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By Aryan Dash
INTRODUCTION
When we go back to the 19th century, the number of attorneys registered with the bar was small, but those were regarded as the top legal brains in the country. As a result, it wouldn’t be inaccurate to claim that there was a spirit of competition and hatred among the practitioners. On the other hand, even though the number of educated women in the country was at an all-time low, they attempted to exercise their rights to enter the field of law, even though the legislation was designed in such a way that it was prejudiced against them. However, in 1921, the High Court of Allahabad took notice of the situation and permitted Cornelia Sorabji to be enrolled in the bar and practice law, making her the first woman lawyer in India. As a result, the “Legal Practitioner (women) Act, 1923” was passed as a statutory measure to ensure that women might practice law without facing prejudice.
HISTORICAL BACKGROUND
On September 1, 1916, the Indian News Agency’s newspaper India published the following headlines from London, Bombay, and Poona: “latest attempt on the part of a woman to break her birth’s invidious bar and get within the defenses of a strictly guarded profession was made by a Bengali lady at the end of July,” Regina Guha, a lady of Jewish Bengali origin, made the first effort at breaking the impassable barrier of the legal profession by a woman. She graduated from the University of Calcutta with an MA in 1913 and a Bachelor of Laws in 1916. She then applied to become a pleader at the Court of the District Judge of Alipore. Guha’s application to become a pleader was regarded as one of the “latest waves” in the feminist movement at the time, relating to occupations in the public arena that had previously been held by males but were now being challenged by women.[1]
Rise of Women Lawyers Worldwide
Following their studies in law, Gwyneth Bebb, Karin Costelloe, Maud Ingram (née Croft), and Frances Nettlefold applied to the Law Society in the United Kingdom to take the preliminary exam to become solicitors. The legal society denied them the right to take the test, arguing that because they are women, they will not be able to practice law. The four women sought unsuccessfully to claim that “women” were “persons” under the meaning of the “Solicitor’s Act, 1843[2]” in the case “Bebb v Law Society[3].” Women in Canada and the United States attempted to break into the judicial system as well. Women like Myra Bradwell battled the system for years to win admission to the Illinois bar, only to be turned down by honorable judges in “Bradwell v Illinois[4]” who claimed that the “natural and legitimate shyness and delicacy which belongs to the feminine species unfits it for many of the activities of civil life” and that “women’s supreme destiny and duty is to fulfill the noble and benevolent offices of wife and mother,” thereby blurring and disrespecting the line between women’s private and public lives. However, the Illinois legislature finally authorized women to practice law, and other states soon followed suit. Clara Brett Martin was admitted to the Bar of Ontario in 1897 after disagreements with the Law Society of Upper Canada.[5]
It was clear that two major projects were undertaken in the nineteenth century, which were recounted from the memoirs of early women attorneys, namely the women’s equality project and the legal professionalism project, and Mary Jane Mossman’s work on the earliest female lawyers very well documented.
Women and Legal Profession in India
In India, however, women were torn between fighting for freedom from colonial rulers and seeking equality. Cornelia Sorabji, for example, was able to grasp and evaluate the contradiction of being stuck between the battle against colonial dominance and feminist movements, which was far too difficult to comprehend.
The introduction of Indian women into the fields of law and medicine was similar in that they believed that doing so would allow them to treat female patients and represent Indian women in purdahs, but the barriers to the latter were rather high. Women in medicine could argue that it is simply an extension of their responsibility as primary caregivers, allowing them to protect women’s modesty as well. However, in the legal domain, which is a public job, unlike medicine, which is a private practice, women were denied entry by the stronghold of the gentlemen’s club.[6]
Judges refused to accept women as persons under the existing statutes governing the legal profession in the famed “persons cases,” as shown in prior instances such as “Bebb vs Law Society[7] and Bradwell vs Illinois[8]”. The judges failed to consider that using the gender-neutral person rather than he or him would allow women to enter the sector. Regina Guha was involved in the first “persons case” in India.
Regina Guha’s father, Abhijit Guha, was a well-known criminal lawyer in Calcutta who converted to Judaism after marrying a Baghdadi Jewish lady. Regina and Hannah both went on to study law, with Regina attempting to build a career in the realm of litigation, which was riddled with dead ends for women. Hannah chose to educate females while also advocating for nationalist ideals.[9]
Regina Guha sought to enlist as a pleader at the Alipore district court after receiving her bachelor of law degree from Calcutta University in 1916, according to records provided to the Calcutta High Court. For the first time, a woman applied to be registered as a lawyer, and her case was submitted to a special bench for judicial review of whether women may be permitted to enroll under the “Legal Practitioner’s Act[10].”
Justice L. Sanderson, Justice A. Mookerjee, Justice W. Chitty, Justice Teunon, and Justice Chowdhury were on the bench, and they unanimously decided that only men are entitled to enter the legal profession as pleaders under the current legislation.
Regina Guha’s lawyer advanced arguments that were similar to those that were rejected in “Bebb v Law Society[11]“. Regina argued that just as words importing the masculine gender should be interpreted to include females under the “General Clauses Act[12]“, words referring to the male gender shall be taken to include females under the “Legal Practitioners Act[13].”
Eardley Norton, a civil rights leader and one of the original members of the Indian National Congress, defended Regina’s case. When the “Legal Practitioner’s Act” was established, the bench noted that there had never been a case of a woman being permitted to practice in the Indian courts.
From the bench, Sir Ashutosh Mukherjee stated that the “Legal Practitioners Act[14]” included no mention of women and that there is no way the country’s legislature ever contemplated including women as legal practitioners while drafting the legislation, which he believes is an incontrovertible truth. The court ruled that the “General Clauses Act[15]” was not intended to amend existing legislation or to allow women to practice law under the “Legal Practitioners Act[16].” As a result, the court followed the path of previous “person cases.”
Sudhanshubala Hazra brought the second person lawsuit five years after the Regina Guha case, setting in motion an incredible series of events. Following her birth in a Bengali Christian family, Hazra was adopted by Madhusudan Das, the architect of modern Orissa and a lawyer himself. After serving as the headmistress of Ravenshaw Girls’ School’s nursery section, Hazra’s father encouraged her to take evening legal lectures at Ravenshaw University in Cuttack. [17]
In February 1918, Hazra, who characterized herself as a shy and terrified girl in her book “A Woman At Law,” petitioned the registrar of Calcutta University to have her case considered by the university syndicate. She stated that as a Bengalee by nationality, she had every right to sit for the Calcutta University examinations.
Calcutta University ultimately agreed to allow her to sit for the examinations, but only as a private applicant. She then finished her pre-law diploma in 1919 and her intermediate diploma in 1920. However, to practice law effectively, she had to pass her final examinations, which was not easy due to the continuing Non-Cooperation Movement, for which pickets were set up everywhere, even at the university entrance, which was a test for her commitment to study law.[18]
On the first two days of her exam, Hazra had some difficulties getting into the university, but the third day was particularly tough for her because the stationed protestors were adamant about not letting anybody in easily. To get into the building, Hazra had to hop, jump, and skip. She believed that her crude behavior was for the greater welfare and emancipation of all women. Her problems, however, were far from ended.
After completing her Bachelor of Law degree from Calcutta University, Hazra applied to join the Patna district court bar as a pleader in 1921. The petition was sent to the Patna High Court for deliberation. Chief Justice Dawson Miller, Justice Jwala Prasad, and Justice B.K. Mullick presided over a full bench of the Patna High Court, which heard the case. Percival Chutter Manuk, a well-known lawyer of Armenian ancestry, and four other well-known lawyers represented Hazra.[19]
According to records at the time, the trial drew big crowds, with the Patna High Court packed to the rafters on October 29th, 1921 to witness the first woman Bachelor of LawfromOdisha. The trial was even attended by purdah women wearing veils to keep an eye on Hazra, who had applied as a pleader.
The courtroom scene seemed like something out of a thriller, with suspense building rather than mere curiosity. The whole Patna Vakil Association was outraged by the concept of a woman pleader and staged a protest. Madhusudan Das’s presence appeared to lessen the tension in the air at the time.
The three-judge bench issued separate but agreeing opinions in which they affirmed the November 28, 1921 ruling in the Regina Guha case. Despite the “General Clauses Acts” of 1868 and 1897, the courts stated that a woman could not join as a pleader under the “Legal Practitioner’s Act[20].” Furthermore, the court supported the provision that barred women from practicing law owing to their gender, despite their qualifications. [21]
However, there are two significant differences or occurrences that occurred between the Regina Guha and Sudhanshubala Hazra instances that are worth noting. The first notable event was the enactment of England’s “Sex Disqualification (Removal) Act 1919[22],” which meant that women may now practice law, and the second was the historic Allahabad High Court decision allowing Cornelia Sorabji to enroll as a vakil. This ruling was taken by the English Committee of Court, which was presided over by the Chief Justice and others.
Even though there were discussions about amending the “Legal Practitioners’ Act” in the Sudhanshubala Hazra case, the court chose to preserve the current legislation. The court acknowledged that their decision may seem contradictory, but that it will serve as a starting point for reform.
With the Patna High Court’s decision, the effort to alter the “Legal Practitioners’ Act” gained traction. Madhusudan Das and Sudhanshubala’s sister, Sailabala Das, worked hard to ensure that women were given precedence in the legal profession. Sudhanshubala’s plea to the privy council contained a memorandum that had a remarkable resemblance to Cornelia Sorabji’s deal with the bar to allow women to practice in purdahs. [23]
As a lawyer and social reformer, Hari Singh Gour, a member of the Central Legislative Assembly, was particularly interested in altering the legislation. By altering the CentralLegislative Assembly Rules, Narayan Malhar Joshi advocated removing the sex disqualification for enrolling in the electoral roll. Gour, in turn, proposed modifying the legislation to eliminate sex-based exclusion in the legal profession.
Gour argued passionately that just repealing sex-based disqualifications would be insufficient, and that the assembly should “wipe out of the Statute Book, if necessary, a taint which prohibits our female countrymen from practicing law.” Hazra also complimented her sister for her ability to persuade lawmakers, as she accompanied Hazra to Delhi to advocate for the necessity to enable women to enter the legal profession.[24]
In 1923, the Legal Practitioners (Women) Act[25] was passed, abolishing the disqualification and stating that “no woman will be barred from being admitted or enrolled as a legal practitioner or from practicing as such solely based on her sex.” In 1923, Hazra was able to enlist as a vakil of the Patna High Court amid applause and salutations.
CRITICAL ANALYSIS
Provisions of Legal Practioner Women’s Act 1923
An act to clear up any questions about women’s ability to enroll in law school and practice as lawyers. Wherefore, it is necessary to dispel certain lingering misgivings about women’s ability to enroll in law schools and practice as lawyers.
Section 1. Short title and extent
“The Legal Practitioners (Women) Act of 1923[26] is the name given to this legislation.
It covers the whole country of India, with the exception of [the regions that were part of Part B States immediately before November 1, 1956.]”
Section 2. Definition
“A legal practitioner is defined in this Act as one who practices law as specified in Section 3 of the Legal Practitioners Act[27], 1879. (18 of 1879).”
Section 3. Women not to be disqualified by reason only of sex
“No woman shall be disqualified from being admitted or enrolled as a legal practitioner or from practicing as such solely because of her sex, notwithstanding anything contained in any enactment in force in [the territories to which this Act extends], or in any letters patent of any High Court, or any rule or order made under or in pursuance of any such enactment or letters patent; and any such rule or order which is repugnant to the provisions of this Act shall be void.”
Post Act Participation Of Women
In independent India, the Indian Constitution guaranteed people the right to equality and protection from discrimination based on gender in obtaining an education or practicing any profession of their choosing. Despite this right, the legal profession has not been a popular choice for women, primarily because women must have a basic degree of education to be aware of these rights. Due to a variety of factors such as poverty, strict caste restrictions, restrictive social customs, and cultural practices prohibiting women from working outside their homes, a significant proportion of the female population remained uneducated, and independence only fueled their desire to pursue higher education and get into professional jobs of their dreams, even if it meant that this desire was essentially a part of their subconscious of not being subjected to suppression and coercion. The situation in the West was highly fascinating for marine expeditions for adventure and trade, which affected people’s living conditions at the period. Feminism and feminist groups went through a period of upheaval, with educated women leading the charge. Women were not allowed to practice law in Western courts until 1917. The British took various steps to improve India’s ailing education system, as evidenced by the fact that they established universities for women in the 1860s. However, it was not until the 1920s that women could even consider attending schools or universities for elementary or secondary education. As a result, the Indian ladies had a significantly harder time breaking through the barrier than their Western counterparts. It took a good twenty years to disseminate the message of the significance of education and literacy, as well as women’s rights, in an ethnically varied country like India, with so many castes and numerous religions each with their traditions. However, when women ultimately entered the legal profession, the judicial system welcomed them, even though the attorneys at the time didn’t. This development can be seen in the fact that Honourable Anna Chandy was selected as Chief Justice.[28]
Law Commission Report, 1958
For a long period, the suggestions of the Bar Committee were not taken into account. The Law Commission, which was finally established, had the same powers as the Bar. In its famous fourteenth report[29], published in 1958, the Law Commission suggested the formation of an All India Bar and the development of a uniform role for attorneys who could practice in all courts. The parliamentary standing committee expressed its dissatisfaction with the fact that “the Bar remains divided into several degrees of practitioners and even practitioners of the lowest grade, namely, Mukhtars, are still being recruited in certain states” ten years after the last suggestions were made.
The Law Commission voiced its dissatisfaction with the fact that the Bar Committee’s recommendations from March 1953 had yet to be adopted. The panel concurred with the Bar Committee’s recommendation that non-graduate “mukhtars” should no longer be appointed as pleaders in the courts. The commission also agreed with the committee’s recommendation that there be no restrictions on practicing law in any court because previous advocates with a particular number of years of experience in High Courts were allowed to argue before the Supreme Court.
The study even suggested that the Bar be divided into senior advocates and advocates voluntarily. Even the younger members of the Bar would have some job or responsibilities in this fashion. This system was not expected to stand in the way of the development of an All India Bar with a single list of all advocates who may practice in any court in the nation.
The Committee underlined the notion of bar autonomy, which had been highlighted by the Bar Committee in 1951. As a result, Bar Councils would be completely autonomous bodies made up solely of members of the profession. The Chairmen of the Bar Council would be chosen by the members of the Bar Council.[30]
The Advocates Act, 1961
The Advocates Act, passed in 1961[31], combined the legislation about legal practitioners and provided for the formation of the State Bar Council and All India Bar Council. The Advocates Act, with certain revisions, adopts the Law Commission’s and Bar Committee’s suggestion. In addition, it repeals the Indian Bar Council Act of 1926 and the Legal Practitioners Act of 1879[32], among other statutes. Since its inception in 1961, the statute has been amended multiple times. The Act covers the entire country of India.
For the first time, the Act established an All India Bar Council. Ex-officio members of the Bar Council of India are the Attorney General of India and the Solicitor General of India. In addition, the State Bar Council elects one member from among its members. The Chairman and Vice-Chairman are chosen by the Council. The Bar Council of India has been charged with several key responsibilities, including:
(1) To establish guidelines for advocates’ professional behavior and decorum.
(2) To protect advocates’ rights, privileges, and interests
(3) To encourage legal education.
(4) To establish legal education standards in cooperation with colleges that provide such educations in the State Bar Councils.
(5) To identify institutions that provide law degrees that are acceptable for enrolment as an advocate, as well as to visit and inspect such universities for that reason.
(6) To supervise and oversee state bar councils on a broad level.
(7) To encourage and assist the reform of the legal system.
(8) To arrange impoverished people’s legal help.
In each state, the Act establishes a State Bar Council. It is a self-contained entity. The state’s Advocate General is an ex-officio member, and there are 15 to 25 elected advocates on the board. These members will be chosen for a five-year term using a proportionate representation method in which single transferable votes are cast among advocates on the State Bar Council’s roster. The State Bar Council has the authority to choose its chairperson. The State Bar Council’s major powers and functions are as follows:
a) To accept people to its list of advocates.
(b) To prepare and keep such rolls in good condition.
(c) To investigate and rule on allegations of misconduct against advocates on its roster.
(d) To protect the rights, privileges, and interests of the attorneys on its roster.
(e) To encourage and assist the reform of the legal system.
(f) Organize impoverished people’s legal aid
As a result, each State Bar Council produces and maintains an advocate’s roll, which is subsequently validated and transmitted to the Bar Council of India.
Senior Advocates and other Advocates are the two types of advocates. If the Supreme Court or a High Court believes that an Advocate’s skill, experience, and position at the Bar merit such distinction, the Advocate may be named as a Senior Advocate with their assent. Senior Advocates are subject to any limits imposed by the Bar Council of India in the interest of the legal profession in their practice.
Originally, the Act had protected the dual system, i.e. Advocates and Attorneys, which had previously prevailed in the Bombay and Calcutta High Courts.
It was up to the two High Courts to decide whether or not to keep the system in place. With effect from January 1, 1977, these provisions were repealed. As a result, Attorneys are no longer recognized as a distinct class of attorneys under the law. However, because the system has been in place in the two towns for a long time, it is still in use there.
As a result, the profession’s entrance, practice, ethics, privileges, regulation, discipline, and improvement are now all in the hands of the profession itself. The legal profession has now accomplished its long-held goal of establishing an all-India united bar.
FUTURE PROSPECT
Reasons For Miniscule Representation of Women in Law
There is a lack of representation of women in the field of law as teachers because their roles have been reduced to those of household duties, so any woman achieving the steps of higher education, despite many of them still being restricted to do so in several parts of the country, contributes to the cause. Finding a woman as a professor in a law school in the past would have been unheard of since women were not considered persons under the existing act’s definitions, and Cornelia Sorabji had to battle for their rights to be included as persons within the act’s purview. However, it was not until 1951 that India received its first legal academician, Lolita Sarkar.
Women attorneys have historically been unable to obtain internships with male lawyers, and clients still prefer to hire male lawyers to defend their cases or argue on their behalf in court. Despite obtaining the right to be enrolled in the Calcutta High Court, Cornelia Sorabji’s job was confined to that of providing legal views following independence due to her gender. Hon’ble Justice Leila Seth (retired) has even acknowledged her dissatisfaction with the treatment of women in law offices, as well as the implicit bias that male attorneys are more equipped to defend cases.
Since the majority of legal firms were owned and controlled by a single family after independence, most law firms did not employ women attorneys. It was extremely difficult for them to employ fresh-women lawyers who were unknown and inexperienced. The fact that women would ultimately seek maternity leave and turn to child-rearing was one of the primary reasons why they were denied work at the time, and this bias has persisted despite new regulations and changes in time.
Previously, there were few female role models in the field of law, whether they were attorneys, academics, or even judges. However, this has changed with the emergence of five-year legal programs in which students are immersed in practical applications of a particular topic of law even before graduating. As a result, women no longer require affirmation or role models because they are capable of making their imprint.
People believe that law is a profession dominated by men and that women have little influence or firm foothold in the practical issues that law covers. Many individuals believe that being represented by women attorneys in instances concerning someone’s social profiles is beneath their standards. Women have gained a firm foothold in their preferred field as a result of increased educational options, a stronger sense of independence, and engagement in corporate affairs management. Many of them have gone to court to challenge the country’s current restrictive and discriminatory legislation, which has been made feasible by the increase of legal assistance expertise taught for their advancement in this sector since the 1990s.
Not just for women, but it may also be one of the reasons why few law students pursue litigation as a career since it does not provide a consistent source of income in the early years, which can last anywhere from seven to ten years. Lawyers who have inherited the profession from their father or other older family members have traditionally handled litigation. As a result, they have a financial buffer to fall back on during the early days of difficulty. As a result, many women prefer to work in the corporate legal area because of the increasing and expanding career opportunities contrasted with the difficulty of litigation.
SUGGESTION
Areas of Attention and Improvement
The dominance of male attorneys who have a type of monopoly on the cases, as well as those who have inherited the practice from their families, is the foremost cause for women’s limited involvement in the area of law. As a result, women attorneys require more involvement in terms of the number of cases assigned to them. Simultaneously, they must be provided more incentives to stay in their occupations, as well as greater compensation, so that they can have a financially solid and secure future. Women in India’s social sphere are often discouraged from pursuing their careers after marriage. A similar argument is made that after marriage, women must care for their families. However, with higher compensation and incentives, as well as more opportunity to argue more cases, there’s a chance that women’s families will be more supportive of their decision to stay in a sector that will benefit them in the long run. The most serious issue that has to be addressed is gender discrimination, which exists not just in the legal area but in every sphere of employment. Women are sexually harassed at work, and because there aren’t enough voices to back them up, as well as the fear of losing prospects, they don’t come forward with complaints. This fear, along with pressure from family members who are legitimately worried about their safety, is the primary reason why many female attorneys do not even consider entering the profession or practicing under the supervision of elders. As a result, tougher and stricter workplace harassment regulations are required to prevent abusers.[33]
CONCLUSION
The Indian legal system is not what it was after independence; there have been significant changes in the arrival of technical breakthroughs and the changing work patterns that are now followed, which will require time for people to adjust to before new improvements can be considered. With the emergence of COVID, we have seen the judicial system shift to the online sphere, and with the introduction of e-courts, which is a distinct possibility, there is every chance that women will be more involved in the field of law because they will be able to argue cases from the comfort of their chambers. Even though government occupations are the most sought after in our country, and the position of judge is something that most people desire and is unquestionably profitable, the number of women judges continues to plummet. However, not everything is a bad way, and while the problems aren’t going away anytime soon, there have been persistent initiatives to increase women’s participation in the area. It is undeniable that law is a respectable profession that carries with it respect and dignity. As previously stated, improving work settings increases the possibility of closing the wage gap between men and women. There is a good chance that women will eventually be on an equal footing with men in terms of pay and remuneration. The number of girls applying to elite law schools is increasing as more women get interested in the area of law. As a result, the disparity between male and female attorneys is anticipated to narrow over time.
[1] Jhuma Sen, ‘The Indian Women Who Fought Their Way Into The Legal Profession’ (The Wire, 2019) <https://thewire.in/law/women-lawyers-history-india> accessed 26 October 2021.
[2] Solicitor’s Act 1843.
[3] Bebb vs Law Society [1913] Chancery Division (Chancery Division).
[4] Bradwell vs Illinois [1873] United States Supreme Court, 83 (United States Supreme Court).
[5] Sen (n 1)
[6] Sen (n 1)
[7] Bebb (n 3).
[8] Bradwell (n 4).
[9] Sen (n 1).
[10] Legal Practitioners Act 1879.
[11] Bebb (n 4).
[12] General Clauses Act, 1897.
[13] LPA 1879.
[14] LPA 1879.
[15] GPA 1897.
[16] LPA 1879.
[17] Sen (n 1).
[18] Ibid
[19] Sen (n 1)
[20] LPA 1879.
[21] Sen (n 1)
[22] Sex Disqualification (Removal) Act, 1919.
[23] Sen (n 1)
[24] Ibid
[25] Legal Practitioners (Women) Act 1923.
[26] LPWA 1923.
[27] LPA 1879.
[28] legal India, ‘Representation Of Women In The Legal Profession In India’ (Legalservicesindia.com) <http://www.legalservicesindia.com/article/2285/Representation-of-Women-in-the-Legal-Profession-In-India.html> accessed 26 October 2021.
[29] ‘REFORM OF JUDICIAL ADMINISTRATION’ (MINISTRY OF LAW 1953) <https://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf> accessed 26 October 2021.
[30] Rudransh Sharma, Debayan Banerjee and Kripalini Mandal, ‘History Of Legal Profession In India – Academike’ (Academike, 2014) <https://www.lawctopus.com/academike/history-legal-profession-india/> accessed 26 October 2021.
[32] LPA 1879.
[33] Saurabh Kumar Mishra, ‘Women In Indian Courts Of Law: A Study Of Women Legal Professionals In The District Court Of Lucknow, Uttar Pradesh, India’ [2015] e-cadernos CES.
