(2015) 440 KLW 039
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M.SHAFFIQUE, J.
W.P.C.No.10994 of 2010
Dated this the 7th day of December 2015
PETITIONER(S)
DR.VINCENT PANIKULANGARA, LAWYER, JYOTHIRGAMAYA, P.O.ATHANI - 683585 ALUVA, ERNAKULAM DIST, KERALA STATE.
BY ADVS.SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN
RESPONDENT(S)
1. UNION OF INDIA, LAW & JUSTICE, SHASTRI BHAWAN, NEW DELHI - 110 001.
2. BAR COUNCIL OF INDIA,REP: BY THE SECRETARY, ROSE AVENUE, NEW DELHI-110 001.
3. THE REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM, COCHIN -31.
4. BAR COUNCIL OF KERALA, REP:-
BY ITS SECRETARY, COCHIN - 31.
5. KERALA HIGH COURT ADVOCATES, ASSOCIATION, REP:BY SECRETARY, COCHIN - 31.
6. KERALA WOMEN LAWYERS'S FEDERATION, REP:BY ITS SECRETARY, COCHIN- 31.
7. BASIL ATTIPETTY @ BASIL A.G., AGED 55 YEARS, S/O.GEORGE, ATTIPETTY HOUSE, NAYARAMBALAM, KOCHI - 682 509.
R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 BY ADV. SRI.RAJIT, SC, BAR COUNCIL OF INDIA R3 BY ADVS. SMT.V.P.SEEMANDINI (SR.) SRI.M.R.ANISON R7 BY ADV. SRI.A.G.BASIL
J U D G M E N T
This writ petition is filed seeking the following reliefs:-
“i) to strike down Exts:P-1 and P-2 declaring them as illegal and unenforceable;
ii) to issue a writ in the nature of mandamus or any other writ, direction or order commanding the respondents 2 and 3 to make rules for a dress code for Advocates having regard to the climatic conditions and disassociating from the British colonial hangover;
iii) a writ in the nature of mandamus or any other writ, direction or order commanding the 1st respondent to appoint a Commission of Inquiry under Section 3 of the Commissions of Inquiry Act 1952 to enquire into and suggest appropriate dress code for Advocates;
iv) a writ in the nature of mandamus or any other writ, direction or order commanding the respondents 1, 2 and 3 prohibit the intimidating dress code in courts, where children and illiterate rural people are likely to be involved;
v) any other relief that this honourable court deems fit and proper in the nature and circumstances of the case, including a direction to pay costs to the petitioner.”
2. Petitioner is a Lawyer by profession. His grievance is with reference to the Rules by which Advocates both men and women in Kerala are forced to wear black coat, black gown and white bands to appear in Courts even during summer. He alleges that it causes severe hardship and inconvenience on account of profusely sweating inside the dress and of making a dignified presentation the next day. According to him, wearing of the said robes is difficult even during rainy season.
3. According to the petitioner, rules or dress code for the lawyers was thrust upon without taking into consideration the actual requirements. It is pointed out that black dress is the mourning dress in England which continued to be the uniform of Judges and Lawyers. According to him, though substantial changes have been made in various parts of the world, the rules of High Court of Kerala and the rules framed by the Bar Council still insist for black coat, black gown and white bands. It is further stated that prescription of the dress code without having regard to the climatic condition is arbitrary, violating Articles 14, 19(1)(g) and 21 of the Constitution of India and also
Section 49(1)(gg) of the Advocates Act, 1961
(hereinafter referred to as 'the Act'). Ext.P1 is the rules framed by the High Court of Kerala under Section 34(1) of the Advocates Act, 1961 which reads as under:-
“Rule 12 of the Rules Framed by the High Court of Kerala under Section 34(1) of the Advocates' Act, 1961 regarding Conditions of Practice of Advocates Advocates appearing in Court shall wear the following dress:-
(1) Advocates other than Lady Advocates:-
(a) Black buttoned-up coat (chapkan, achakan or sherwani), Barrister's or Bachelor of Law's gown and white bands, or
(b) Black open collar coat, white shirt, white collar, stiff or soft with Barrister's or Bachelor of Law's gown and bands.
(2) Lady Advocates:-
Regional dress of subdued colour with Barrister's or Bachelor of Law's gown white collar, stiff or soft, and bands.”
4. Ext.P2 is the rules framed by the Bar Council of India which reads as under:-
“Chapter IV of the Bar Council of India Rules Advocates appearing in the Supreme Court, High Courts, Subordinate Courts, Tribunals or Authorities shall wear the following as part of their dress which shall be sober and dignified:-
I. Advocates other than Lady Advocates
(a) a black buttoned up coat chapkan, achkan, black sherwani and white bands with Advocates' Gown, or
(b) a black open breast coat, white shirt, white collar, stiff or soft and white bands with Advocates' Gown.
In either case long trousers (white, black striped or grey) or Dhoti.
II. Lady Advocates
(a) Black and full or half sleeve jackets or blouse, white collar, stiff or soft, with white bands and Advocates' Gown OR White blouse with or without collar, with white bands and with a black open breast coat.
(b) Sarees or long skirts (white or black or any mellow or subdued colour without any print or design) or Flare (white, black or black stripped or grey) or Punjabi dress (Churidar-Kurta or salwar-kurta, with or without dupatta) white or black.
Provided that the wearing of Advocates' Gown shall be optional except when appearing in the Supreme Court or in a High Court:
Provided further that in courts other than the Supreme Court, High Court, District Court, Sessions Court or City Civil Court, a black tie may be worn instead of bands.”
5. Counter affidavit has been filed by the 2nd respondent inter alia stating that it is a statutory body responsible for laying down standards of professional conduct and etiquette for Advocates and all matters relating to safeguarding the rights, privileges and interests of Advocates in terms with the Act. It is also stated that the Bar Council of India is entitled to frame rules regarding dress of Advocates in Court which power is covered under Section 49 and under Section 49(1)(gg) of the Act. it is contended that the Bar Council of India Rules clearly states that except the Supreme Court and High Court, during summer, wearing of black coat is not mandatory. Ext.R2(a) has been produced to substantiate the above contention wherein it is indicated that, “IV. Except in Supreme Court and High Courts during summer wearing of black coat is not mandatory”. It is therefore contended that there is no basis for the aforesaid contention.
6. Heard petitioner in person and the learned counsel appearing for the respondents.
7. Petitioner apparently challenges the vires of the rules which was already extracted, in Ext.P1 and P2.
8. Late Sri.Basil Attippetty, who appeared as party-inperson and has impleaded in the case placed reliance on the judgment in
Prayag Das v. Civil Judge Bulandshahr [AIR 1974 ALLAHABAD 133].
The above case relates to a challenge made by the petitioner who was an Advocate, while taking exception to the dress prescribed for Advocates. When he appeared before the Court challenging an order of the Civil Judge Bulandshahr preventing him from appearing in the Court and a direction was sought to permit him to appear in the Court as an Advocate wearing Dhoti, Kurta and Gown as his dress.
9. The Division Bench of the Allahabad High Court held at paragraphs 9 and 18 as under and dismissed the writ petition.
“9. It is correct that the High Court does not possess the power to take away an Advocate's right to practise in courts. That power can be exercised only by the Bar Council which may also frame rules undo Section 49(ab) of the Advocates Act. But, in our opinion the High Court has a power to regulate the appearance of Advocates in Courts. The right to practise and the right to appear in courts are not synonymous. An Advocate may carry on chamber practice or even practise in court is various other ways. e.g., drafting and filing of pleading and Vakalatnama for performing those acts. For that purpose his physical appearance in court may not at all be necessary. For the purpose of regulating his appearance in court the High Court should be the appropriate authority to make rule and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rule for regulating the appearance of Advocates, and proceedings inside the courts. Obviously the High Court is the only appropriate authority to be entrusted with this responsibility. However, so far as the basic qualification of an Advocate entitling him to practise without physically appearing in court, or disentitling him from doing so are concerned, the determination of such conditions must remain within the exclusive province of the Bar Council. The same division of functions is borne out by the difference in the language of the two provisions. Whereas clause (ab) of Section 49 refers to the conditions subject to which an Advocate shall have the right to practice. Section 34(1) deals with the conditions subject to which an Advocate shall be permitted to practise. The expression "permitted to practise"in the context can have only one meaning i.e., the right of physical appearance in Court. The word "permitted" refers to a particular occasion when an Advocate wants to appear in a Court and not to his general right to practise which is solely determined by the Bar Council. Refusal by a Court to permit an Advocate to appear before it does not amount to extinction of the Advocate's legal entity as an Advocate. It merely bars his physical appearance in a particular Court on a definite occasion. For the purpose of deciding as to whether the Advocates' physical appearance In a Court may be allowed or disallowed, his dress can be a relevant factor. Consequently, the High Court was competent to frame Rule 12 prescribing Advocates" dress in exercise of the power under Section 34(1) of the Advocates Act. The words "laying down the conditions subject to which an advocate shall be permitted to practise"must be given a restricted meaning of permitting physical appearance of the Advocate and not his general right to practise as an Advocate. We are, therefore, unable to hold that Rule 12 of the Rules framed by the High Court is void or ineffectual.”
“18. In our opinion the various rules prescribing the dress of an Advocate serve a very useful purpose. In the first place, they distinguish an Advocate from a litigant or other members of the public who may be jostling with him in a Court room. They literally reinforce the Shakespearian aphorism that the apparel oft proclaims the man. When a lawyer is in prescribed dress his identity can never be mistaken. In the second place, a uniform prescribed dress worn by the members of the Bar induces a seriousness of purpose and a sense of decorum which are highly conducive to the dispensation of justice. Of late there has been a lamentable slackness in matters of lawyers'dress. We feel that the lifting of a prescribed dress for Advocates and courts is apt to precipitate sartorial inelegance and judicial indecorum. If the rule is relaxed it is not unlikely that Advocates may start dressing themselves more and more scantily and even indiscreetly. The apprehension might be well illustrated by a dialogue which is alleged to have transpired between the Australian squatter and his friend who visited him on his estate far away in the wilds of the interior. The friend asked him why, in so remote a place be made it a practice to dress for dinner. "I do it,"said the squatter, "to avoid losing my self-respect. If I did not dress for dinner I should end by coming into dinner in my shirtsleeves. I should end by not troubling to wash. 1 should sink down to the level of the cattle. I dress for dinner, not to make myself pretty, but as a spiritual renovation.”
10. Yet another judgment relied upon is the judgment of the learned Single Judge of the Delhi High Court in
Parashar v. Bar Council of India [2002 KHC 1053].
The challenge in the said writ petition was in respect of the rules framed under Section 49(1)(gg) of the Act and it was contended that the senior Advocates cannot wear the Queen's Counsel Gown and it was held at paragraph 7 as under:-
“7. Having heard the learned counsel for the parties and perused the pleadings, I am of the view that the writ petition as filed is misconceived and devoid of merit for the reasons noted below: 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. The Advocates Act 1961 itself has recognised a distinction in S.16 of the Advocates Act 1961 between the senior advocates and advocates. S.23 of the Act provides for right of pre audience for Senior Advocates among others. The senior advocates constitute a different class within the advocates. Based on the ability, knowledge, experience, expertise and standing at the bar, an advocate is designated as a senior advocate. It is an honour and distinction conferred by the court in recognition of the ability and standing of the concerned advocate. Once the distinction between an advocate and a senior advocate is accepted and accorded statutory recognition, the wearing of a distinct gown or a coat by a senior advocate, which is different from the one worn by advocates, cannot be questioned or assailed as discriminatory or violative of Art.14 of the Constitution of India. The plea of the petitioner that a bias is created in favour of a senior advocate, who wears a gown with frills or overflowing arms or on account of the design of the coat, in the mind of a judge is without any supporting evidence or factual foundation and deserves to be outrightly rejected.”
11. The main contention urged by the petitioner is that such a dress code is unwarranted as even party in person is entitled to appear before Court and argue the case, and there is no reason for having a distinction between a citizen of India and an Advocate. Petitioner has no case that there is no power to frame rules. The only contention is that the dress code creates difficulties for a Lawyer practising in Courts. The main difficulty ventilated is the sweating during summer especially in State of Kerala.
12. Before proceeding further, it will be useful to refer to the salient provisions of the Act. Certain provisions of the Act especially Sections 29, 30, 33, 34 and Section 49(1)(gg) read as under:-
“29. Advocates to be the only recognised class of persons entitled to practise law.—
Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.
30. Right of advocates to practise.—
Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,—
(i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
33. Advocates alone entitled to practise.—
Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.
34. Power of High Courts to make rules.—
(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto. (1-A) xxxx (2) xxxx
49. General power of the Bar Council of India to make rules.
(1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe—
xxx
(gg) the form of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before any court or tribunal;
13. Therefore, it could be seen that Advocates alone are permitted to practise the profession of law and the Advocates forms a class of persons by itself, and only those persons who are enrolled has the right to practise throughout the territories where the Act extends, as mentioned under Section 30 of the Act. Section 34 gives power to the High Courts to make rules laying down the conditions subject to which an Advocate shall be permitted to practice in the High Court and the Courts subordinate thereto. Section 49 gives power to the Bar Council of India to make rules. It is pursuant to the power that is vested in the High Court in terms of Section 34 and the Bar Council of India in terms of Section 49(1)(gg) that the dress codes have been provided. Therefore the competence of the High Court as well as the Bar Council of India to frame rules cannot be questioned.
14. Of course, a subordinate legislation can be questioned on various grounds. In
Indian Express Newspapers v. Union of India, [(1985) 1 SCC 641],
it is held that subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. It may also be questioned on the ground that it does not conform to the statute under which it is made, it is contrary to some other statute, on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.
15. As already held, the Advocates form a class by itself in
Satish Kumar Sharma v. Bar Council of H.P., [(2001) 2 SCC 365],
the Supreme had occasion to make the following observations”
“10. The profession of law is called a noble profession. It does not remain noble merely by calling it as such, unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted. An institution cannot survive on its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and an honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich traditions consistent with its grace, dignity, utility and prestige. Hence the provisions of the Act and the Rules made thereunder inter alia aimed to achieve the same ought to be given effect to in their true letter and spirit to maintain clean and efficient Bar in the country to serve the cause of justice which again is a noble one.”
16. Therefore, the Advocates are persons who are supposed to be the guardian of rule of law, as they have to advise the public at large in regard to the legal rights and obligations, maintenance of law and order and rule of law. The public view the Advocates as men of knowledge, integrity and persons upholding the rule of law. The society had always viewed the profession of advocacy as eminent and dignified.
17. Coming to the dress code, it is the settled position of law that, to practise as an Advocate, it is a statutory as well as a fundamental right, and therefore reasonable restrictions can be imposed. Providing a dress code for those practising in various Courts can only be termed as a reasonable restriction and cannot be termed as either arbitrary or unreasonable.
18. The rules framed by the Bar Council of India under Section 49(1)(gg) itself has taken care of such a situation wherein it is stated that during summer, wearing black coat is not mandatory. The contention that prescription of the Rules by the High Court and the Bar Council of India violating Articles 14, 19(1)(g) and 21 are not substantiated. As held by the Allahabad High Court in Prayag (supra), the dress of an Advocate distinguishes him from a litigant or other members of the public who comes to a Court. Apart from identity, the dress worn by the Advocate clearly induces the seriousness of purpose and a sense of decorum which are highly necessary and conducive for the dispensation of justice. I fully endorse with the view expressed by the Allahabad High Court in the above matter.
Such being the position, I do not think that the challenge to the rules is sustainable and accordingly this writ petition is dismissed.
(sd/-) (A.M.SHAFFIQUE, JUDGE)
jsr //True Copy// PA to Judge