1. K. N. Katju, The Days I Remember ii (1961).

2. P. B. Vachha, Famous Judges, Lawyers, and Cases of Bombay 8 (1962), and C. Fawcett, The First Century of British Justice in India 57 (1934), disagree about whether the court functioned before 1677.

3. Vachha, supra note 2, at 8.

4. Fawcett, supra note 2, at 53.

5. Vachha, supra note 2, at 7.

6. Fawcett, supra note 2, at 62. The few Portuguese lawyers who continued under the British were gone before the profession had developed very much, and there is no visible carry-over from Portuguese tradition in later practice.

7. Id. at 44.

8. Vachha, supra note 2, at 10.

9. B. M. Malabari, Bombay in the Making 154 (1910).

10. Fawcett, supra note 2, at 68.

11. Vachha, supra note 2, at 8.

12. Fawcett, supra note 2, at 61.

13. Vachha, supra note 2, at 17.

14. Fawcett, supra note 2, at 61.

15. Id. at 171.

16. Id. at 191.

17. J. W. Kaye, The Administration of the East India Company 322n (1853).

18. Vachha, supra note 2, at 8.

19. B. B. Misra, The Judicial Administration of the East India Company in Bengal, 1765-1782 (1961).

20. Fawcett, supra note 2, at 146.

21. Id. at 124-26 and Malabari, supra note 9, at 163.

22. Fawcett, supra note 2, at 145.

23. Id. at 211.

24. H. D. Love, Vestiges of Old Madras, 1640-1800, at 139 (1913).

25. Misra, supra note 19, at 137 n.1.

26. J. T. Wheeler, Madras in Olden Times—Early Records of the British in India 127 (1878). See Vachha, supra note 2, at 16.

27. Fawcett, supra note 2, at 226.

28. Id. at 221-22.

29. Id. at 221.

30. Misra, supra note 19, at 139.

31. Fawcett, supra note 2, at 223.

32. Love, supra note 25, at 302.

33. Id. at 116.

34. Id. at 303.

35. M. P. Jain, Outlines of Indian Legal History (1952).

36. Vachha, supra note 2, at 25.

37. Love, supra note 25, at 140.

38. Id. at 301.

39. The Law Relating to India and the East India Company, 2d ed., at 30 (1911).

40. E. C. Ormand, Rules of the Calcutta High Court 44 (1940).

41. Op. cit., supra note 39, at 32. The allowance was not agreed upon by the London office and was ordered to be refunded after three years, but was not.

42. 4 A. Spencer, Memoirs of William Hickey 359 (1925).

43. Id. at 48.

44. Id. at 210.

45. Id. at 211.

46. Id.

47. Misra, supra note 19, at 202.

48. H. E. Busteed, Echoes From Old Calcutta 72 (1897).

49. [I.e., the celebrated trial for forgery of Maharaja Nandakumar (Nuncomar) before the Supreme Court at Calcutta in 1775, leading to his execution and to a controversy, touching all concerned, that has lasted for almost two centuries. Among the recent literature is L. S. Sutherland, New Evidence on the Nandakumar Trail, 72 Ante 348-65 (1957); J. D. M. Derrett, Nandakumar's Forgery, 75 Eng. Historical J. 223-68 (1960); B. N. Pandey, The Introduction of English Law Into India (1967).]

50. Busteed, supra note 48, at 76.

51. 3 Spencer, supra note 42, at 149.

52. 2 id. at 127; vol. 3, at 146-49, 311; vol. 4, at 2, 8, 46, 55, 57, 181, 203, 259, 272, 275, 382.

53. Misra, The Indian Middle Classes: Their Growth in Modern Times (1961), at 327.

54. Even before the Supreme Court there were two barristers and eleven other legal practitioners practicing in the Recorder's Court at Madras. (J. C. Gopalratnam, A Century Completed—A History of the Madras High Court, 1862-1926, at 96 [1962].) One of the barristers, Benjamin Sullivan, became a puisne judge of the Supreme Court; the other, Mr. Ansthruther, became the Advocat General. Id. at 88, 97.

55. Vachha, supra note 2, at 29.

56. Regulation VII of 1793 had attempted to limit fees:

57. 2 Spencer, supra note 42, at 134.

58. Busteed, supra note 48, at 72.

59. Spencer, supra note 42, at 164.

60. Vachha, supra note 2, at 10.

61. F. G. D. Drewitt, Bombay in the Days of George IV 63 (1935).

62. 6 Calcutta Review 530 (1846).

63. Id. at 526.

64. Id. at 528.

65. Id. at 529.

66. Id. at 530.

67. Drewitt, supra note 61, at 65.

68. Spencer, supra note 42, at 207.

69. C. Moore, The Sheriffs of Fort William, 1775-1926, at 9 (1926).

70. Id. at 248.

71. 3 Spencer, supra note 42, at 171.

72. 4 id. at 36.

73. 3 id. at 202.

74. 4 id. at 341.

75. 4 id. at 397.

76. 2 id. at 134-36.

77. 3 id. at 146.

78. 4 id. at 257.

79. 4 id. at 18.

80. 4 id. at 174-76.

81. 4 id. at 60-63.

82. Robert Morris, an advocate with a bad reputation, was refused permission to practice before the Calcutta Supreme Court. Defying the refusal he appeared the next day in court wearing his gown and wig and claiming his right to practice in any of the King's Courts. He was again refused permission because of the “vile and disgraceful life you have led.”

83. The court in Calcutta had a rule that names of attorneys absent for more than one year were to be struck off the rolls. They were readmitted if proper explanation was given.

84. Vachha, supra note 2, at 30.

85. Misra, supra note 53, at 327.

86. [On the system of adalats, see Jain, supra note 35, at chs. VI, IX-XIV. On the law applied there, see Galanter, The Displacement of Traditional Law in India, J. Social Issues (1968).]

87. The rise of the profession is reflected by the evolution of the word “vakil.” Vakil is an Urdu word meaning agent. It was first used in Muslim law books in connection with marriage settlement. In the early British period vakil meant a personal representative from a governor or general to the court of a Nabob or Raja. (2 Fawcett, supra note 2, at 363, 375.) It was also used referring to agents of the district collector, a zemindar, or high official—either Indian or English (Misra, supra note 19, at 163). In the context of the zilla courts under the Nabobs, vakil also meant an agent representing a party in court of law. After regulation establishing pleading as a profession for Indians, vakil means a pleader with legal training, and a license authorizing him to practice.

When the High Courts were formed in 1862 vakil meant one who had studied law in a university and had passed the High Court vakils' examination. Later it came to mean the graduate of a university with an LL.B. degree who as a full-fledged advocate can handle work without the help of counsel on either Appellate or the Original side. (P. S. Sivaswami Aiyar, A Great Liberal 207 [Nilakanta K. A. Sastri ed. 1965].)

88. 5 T. B. Sapru, Encyclopedia of the General Acts and Codes of India 176 (1938).

89. Misra, supra note 53, at 164.

90. 1 R. Clarke, The Regulations of the Government of Fort William in Bengal 1793-1806 (1854). Regulation VII, pt. 1, §1, of 1793.

91. Id.

92. Misra, supra note 53, at 166.

93. Clarke, supra note 90.

94. Id.

95. Madras Regulation 10 of 1802, Bombay Regulation 14 of 1802, and Northwest Provinces Regulation 10 of 1803 made the same provision for appointment of vakils as did Regulation VII of 1793. Regulations very similar to Bengal Regulation XVIII of 1814 were passed by Madras (Regulation 14 of 1816) and Bombay (Regulation 2 of 1817).

96. Clarke, supra note 90, Madras Regulation XV, 1816.

97. R. Temple, The Story of My Life 38 (1896).

97a. R. Rammohun Roy, Exposition of the Practical Operations of the Judicial and Revenue Systems of India, in The English Works of Rammohun Roy (Dr. Kalidas Nay and Dabajyoti Burman eds.) (1947).

98. K. A. Ballhatchet, Social Policy and Social Change in Western India 144 (1957).

99. Kaye, supra note 17, at 330.

100. P. Spear, Twilight of the Moghuls 95 (1951).

101. B. M. Malabari, Gujarat and the Gujaratis 178 (1882).

102. Id. at 181.

103. Id. at 185.

104. Misra, supra note 53, at 171.

105. Id.

106. 4 Spencer, supra note 42, at 348.

107. Misra, supra note 53, at 174.

108. Id. at 171.

109. 5 Sapru, supra note 88, at 176.

110. Id.

111. O. Temple, Practice of the Calcutta Court of Small Causes 65 (1860).

112. [On the establishment of the High Courts, see M. P. Jain, supra note 35, at ch. XVI.]

113. Vachha, supra note 2, at 43.

114. Id. at 44.

115. Ormand, supra note 40, §9, at 123.

116. 2 B. S. Baliga, Studies in Madras Administration 346 (1960).

117. Id.

118. Vachha, supra note 2, at 53.

119. Gopalratnam, supra note 54, at 15.

120. E. J. Trevelyan, The Constitution and Jurisdiction of Courts of Civil Justice in British India 71, 77, 78 (1923).

121. Misra, supra note 19, at 172.

122. Vachha, supra note 2, at 50.

123. Some High Court judges, e.g., Justice Jenkins of Bombay, took an interest in activating the mofussil judiciary and periodically deputed a judge to inspect the mofussil courts (Vachha, supra note 2, at 86).

124. Provision was also made for attorneys to practice as advocates. An attorney who had served for ten years in the High Court at Calcutta was entitled to appear and plead. With less than ten years service, an attorney could take an examination which would entitle him to plead, if he had read for one year in the chambers of an advocate. Ormand, supra note 40, 217-23.

125. 4 Imperial Gazetteer of India 155-56 (1909).

126. Act XVIII of 1879.

127. For example, Pandit Motilal Nehru never finished his college examinations, but he passed the High Court vakils' examination in 1883 and became one of the most brilliant lawyers of his time. P. Suri & A. Pershak, Motilal Nehru 4-6 (1961). Dr. Katju passed the High Court vakil's examination in 1906 after two years of college. He passed the LL.B. examination a year later. Katju, supra note 1, at 6-7.

128. Ormand, supra note 40, at 240.

129. Suri & Pershak, supra note 127.

130. Setalvad gives an amusing account of one attempt of an advocate to practice without a solicitor. The hot tempered barrister, Anstey, once insulted a solicitor so rudely that all of the solicitors of Bombay decided not to give him any briefs. He appeared in court having been instructed directly by a client. After two days of argument the judges refused to recognize his right to appear. He, therefore, persuaded a solicitor friend at the Madras High Court to move to Bombay. Because of Anstey's reputation his new solicitor soon had more of the desirable legal business in Bombay than the other solicitors. (C. H. Setalvad, Recollections and Reflections; An Autobiography 9 [1946].)

131. Katju, supra note 1, at 14.

132. Attorneys who had practiced before the Supreme Court of Judicature in England could be directly admitted into the High Courts. Attorneys from Ireland could be admitted after passing an examination. Attorneys from other High Courts were admitted if they had served a period of five years as attorney's clerk, and this was a requirement for fresh candidates as well. A graduate of an Indian university, with five years service as as an attorney's clerk, was admitted after paying a fee and passing the required examination. Ormand, supra note 40, at 124.

133. Gopalratnam, supra note 54, at 123-24.

134. In Madras a similar provision to this was rejected by the vakils who as a body were struggling for rights and position equal to that of advocates. Sivaswami Aiyar, supra note 87, at 273.

135. Setalvad, supra note 130, at 18.

136. Act XXXVIII of 1926.

137. Women were allowed to practice as lawyers even prior to 1923. As their right to practice had sometimes been questioned, it was clearly set forth in the Legal Practitioners (Women) Act of 1923. (Act XXIII of 1923.)

138. Act XXXVIII of 1926.

139. Sapru, supra note 88, at 175-76.

140. A. Gledhill, The Republic of India: The Development of Its Laws and Constitution 2nd ed. 364 (1964).

141. Mahajan, Looking Back 213-14 (1963).

142. [Ministry of Law, India, Report of the All-India Bar Committee (1953).]

143. Act XXV of 1961.

144. A. C. Ganguly, Civil Court Practice and Procedures 250 (1963).

145. Gledhill, supra note 140, at 365.

146. Id.

147. N. S. Bose, The Indian Awakening and Bengal 57 (1960).

148. Between 1829 and 1851, 1,787 students passed through this institution in Calcutta. S. C. Sanial (1915), 96. History of the Calcutta Madrassa, VIII, Bengal Past and Present 83-111, 125-50 (1915).

149. B. C. Pal, Memories of My Life and Times 4 (1932).

150. Misra, supra note 53, at 169.

151. Bose, supra note 147, at 61.

152. C. E. Buckland, Dictionary of Indian Biography (1906).

153. Misra, supra note 53, at 169.

154. Id. at 170.

155. 5 Calcutta Review 99 (1846).

156. 7 Calcutta Review 109 (1847).

157. Buckland, supra note 152.

158. Misra, supra note 53, at 173.

159. Bose, supra note 147, at 75.

160. Mahajan, supra note 141, at 5.

161. S. Jaysree, The Iron Man of India 36 (1951).

162. G. L. Patel, Vithalbhai, Patel, Life and Times 17-18 (1950).

163. Sivaswami Aiyar, supra note 87, at 226.

164. Setalvad, supra note 130, at 161.

165. Mahajan, supra note 141, at 27.

166. Katju, supra note 1, at 5.

167. Id. at 4.

168. Id. at 3-4.

169. Setalvad, supra note 130, at 161.

170. Id. at 162.

171. Misra, supra note 53, at 325.

172. Katju, supra note 1, at 19.

173. Id. at 5; and G. Wijeyekoon, Recollections 17 (1951).

174. Setalvad, supra note 130, at 146.

175. When Dr. Katju took the High Court Pleader's examination in 1906 only fifteen out of several hundred passed the examination (Katju, supra note 1, at 6).

176. Requirement for admission as a student to an inn of court was matriculation. Many of the early Indian students studied for the matriculation exam in England for two or three years before studying law and therefore needed four to five years stay in England before being called to the bar.

177. Six of the first ten students admitted by Lincoln's Inn were Parsis (2 Lincoln‘s Inn, Admission of Students to Lincoln‘s Inn, 1861 to 1893) at pt. II, 298 [1893]).

178. H. B. Tyabji, Badruddin Tyabji; A Biography 22 (1952).

179. Misra, supra note 53, at 327.

180. Buckland, supra note 152.

181. Tyabji, supra note 178.

182. Buckland, supra note 152; and Vachha, supra note 2, at 40.

183. High caste Hindu barristers found that when they returned from England they had to go through a prayaschit (purification) ceremony. Mahajan refers to three young men from the Punjab who after being admitted to the bar in England, had to undergo this humiliating ceremony in order to satisfy their orthodox relatives. Mahajan, supra note 141, at 36. Motilal Nehru, who visited England in 1899, refused to submit to the prayaschit and was excommunicated. His spirited defiance helped to end this strict orthodoxy. B. R. Nanda, The Nehrus 39-40 (1963).

184. The lists include the names of several English lawyers who had been vakils at the Madras High Court and wished to return to India as barristers. Lincoln's Inn, supra note 177, at 349.

185. Tyabji, supra note 178, at 23.

186. Id. at 28-29.

187. Id. at 29.

188. Katju has pointed out that it is not uncommon for Indian clients to select a lawyer who is of the same caste or community as the judge, for much the same reason. Katju, supra note 1, at 33.

189. Vachha, supra note 2, at 14.

190. Setalvad, supra note 130, at 18-19.

191. Id. at 18.

192. Id. at 19.

193. One such judge was Justice Sargent of Bombay. “He was free from political and racial bias, and encouraged young rising Indian advocates like Tyabji and Telang, the latter whom he raised to the Bench regardless of his absurdly youthful age.” Vachha, supra note 2, at 72.

194. Id. at 81.

195. P. C. Ray, Life and Times of C. R. Das 2 (1927).

196. Id. at 58-64.

197. Nanda, supra note 183, at 37.

198. Misra, supra note 53, at 307.

199. Id. at 325.

200. Hunter maintained that this mass of litigation from the villages represented the opening of an avenue of redress for the accumulated injustices of many years. “That the litigation is beneficial is proven by the fact that out of 108,559 original suits, 77,979 were decided in favor of the plaintive.” He pointed out that before 1790 only one out of 10,000 inhabitants dared to use the courts, but by 1864 one out of every 260 inhabitants was using the courts. Hunter, Annals of Rural Bengal (1868) 342-43.

201. The Legal Practitioners Act of 1879 (Act XVIII of 1879) specified that the High Court should “fix and regulate fees and that table of fees should be published in the local official gazette.” These fee tables were often revised.

202. Pal, supra note 149, at 22.

203. Mahajan, supra note 141, at 34.

204. Misra, supra note 53, at 316.

205. Nanda, supra note 183, at 27.

206. Id. at 176.

207. Ray, supra note 195, at 66.

208. Mahajan, supra note 141, at 40.

209. Id. at 40-41.

210. Katju, supra note 1, at 44.

211. Gledhill, supra note 140, at 13.

212. G. V. Mavalankar, My Life at the Bar 15 (1955).

213. Setalvad, supra note 130, at 156.

214. Id. at 157.

215. Katju, supra note 1, at 43, 44, 49, 247.

216. Mahajan, supra note 141, at 209-15.

217. Ray, supra note 195, at 73.

218. Katju, supra note 1, at 13.

219. Id.

220. Misra, supra note 53, at 333.

221. I Lahore LJ. xvii.

222. J. W. Spain, Pathans of the Borderland 114 (1963).

223. I, Lahore L.J. xv.

224. Mavalankar, supra note 212, at 15.

225. See Galanter, Introduction to this issue, Table 1.

226. Nanda, supra note 183, at 26.

227. Ray, supra note 195, at 24.

228. Id. at 64.

229. Setalvad complained in 1946 that there were between three hundred and four hundred advocates practicing just on the Original Side of the High Court of Bombay. Setalvad, supra note 130, at 147.

230. The Madras High Court Bar was reported to have been crowded from 1897 when there were more than one hundred lawyers in the Vakils Association. By 1938 there were 3,790 advocates registered in the Madras presidency of whom 1,600 were practicing in Madras City. Sivaswami Aiyar, supra note 87, at 276.

231. Id. at 278.

232. The associations at Lucknow are a good example. The Oudh Bar Association founded in 1901 was for advocates only. Membership fee was Rs200, there was a good library, 131 members were registered. The Central Bar Association founded in 1908 was open to any legal practitioner not below the rank of pleader. Membership fee was Rs50, there was a library. 175 members were registered. The District Bar Association founded in 1935 is open to students training to be vakils. Admission fee is Rs15, there were 88 members. The Lucknow Lawyers Association founded in 1928 is open to any legal practitioner. There is a library, membership fee is Rs5 and there were 74 members. 37 Uttar Pradesh District Gazetteer 284-85 (1959).

233. E.g., the Vakils Association of the Madras High Court raised enough subscriptions to build a library of more than 30,000 volumes. The library and reading room are housed in the High Court building at Madras. Sivaswami Aiyar, supra note 87, at 272. The tradition of bar libraries at the courts goes back to that established at the Supreme Court in Calcutta in 1825. George W. Johnson, a Calcutta barrister, gives the following account of its founding:

I may observe here, for the guidance of immigrating barristers that there is a law library connected with the Supreme Court. This useful collection of books was founded chiefly through the exertion of one of the advocates, Mr. Languerville Clarke, in June 1825—the bar then was composed of ten barristers and they, with the officers of the court, subscribed Rs. 100 each toward the purchase of a professional library which was offered to them. The valuation amounted to Rs. 5,928 and the balance left due was gradually to be liquidated by the annual subscription of each member, fixed at two gold mohurs (64 shillings) (Rs. 25) per term. Justice Buller obtained for the proposed library a room opening into the Supreme Court and the books by purchase and donations have gradually accumulated into a nearly complete series of reports ancient and modern and in a respectable though more deficient collection of text books. There is a difftree (native librarian) continually in attendance to find the required volumes and take receipts for such as are borrowed from the library. … 1 G. W. Johnson, The Stranger in India or Three Years in Calcutta 91-92 (1843).

234. Katju, supra note 1, at 27.

235. Setalvad, supra note 130, at 158.

236. Nanda, supra note 183, at 18.

237. Id. at 21.

238. Setalvad, supra note 130, at 3.

239. Ray, supra note 195, at 16.

240. Sivaswami Aiyar, supra note 87, at 277.

241. Ray, supra note 195, at 24.

242. Mahajan, supra note 141, at 31.

243. Jaysree, supra note 161, at 25.

244. Katju, supra note 1, at 13.

245. Only a few men in government service had the courage to openly support nationalism. One of these was Justice Ranade. When he was a judge in Poona he used his position and influence to awaken political consciousness in that area. Chief Justice Westropp of Bombay warned him that his writings were standing in the way of his promotion. He answered, “I am grateful to you, Sir. So far as my wants are concerned, they are few and I can live on very little. Concerning my country's welfare, what seems to me true, I must speak out.” Setalvad, supra note 130, at 141.

246. [In the early 1880's the Ilbert Bill's proposal to empower Indian judges in the mofussil to try criminal cases involving European defendants provoked the fierce opposition of the resident British community. A watered down version, known as the Ilbert Act, was passed in 1884, providing for mixed Indian and European juries in such cases.]

247. Ray, supra note 195, at 120.

248. A. H. L. Fraser, Among Indian Rajahs and Ryots 65 (1912).

249. Id. at 64.

250. 2 B. S. Baliga, Studies in Madras Administration 5 (1960).

251. Buckland, supra note 152.

252. A reading of all the lawyer biographies in Buckland's Dictionary of Indian Biography reveals that most of them were quite active politically.

253. Mavalankar, supra note 212, at 8.

254. Mavalankar relates how Pherozeshah Mehta, D. E. Wachla, Gokhale and Balchandra Krishna all advised him to study law with a view to enter politics. Id.

255. V. J. Mahajan, The Nationalist Movement in India and Its Leaders (1962), at 76.

256. Id. at 9.

257. Nanda, supra note 183, at 59.

258. M. K. Gandhi, The Story of My Experiments With Truth 409 (1950).

259. R. Prasad, Autobiography 91-92 (1957).

260. Id. at 100.

261. [The Rowlatt Acts, passed in 1919, gave Government broad emergency powers (e.g., abolition of juries in political cases, internment without trial). The Acts were deeply resented and became a rallying point for nationalists.]

262. Setalvad, supra note 130, at 153-54.

263. [I.e., the firing by British troops on an unarmed crowd at Amritsar on April 13, 1919, in which 379 Indians died and 1,200 were wounded. For a full account, see Rupert Furneaux, Massacre at Amritsar (1963).]

264. Nanda, supra note 183, at 59.

265. Jayakar gives a graphic description of this committee at work:

Gandhi invariably assumed the role of the stern judge in sifting the chaff from the substance. He took infinite pains to see that what was to be put before the public was the quintessence of truth. The occasions were not infrequent when we differed violently as to what was the truth … Das and I advocated our view with great insistence; Das often thumped the table with a vigorous gesture which was his favorite habit when putting forward his point of view. Motilal did the same but with great restraint. Gandhi often stood alone against all this fusillade. 1 M. R. Jayakar, The Story of My Life 322 (1958).

266. Nanda, supra note 183, at 170.

267. Id. at 184; and Ray, supra note 195, at 66.

268. Nanda, supra note 183, at 181.

269. Ray, supra note 195, at 200-3.

270. Katju, supra note 1, at 13.

271. 1 All India Rptr. (1965).

272. M. Galanter, Hindu Law and the Development of the Modern Indian Legal System, mimeograph, Chicago, University of Chicago (1965).