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“Parody of Justice”
Dress of Advocates Appearing in Courts of Higher Judiciary
Aping of British Colonial System Continued,
Indian Rules Ignored With Impunity
by K.L. Rathee†
Cite as : (2004) PL WebJour 5
The rules framed under Section 49(1)(gg) of the Advocates Act, 1961, prescribe the same dress for all the advocates irrespective of whether they are designated Senior Advocates or other advocates as follows:
“Chapter IV
Form of dress or robes to be worn by advocates
[Rule under Section 49(1)(gg) of the Act]
Advocates, appearing in the Supreme Court, High Court, subordinate courts, tribunals or authorities shall wear the following as part of their dress which shall be sober and dignified;
Advocates other than lady advocates:
1. (a) a black buttoned-up coat, chapkan, achkan, black sherwani and white bands with advocate’s gown, or
(b) a black open breast coat, white collar, stiff or soft, and white bands with advocates’ gowns.
In either case long trousers (white, black, striped or grey) or dhoti.
Lady advocates:
2. (a) black and full or half-sleeve jacket or blouse, white collar, stiff or soft, and white bands with advocates’ gowns;
(b) sarees or long skirts (white or black or any mellow or subdued colour without any print or design) or flares (white, black or black-striped or gray):
Provided that the wearing of advocate’s gown shall be optional except when appearing in the Supreme Court or in a High Court.
Provided further that in court other than the Supreme Court, High Court, District Court, Sessions Court or City Civil Court, a black tie may be worn instead of bands.”
It will be noticed from the above, that no special dress is prescribed for designated Senior Advocates. However, Senior Advocates illegally wear a different gown which is distinct from the normal gown worn by all other advocates. They put on Queen’s Counsel gown, although they are not Queen’s Counsel, and display and show other advocates, courts and clients that they have got a seal of superiority attached to them by their different dress. They illegally wear a coat or jacket decorated with frills and fineries with double back and arms flowing. Their sole object is to attract the attention of their colleagues, clients and courts that they are superiors picked out of one and the same class of advocates.
This conduct of the Senior Advocates contravenes the abovesaid rules which prescribe one and the same dress for all advocates and it also violates Article 14 of the Constitution.
The Queen’s Counsel gown worn by Senior Advocates is the heritage of British legal profession which is no longer extant in India. Therefore, Senior Advocates have no right to wear the Queen’s Counsel gown in India when the Queen is no longer the Ruler in India, nor British legal dress prescribed in India.
The pernicious effect of this optical distinction is graphically described in the following words of Sir David Napley (“Art of persuasion” by Sir David Napley — Sweet & Maxwell):
“Indeed, it is regrettable that consideration has not been given to this matter, as it already affects those courts where equal rights of audience have long existed. The adversarial system which we employ requires; at least in theory that as far as is practicable each side should be evenly represented. If one side appears by a barrister dressed in one kind of gown and wearing a wig more in keeping with the seventeenth century, whilst the other side has only a bareheaded solicitor dressed in a different sort of gown but which appears to be similar to that worn by the court usher, where stands the theoretical fairness of the system?
It should not be thought that this is a mere quibble. Some years ago I appeared on behalf of a defendant at Bow Street Magistrate’s Court in a revenue case. The Revenue was represented by a barrister employed in that Department, the Magistrate was also a barrister, but he had only recently been appointed and knew neither my opponent nor me, and, of course, we were both unrobed. At that time counsel sat in a bench to the left of the Magistrate; solicitors at a bench in front of him. Because the case involved a vast quantity of documents and the table at the solicitors’ bench was much larger than that of the counsel bench, my adversary suggested we change positions to which I agreed. As the committal proceedings continued and I, occasionally, raised procedural or evidential objections, the Magistrate uniformly upheld them. When, after many days, the documentary evidence had largely been adduced, my adversary suggested we might resume our proper places. We did so. From then onward, such objections as I advanced were almost uniformly overruled. It is of course possible that my earlier objections were more valid than my later ones; there is also another possible explanation.
It must be desirable that advocates of whichever branch, appear in the same form of attire and address the court from the same bench as one another. Anything else seems indefensible as much from a psychological as an equitable point of view. Lawyers in other jurisdictions find it odd that silks are placed in a pre-eminent place in our courts, once more upsetting the balance of the adversarial systems.
When the new procedures are introduced these defects may, it is to be hoped, be remedied, perhaps the time may now have come to abolish wigs, with the approach of the twenty-first century; the Lords of Appeal in ordinary seem to manage very well without them.”
Back home in India it will be interesting to note the following from:
(1962) 2 MLJ Articles Section, pp. 20-21
(Refers to Popolski’s Legal London by Francis Couper)
“From a purely practical point of view these robes are great levellers so far as the Bar is concerned. In robes the most poverty-stricken junior will not be put out of countenance by any man in court and will not be at any disadvantage in the face of opponents wearing costly and fashionable dresses.
Thus what was meant to be an equalizer (namely the dress) is itself being used to create an unfair distinction and defile the temple of justice.”
With a view to setting things right in proper perspective a non-political and non-sectarian professional organization dedicated to the pursuit of excellence in the legal profession, named “Lawyers Reformist Forum (Registered)”, filed a Writ Petition No. 1959 of 2001 in the High Court of Delhi praying for a direction to the Bar Council of India to enforce its Rule prescribing the same dress for all advocates. Petitioner cited a number of authorities to the effect that tradition cannot override the law in support of its contention but the said writ petition was dismissed by the learned Single Judge of the High Court holding that:
“While it is true that the Rule framed by the Bar Council of India does not make out any distinction in dress or prescribe the design of a different gown or coat for a Senior Advocate, yet the distinction has been maintained and followed by a practice of long-standing even prior to the Advocates Act of 1961.
* * *
One is left aghast and wondering as to how a deviation from a prescribed Rule can be justified by any person by claiming that ‘this is my practice’.”
Being aggrieved by the above judgment dated 9-7-2002 of the learned Single Judge of the High Court, the petitioner filed a Letters Patent Appeal No. 616 of 2002 before a Division Bench of the High Court of Delhi. When the appeal was heard on 4-2-2003 by the Division Bench of the High Court, the petitioner’s Advocate, Shri Narayan N. Keswani, in addition to the authorities cited before the learned Single Judge, also cited the latest ruling of the Hon’ble Supreme Court of India reported in N. Adithayan v. Travancore Devaswom Board1 (SCC at p. 125) on the subject. However, the Division Bench dismissed the appeal and confirmed the judgment and order passed by the learned Single Judge of the High Court. As a last resort, the petitioner association filed a Special Leave Petition No. 6067 of 2003 in the Hon’ble Supreme Court of India. The said petition came up for hearing on 17-4-2003 before a Division Bench of two learned Judges of the Hon’ble Supreme Court of India and after an extensive argument heard in a jampacked courtroom the petition was dismissed in limine by passing the following non-speaking order:
“The special leave petition is dismissed.”
And this, notwithstanding the fact that the law laid down on the same ratio by another Division Bench of two learned Judges in the Travancore Devaswom Board1 case which was cited during the hearing of the case, was binding on the above Bench of the two learned Judges of the Hon’ble Supreme Court of India.
The short question is that, can the so-called tradition of the Senior Advocates wearing the dress like that of the Queen’s Counsel overrule the codified law prescribing the dress for all the advocates contained in the Rules framed by the Bar Council of India under the Advocates Act, 1961?
The High Court of Delhi has relied on long-standing tradition which is milder than custom and this is what English law contained in Halsbury’s Laws of England, 4th Edn., Vol. 12, para 442 has held:
“442. As a general rule, if the provisions of an Act of Parliament are repugnant to the continued existence of the custom, the custom will be treated as abrogated and destroyed, although the Act does not actually extinguish the custom by express words.”
In our country also, the Andhra Pradesh High Court has held in the case reported in Padala Latchamma v. Mutchi Appalaswamy2 (AIR at p. 56, para 3 bottom) as follows:
“A custom which attempts to defeat or nullify a statute must be struck down as invalid without further examination, for the simple reason that the legislature had determined the policy of the law and what law would govern the parties; and that legislative enactment shall prevail unless the enactment itself saves any prevailing custom to the contrary.”
Further, the Hon’ble Supreme Court of India in its judgment reported in N. Adithayan1 (SCC at p. 125, para 18) has mandated as follows:
“Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”
This is the law of the land and has to be followed by enforcing the Rule framed by the Bar Council of India under the Advocates Act, 1961, prescribing the same dress for all advocates and abolish the archaic British dress of Queen’s Counsel worn by the designated Senior Advocates in our country. Arguments should be oral and not optical.
How can an honoured Senior Advocate justify his conduct of deviation from the codified Rules by pleading “this is my practice”?
The dictum “Be you ever so high, the law is above you” should be equally applicable to the Hon’ble Judges of the High Courts and the Apex Court; otherwise, the whole concept of justice in our country will be reduced to a “Parody of Justice!”
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