Cornelia Sorabji's photograph is from this post of Lincoln's Inn Picture
Allahabad High Court celebrated post centenary silver jubilee celebration in 1991. This article traces history of the Allahabad High Court and ‘Person’ clause cases where women claimed equal rights with men and was written as a tribute to the Allahabad High Court on this occasion.
This post is part of the series 'IT LIES IN THE HEART'. For other posts
in the series, please see at the end of the article, before the End Notes.
It has been a long time since 1866, when the Allahabad High Court was established. In these years, Allahabad High Court has established traditions, peculiarities, and distinctions. But one distinction is special—but before that some history about the Allahabad High Court and its bench at Lucknow.
Allahabad High Court
In the last century, a dual judicial system was prevalent: the royal courts, namely 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 to be based at Allahabad but was started at Agra. It was later shifted to Allahabad.
The two parallel judicial systems exercised independent but often-concurrent jurisdiction; jealously viewing the exercise of power by each other. And what else could they produce—infighting and confusion was the result. There was a debate to consolidate them.
After the first war of independence in 1857, the East India Company was dissolved 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 the 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: they inherited their jurisdiction. They still have original jurisdiction in all matters, subject to pecuniary limits.
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. Only these four High Courts have original jurisdiction in all matters. The rest of the High Courts have original jurisdiction in some matters only.
The Act of 1861 also provided for the establishments of a High Courts by the Letters Patent. The first one was for the North Western Provinces. It was done by the Letters Patent dated 17 March ,1866 and was published in the official gazette of 13 June 1866. It was the first and the only High Court to be set up in the nineteenth century by upgrading a Sadar Adalat; it inherited its jurisdiction as well. 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 except the four (namely Calcutta, Bombay, Madras and Delhi) that have original jurisdiction in all matters.
It was started at Agra. There was no building at Allahabad. A Bench started sitting at Allahabad in 1868. Then the full court known as the Allahabad High Court, started sitting at Allahabad from 1869.
The building of the High Court 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.
The High Court shifted to its new building in 1916. The original High court building now houses the Police Headquarters (See End Note-1). The old generation and rickshaw-walas often refer to it as the old High Court.
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. 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
At about the same time, when the Allahabad High Court was established, the women all over the world were claiming equal rights with men. The majority of the statutes at that time used the words like,
'Any person who has ... is entitled to vote or to take admission or to practise.'And soon a question was raised whether the word 'person' included 'women' as well?
In the first case Chorlton Vs Lings (1869), the word ‘man’ was used. Despite an Act in England, which was similar to our General Clauses Act, where masculine includes feminine, the court held that women were not included in the term men and were not entitled to vote. Then started the 'person' clause cases.
In the 'person' clause cases, the question was whether women are included in the word person or not. The courts consistently held that women were not included in the term person. The earliest of these cases 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. From his experience as Viceroy, he 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. Unbelievable, but such arguments prevailed till 1918, when women were given the right to vote. The Sex Disqualification Removal Act in 1919 removed the other such disability in England.
The US Supreme Court in Bradwell Vs Illinois 83 US 130 (1873) held that a State could preclude a married woman from practising law. Though, two years later in Minor Vs Happersett 88 US 162 (1875), it conceded that women were citizens as well as persons but held them to be a special category of non-voting citizens. 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.
In this regard, Belva Lockwood (24.10.1830 – 19.5.1917) requires special mention.
Belva Lockwood was admitted to the National University Law School (now the George Washington University Law School). She completed her course in 1873 but the school did not give her diploma as the male students objected to it. She appealed to President Ulysses S Grant, who was ex officio head of the school and on his intervention she received her diploma.
Lockwood was admitted to the District of Columbia Bar, however, she was denied admission to the Maryland Bar and to the Federal Courts because she was a married woman. In 1873, a judge in Maryland ruled against her practise. He Observed,
'Women are not needed in the courts. Their place is in the home to wait upon their husbands, to bring up the children, to cook the meals, make beds, polish pans and dust furniture.'In 1875, while refusing to admit another women to practise, the Supreme Court of Wisconsin held,
'Discussion are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety.'Lockwood was active in women rights. Her campaign to permit women to practice in Federal Court was successful. In 1879, the Congress enacted a law allowing women to be enrolled as lawyers. On 3rd of March, 1879, she was sworn in as the first woman lawyer to practice before the US Supreme Court.
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 town High Court held that the word 'person' included women and they 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 court in the Incorporated Law Society Vs Wookey (1912) overruled the decision. It took the established line that women were not included in the word 'person'.
The curtain to person cases was drawn in the western world by Privy Council in a Canadian case Edwards Vs Attorney General (1929 All ER Rep 571 = 1929 UKPC 86). The Supreme Court of Canada 'In Reference re meaning of the word "Persons" in s. 24 of British North America Act' reported in 1928 SCR 276 had unanimously decided that women were not included in the word 'persons'. In appeal, the Privy Council, in a one-line, 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 there are not many. Initially, the High Courts enrolled the legal practitioners, then the enrolment was handed over to the Bar Council.
The Legal Practitioners Act used the word 'person.' While dealing with the enrolment of the women, the Calcutta and Patna High Courts held that they were not included in the word person and rejected their applications. These cases were referred to the judicial side and 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 enroll Cornelia Sorabji (15.11.1866 – 06.07.1954) (See End Note-2), the first woman to be enrolled under person clause.
Cornelia's father was a Parsi by birth but adopted Christian faith. In 1887, she stood first in Bachelor of Arts examination from Bombay University and was entitled to get scholarship to study at England, but it was denied to her as she was a woman. However, when questions were raised in the British Parliament, then funds were privately raised by the English ladies and she went to England in 1889.
Cornelia took Bachelor of Civil Laws degree from Oxford University in 1892 but being a woman, it was not awarded to her. She came back to India in 1893 but the Chief Justice, Bombay High Court, opposed women working as Solicitors. In 1896, Cornelia passed Bachelor of Laws examination at Bombay, but was refused to plead in the British courts.
Dick Sorabji was Cornelia's younger brother. He had become barrister and decided to practice at Allahabad. Cornelia came to Allahabad with him in 1897. She, in 'India Calling' Part- II (1894 – 1902) Chapter 4, says,
'Allahabad differed from Bombay, Bengal and Madras, in that here there were no Solicitors. Barristers took instructions directly. As I have already said, I had in practice found direct contact with clients useful. This was another point in favour of Allahabad.Cornelia filed an application in 1897 to be enrolled as a Vakil as she had degree of Bachelor of Laws from the Bombay University. But she was informed that she might be admitted if she could pass the High Court Pleader's examination. Cornelia passed Pleader's examination but the Allahabad High Court refused to enroll her on 4th of April 1899 due to the casting vote of the then Chief Justice.
Practitioners in the United Provinces included Barristers, Vakils (i.e. Graduates of Law, of the University of any Presidency), High Court Pleaders (qualified by a Special Examination, held by the High Court), and in the Districts, Mukhatars, etc. (less well qualified). Barristers had pre-audience: and the High Court had just instituted the distinction of Advocate, i.e. eminent Vakils of long standing, who were, in consequence of being termed “Advocate,” admitted by grace of the Court to the status and courtesies of Barristers in the Allahabad High Court. Tej Bahadur Sapru and Motilal Nehru were the Vakils so honoured.'
In Allahabad, Cornelia had a love affair with Justice Harrison Faulkner Blair, a sitting judge of the Allahabad High Court. At that time Justice Blair was 60 and she was 32; perhaps this affair costed him the expected succession to the office of Chief Justice. It was embarrassing for her brother Dick as well, who saw to it that Cornelia goes back to Poona (Pune) and from there, she went to England in 1901.
After refusal to enroll her as Vakil, Cornelia was tried to get a post of Legal Advisor and got that in the year 1904. It was for Pardanashin women under the Courts of Wards in Bengal, Bihar, Orissa and later Assam. It was based at Calcutta, away from Allahabad.
Cornelia came back to India and joined the post. It is about the same time that Justice Blair also retired and left for England in 1905. Soon thereafter, he died in 1907.
In the meanwhile, Dick had continued his practice at Allahabad. He had become principal of the law college at Allahabad as well. Cornelia was ultimately enrolled as a Vakil by the Allahabad High Court on August 9, 1921. This decision was on the administrative side and as such is not reported. However, there is a reference to it in the Patna case.
In 1922, Cornelia and Dick left for England to settle there. Dick permanently settled there but Cornelia, after passing Bar at Law examination from Lincoln's Inn in 1923, came back to India and was enrolled as Barrister in Calcutta. She also practised there. She went back to England in 1938 and was there till her death on 6th July, 1954.
Cornelia was a social reformer and a champion of women rights. She worked with the 'pardanashin' women. But, she was loyal to the British Raj and condemned Gandhi's campaign of civil disobedience.
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 the law explicitly permitting women to be enrolled and not under person clause. The question did not arise subsequently in our country because of the enactment of the Legal Practitioners Women Act, 1923.
Cornelia argued cases at Calcutta. But, despite being enrolled at Allahabad earlier, it is not clear if she argued any case at Allahabad High Court; at least none is reported (see End Note-3). This trend continues in the Allahabad High Court. Very few women are practising here; most of them leave the court. 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.
Comparative Law India and Abroad
End Note-1: There is some confusion, as to which building is the old High Court. I have clarified it in my post 'Allahabad High Court Is Born' that at present, this building is used as the Police Headquarters not as the Board of Revenue.
End Note-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.'
End Note-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 has collection of articles written by Dr. Kailash Nath Katju. On the page 184, under the chapter 'THE GOTRA CASES', he mentions that Ms. Cornelia Sorabji had appeared before the trial court for the defendants.
#CorneliaSorabji #WomenRights #GenderJustice #PersonClauseCases
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