. Suparna Guptoo and is published by Oxford University Press.,

1 comment:

  1. Your article was very interesting. If you say that Ms.Cornelia Sorabjee was the first woman to be enrolled as a woman lawyer in 1921 I have come by unconfirmed information that Ms.B.Ananda Bai had been the first woman practioner of law at the Madras High Court. Was she enrolled out of India?

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