By K Parameshwar & Medha Damojipurapu
"It would be ambitious beyond my daring, I thought, looking about the shelves for books that were not there, to suggest to the students of those famous colleges that they should rewrite history, though I own that it often seems a little queer as it is, unreal, lop-sided; but why should they not add a supplement to history, calling it, of course, by some inconspicuous name so that women might figure there without impropriety?"
- Virginia Woolf, A Room of One’s Own, in Selected Works of Virginia Woolf 591 (Wordsworth Editions, 2005)
Historical narratives are seldom objective. They are often written from a position of power, from above. The recollection of Indian legal history and the dramatis personae involved, mirrors the male-dominated, colonially rooted legal system.
The chartered courts, and their history, dis-proportionally dominate the recollection of historical subjects that have influenced our legal system. As a result of such selective and biased recollection, many lawyers who have been pioneers in their own right are rendered invisible.
Justice Anna Chandy, is one such personality - the first female judge in India, the first woman to become a judge of a High Court, and perhaps the first woman to become a judge in the Anglo-Saxon world. She was sworn in as a judge of the High Court of Kerala on February 9, 1959 and held office upto April 5, 1967, for over eight years.
Chandy belonged to a Syrian Christian family in Travancore. Having lost her father at an early age, she was raised in a family of women and was probably influenced by the matrilineal traditions followed by the Nair community in the Travancore state.
Under the reign of Maharani Sethu Lakshmi Bayi, the regent of Travancore state, women’s education was given great impetus. Benefitting from this changed state of affairs which allowed women to enroll in the Government Law College, Anna Chandy enrolled for a post-graduate degree in law, graduating with distinction in 1926.
Anna Chandy was a well-known “first-generation feminist” of Kerala and championed the cause of women’s rights in the social, political and economic spheres, especially through the publication titled Shrimati, which she founded and edited. On entering the male-dominated field of politics in 1931, she provoked the ire of the Nair newspaper titled Malayalarajyam despite being supported by the Christian Nazrani Deepika which recognized her as a “Syrian Christian candidate”.
Often, her views on women’s rights were far ahead of her time and were opposed by vast sections of society, including women themselves. However, she held her own in the face of constant criticism and opposition and publicly and candidly expressed her views.
Chandy was the first woman in Kerala to earn a degree in law. She joined the bar in 1929. She was a member of the Shree Mulam Popular Assembly between 1932-34 and was appointed First Grade Munsiff in 1937, the first Malayalee woman to hold that position.
In 1948, she became a District judge and went on to become a High Court judge in 1959. During her tenure as a judge of the Kerala High Court, she passed a number of important judgments, which reflected a profound understanding of the law as well as an unwavering emphasis on the dignity of the individual and the rights of the accused. Chandy retired from the Bench in 1967. After an illustrious career as a lawyer and a judge, she strove to bring about reforms in society through her service as a member of the Kerala Law Commission. Her biography titled Atmakatha was published in 1973.
Being the first woman to enroll in law college in Travancore, Anna Chandy faced much mockery and opposition from male students and professors. Despite this animosity, she completed her degree with distinction. Anna Chandy’s strong views were often met with shock and outrage by members of society, including public intellectuals and women. Through her periodical titled Shrimati, Anna Chandy argued for women’s status as a distinct group and actively campaigned for reservation
Chandy actively advocated for equality of women and women’s reproductive rights. At the core of her articulation of equality for women were the twin concepts of autonomy and dignity, almost three quarters of a century ahead of the Supreme Court judgment in KS Puttaswamy v. Union of India.
She initially recommended birth control through self-control. In defense of women’s rights to work and earn outside of the home, she recommended ‘ascetic self-control’ to those women who wished to enter the public domain. Given that women’s agency over reproductive rights remains a contentious issue even today, these arguments were well ahead of the times in which she articulated them.
In her work in this area, Anna Chandy made a resolution at the All India Women’s Congress meeting held in Trivandrum in 1935, asking the Government to establish birth control clinics throughout the country. She also asked that necessary information be supplied to those seeking contraceptive advice through municipalities and other institutions.
There was a considerable furore over a Christian woman advocating such a resolution. She was one of the few persons to support contraceptives based on feminist arguments of women’s control over their bodies and reproductive autonomy. She challenged the idea that women’s bodies were merely instruments for men’s pleasure.
She argued for the removal of the exemption of women from the death penalty in Travancore law. She also campaigned against anti-women provisions in the Travancore Civil Procedure such as the husband’s right to file for restitution of conjugal rights. Yet again, she was well ahead of her times, arguing full agency and responsibility for women. The assumed lack of agency of women, their treatment as chattel, and the notion that they are incapable of assuming criminal responsibility continue to haunt courtrooms today. She was a woman to be reckoned with, steadfast in her convictions, and her opinions hold relevance in contemporary society.
Chandy is most famously known for her scathing speech at the Vidyabhivardhini Sabha at Trivandrum, chaired by a High Court judge, where she systematically responded to Velu Pillai, a well-known legislator, intellectual, and writer in Travancore, who argued against government employment for women. Pillai argued that employment should only be given to unmarried women, if at all, so as not to disturb the duties of married women; that employment to married women would concentrate wealth in the hands of a few families unfairly and that giving employment to married women would affect the self-respect of husbands.
Chandy replied that as a result of Pillai’s suggestions, women would remain unmarried in order to work and this would cause more stigmatization. To the second argument, she responded that allowing married women to work, especially in situations where their husbands were too old or ill to work, would only benefit the family. She rubbished the contention that women’s income would affect the self-respect of their husbands, arguing that both men and women were entitled to equal respect. She treated the matter as a petition filed against ‘women’ and systematically rebutted the arguments point-by-point, being the trained lawyer that she was. The debate between Pillai and Chandy continued for a while in the Samadarishi. It is to be noted that Chandy did not enjoy the unreserved support of her own gender while making this argument, many of whom sided with Pillai.
Justice Chandy’s continued interest in women’s rights is also reflected in a dissenting note circulated by her in the 42nd Report of the Law Commission, in which she served as a member. In respect of Section 497 of the Indian Penal Code, punishing only a man for the offence of adultery, Chandy yet again demonstrated considerable foresight to argue that a woman must be equally made culpable for engaging in adultery.
Justice Chandy held very strong and peculiarly conservative views on the preservation of family as a basic unit of societal life. It is perhaps for this reason that while advocating that women must be made equally culpable for the offense of adultery, she defended the criminalization of adultery on the ground that the public at large has an interest in securing the institution of family.
Her view on the importance of familial values is underscored by her opposition in the same note, to conferring an expansive right on a woman to abort. She opined, “it would be difficult to justify such latitude unless we consider the weeks-old foetus in the mother’s womb not as an incipient human life but merely as a ‘uterine tumour’. I do not think such disrespect for human life is compatible with our social values”. This contrast in her approach to women’s rights, perhaps can only be explained by the fact that she was brought up in a conservative Christian family in Kerala
As an advocate and eventually as a judge, Anna Chandy was well known for her grasp on criminal law. But as a member of the Bench of the Kerala High Court, her judgments spanned a wide breadth of topics and her ability to critically analyze diverse areas of law and deliver well-reasoned judgments is commendable.
Despite being the first woman judge in the Kerala High Court, she held her own among her brethren and went on to author many important decisions. The language of her judgments was characterized by pithy articulation and her understanding of cases by infallible logic.
Chandy’s knowledge of criminal law led to some fine decision-making in criminal matters during her tenure as judge of the Kerala High Court. She judged matters on the weight of the evidence and the strength of the case of the prosecution, and was not swayed to convict merely because the crime was a serious one or one that aroused indignation. In one instance, she observed that while the medical report of the deceased stated that the injuries were sufficient to cause death within moments of their infliction, the witnesses had concocted a story about a dying declaration of the deceased about the body being dragged. She observed,
"[…] It also looks strange why the accused who achieved their object in safety by stabbing Alavi in the uninhabited cashew forest should court ready recognition by carrying the body along the widely used foot-path in bright moonlight unless it be to give P.W. 3 a chance to see the fast stage of the incident and the handing over of the knife by accused 1 to accused 2 for safe keeping. All things point to the conclusion that Alavi was found dead or almost dying by the witnesses on the foot-path and the rest of the story was re-constructed so as to fit in with the appearances at the place.
In short the prosecution has only bundled up some suspicious circumstances against the accused. Not an iota of legal evidence is let in to fix the guilt on the accused. The motive is inadequate and capable only of prompting the prosecution to make a false implication. There is an abundance of impossibilities in the case as put forward by the prosecution. The evidence brought against the accused is absolutely unconvincing and inherently improbable. There is no certainty either at the [sic] or at the end much less all along the way. Doubts and nothing but doubts assail us, however much the method of murder arouses our indignation.”
Her approach to criminal law sought to balance the principles of natural justice with the need to prosecute and punish criminal offenders. She believed in ensuring that the rights of the accused were respected at all times and emphasized a humanitarian approach. She warned against the practice of sessions judges appointing junior and inexperienced lawyers to defend accused in capital cases. In a legal system where accused are overwhelmingly under-privileged, she sought to affirm not only their right to counsel but also to a competent one. She observed,
"[…] If however such inexperienced advocates alone are available to defend such unfortunate accused, the court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the advocates from treading on dangerous grounds. In this case it is really unfortunate that the court has instead, freely made use of the defects resulting from the inexperience of the advocates to built [sic] up the case against the accused."
Greatly concerned about the processes of a free and fair trial beyond mere rhetoric, Chandy emphasized the right of the accused to know the charges against him. In Kesavan Moosad v. State of Kerala, she observed that,
"[…] In all cases where the appellate court applies a different penal provision, there is one factor to be guarded against. An accused has a right to know the charge against him and he should be given an opportunity to defend himself. Therefore, it is only in those cases, where there is no reasonable possibility of prejudice being caused to an offender, that the appellate court can alter the conviction under Section 237 Criminal Procedure Code."
In yet another case she observed,
"The burden of proof to establish the guilt of the accused is ever on the prosecution and no plausible criticism of the defence evidence or the failure of the accused to establish his innocence should be deemed as sufficient evidence to discharge that burden."
She was sensitive to those who have a different or innately suspicious relationship with law enforcement. By not counting merely fleeing as a sign of guilt, but insisting that every case must be adjudged on its own merits, she showed yet again her knowledge of the breadth of human experience and her commitment to the maxim “innocent until proven guilty”. She pertinently observed, in Kuttan Pillai alias Kuttappan v. State of Kerala that,
"An absconder can be described as one who intentionally takes himself beyond the due process of law or one who conceals oneself to escape arrest by the police. The Primary meaning of the word abscond is to hide and a person who hides even in his place of residence is said to be absconding. He must have been available at or about the time of the commission of the offence and must have ceased to be available after the occurrence. Subsequent disappearance of the accused is admissible as conduct under Section 8 of the Indian Evidence Act. In the latest Supreme Court decision reported in (1960) 2 S.C.R. 460, Anant Chintaman Lagu v. The State of Bombay, the evidence of the accused’s conduct both prior and subsequent has been utilised to its fullest extent. However as some timid persons even if they are absolutely innocent, deliberately abscond, absconding by itself cannot be considered as proof of guilt. When there is other believable evidence to establish the prosecution case, absconding may be used as furnishing further proof of the correctness of the conclusions. Each case must be determined on its own facts and the truth or otherwise of the explanation of the accused must be the deciding factor in any case.”
During her tenure, she adjudged criminal cases wherein the defence of intoxication was taken to establish the absence of mens rea. She observed,
"The degree of intoxication is the criterion. “Was the man besides his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention”. In the present case, the accused though drunk has not gone so “deep in drinking” as not to know what he was about. When P.W. 1 pacified him by promising to settle the matter next day, he made no protest and betrayed no sign of excessive drunkenness. His conduct all along clearly shows that he could form correct decisions in matters that affected him. At best the intoxication has only touched his mind so that “he more readily gave way to some violent passion”. It is not possible to reduce the offence from murder to one of culpable homicide not amounting to murder because of the accused’s voluntary drunkenness."
She found that “[…] as the degree of the accused’s intoxication falls short of a proved incapacity in the accused to form the necessary intent to commit murder, the offence is murder."
Chandy also pronounced judgments dealing with important legal concepts such as the prerequisites for establishing common intention under section 34 of the Indian Penal Code of 1860; the threshold of intoxication that would preclude mens rea, and in one instance, she found that in the absence of premeditation, the penalty of death in case of murder would be excessive.
However, the breadth of her expertise was in no way limited to this particular area of law. In an important decision pertaining to company law, Justice Chandy examined the charge against directors for offences under sections 32(5) and 134(4) of the Companies Act, 1913. She interpreted the meaning and import of the phrase “knowingly and willfully authorizes or permits the default”, and distinguished between the liability of a company and that of its officers in the following manner:
“[…] The company’s liability is absolute while that of its officers is made dependent on whether they were knowingly or willfully parties to the default. No doubt a company has to act through its officers and the officers may be presumed to know the duties cast on the company by law, but if that alone were, sufficient to saddle the officers with liability for every default of the company, then it is quite unlikely that the section would have made express mention of the element of knowledge and willfulness as the requisite condition for making the officers liable for the default of the company. Indeed, the object of these qualifying words seems to be to distinguish between innocent defaulters and those who consciously and intentionally become parties to the default and in our opinion unless there is some evidence to show that the officers were involved in the default “knowingly and willfully” they do not become liable to be punished for every default of the company.”
She concluded that, “[…] It therefore seems that the words “knowingly and willfully authorizes or permits the default” signify that the gist of the crime is conscious and deliberate action (or omission). Defaults caused unintentionally or by inadvertence have to be excluded.”
Chandy also adjudicated upon matters relating to food adulteration. She held that section 2(1)(j) of the Prevention of Food Adulteration Act, 1954 would be attracted if an article of food contained a colouring matter other than the one prescribed under the rules and if it was not within the prescribed limits of variability, it would be punishable under section 7(i) read with section 16(1)(a) of the Prevention of Food Adulteration Act.25 She observed that it is not up to the seller to contend that despite not conforming to the standards under the Act, the food article was not adulterated
Anna Chandy, a woman of great conviction, overcame all odds to become one of the pioneers of the women’s rights movement in Kerala. Her ideas were well ahead of her time, with great emphasis on a rights-based approach. The judgments, articles and positions she articulated throughout her life reflect a vision that was perhaps only understood much later. History, sadly, has not been kind to her as she has been barely remembered among the other woman stalwarts in India. It is to this memory of her that this paper is dedicated.
K Parameshwar is an Advocate-On Record at the Supreme Court of India; and Medha Damojipurapu is a 5th-year student at the NALSAR University of Law, Hyderabad.
Jim Sharpe, History from Below, in New Perspectives on Historical Writing, 74 (Peter Burke ed., University Park, Pa., 1992)
Rupsha Bhadra and Debroop Basu, Manu and the “muse”, The Telegraph, June 17, 2018
Aditi Shah, India’s First Woman Judge, Live History India, June 17, 2018
J Devika, Her-Self: Gender and Early Writings of Malayalee Women (2005)
J Devika & Binitha V Thampi, New Lamps for Old?: Gender Paradoxes of Political Decentralisation in Kerala (2012)
Anna Chandy, Streeswatantryathe Patti (On the Liberation of Women), Sahodaran, Special Issue (1929)
Robin Jeffrey, Politics, Women and Well Being: How Kerala Became a Model 196 (Oxford University Press 2001)
J Devika, Her Self: Gender and Early writings of Malayalee Women (1898-1938) (2005)
Kunnummal Mohammed v State of Kerala, AIR 1963 Ker 54 at paras 31 and 32 ; Kesavan Moosad v State of Kerala, 1963 KLJ 342 at para 8
Raman Pillai v State of Kerala, 1964 KLJ 1103 at para 15
Kuttan Pillai alias Kuttappan v State of Kerala, 1960 KLJ 1273 at para 16
Narayanan v State of Kerala, 1959 KLJ 623 at para 5
Kunhooty alias Ulahannan v State, 1959 KLJ 940 at para 7
State of Kerala v Raghavan,1959 KLJ 785 at para 11
Balakrishna v The State, 1959 KLJ 13 05 at para 11
Registrar of Companies, Kerala v Gopala Pillai,1961 KLJ 490 at para 11
Food Inspector, Trichur v OD Paul, AIR 1965 Ker 96
Food Inspector v Indian Medical Practitioners Co-operative Pharmacy Stores Ltd, 1962 CriLJ 433