The origins of lawyers wearing black gowns lie in medieval England, In India, depending on the weather and the relevant high court, rules regarding gowns vary. In many lower courts, gowns are dispensed with. In the Supreme Court, they are worn the whole year round
By Nayantara Roy.
Every so often, the debate in bar rooms turns to why Indian lawyers should still be in mourning for King Charles II. The anachronistic, but admittedly impressive, black gowns that lawyers wear lend solidarity and order to a profession that is held together chiefly by the observation of quaint traditions.
Amidst the talk surrounding the attire of judges and lawyers around the world whose legal system is derived from the British common law system is that of black gowns worn in India and other Commonwealth countries as well as Great Britain. The reason why they are black is because the bar went into mourning after the death of English King Charles II. And, as law professor Charles Yablon in his article “Wigs, Coifs and other Idiosyncrasies of English Judicial Attire”, comments: “They have apparently never gotten over it.”
BAR IN MOURNING
During the time of King Edward III, fur and silk-lined robes had become the norm for judicial officers. Judges generally wore green in summer, violet in winter and red on formal occasions. According to an article in the June 2005 issue of the Western Australian Bar Association Review called “Why Do Barristers Wear Robes?”, barristers in the Tudor period wore brightly colored robes closed at the front. It gradually evolved to “a long open gown of somber color, typically mulberry”. Black slowly became a preferred color for barristers and eventually, upon the death of King Charles II, they went into mourning, hence the mourning gown, the predecessor of lawyers’ gowns.
In India, depending on the weather and the relevant High Court, rules regarding gowns vary. In many lower courts, gowns are dispensed with. In the Supreme Court, they are worn the whole year round.
KC Mittal, former chairman of the Bar Council of Delhi and former president of the Delhi High Court Bar Association, said that the idea of a uniform is to project a certain uniformity of purpose. It symbolizes that the wearer is involved in advancing justice and stands for honesty, decency, dignity and decorum. At the same time, he said, some feel the Bar should not give an impression that it has adopted this British legacy wholesale. Some changes in uniform are necessary, taking into consideration Indian traditions and weather, as has been done in the Delhi High Court where gowns are traditionally dispensed with between Holi and Diwali.
DHOTI AND GOWN
The Advocates Act, 1961, empowers the Bar Council of India to make rules for “the form of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before any court or tribunal”. Accordingly, Chapter IV of the Bar Council of India Rules permits clothes in various combinations of black and white, including allowing the wearing of achkan, chapkan, dhoti and sherwani for men. Jeans are expressly not allowed. “Lady advocates” may wear sarees, long skirts, churidar-kurta or salwar-kurta with an extra dispensation for color that the men do not have, additionally permitting “any mellow or subdued colour without any print or design”. The black coat is to be worn over these.
In general, black coats are not mandatory in summer in courts, other than the Supreme Court or high courts. Of course, the rules mention that the dress “shall be sober and dignified”. Bands must be worn with the exception that “in courts other than the Supreme Court, High Courts, District Courts, Sessions Courts or City Civil Courts, a black tie may be worn instead of bands”.
In April 2014, there was a to-do in Karkardooma courts where a lawyer nun appeared wearing her habit but with the correct black coat and white neck band. But when Sister Jasmine’s attire was objected to, she pointed out that if turbans were allowed, why the discrimination against the habit? Of course, while framing rules, the Bar Council would not have considered a nun’s habit, but there seems sufficient flexibility within the rules to include a habit, provided it corresponds to the color scheme prescribed.
ADVOCATES AND MONKS
Furthermore, if her head covering was in issue, the objecting advocates should have recalled the connection between an advocate’s gown and a monk’s robe. According to Yablon, the wig (which mercifully is not regularly worn in India) was predated by “the distinctive medieval legal headdress the coif, a piece of white linen which seems originally to have been designed to cover the tonsure of monks who were acting in a legal capacity”. He goes on to say that “by the late sixteenth century, however, all members of the legal profession wore round black skullcaps to court, with the white edges of the coif sticking out underneath. When wigs were introduced, judicial wigs had a small version of the skullcap and coif sewn into them”. So much for not being allowed to wear a habit!
Going back to the gown and its connection to monkhood, theories about the little black triangular piece of cloth which sticks out at the back of the gown vary. The less favoured theory is that it is a leftover from the traditional monk’s cowl (hood). Another dull but probable theory from the Western Australian Bar Association Review article is that this is just a part of the mourning regalia worn for Charles II, ie, it is the hood that goes with the mourning gown and is shaped thus. “This was cast over the barristers’ left shoulder and held in place by a long tassel known as liripipe, originally held in the left hand. This liripipe has survived on the robe today, and is now represented by the strip of cloth that hangs down the front of the modern gown.”
However, the theory that has more cachet is that this hood-like piece of cloth, was a pouch for fees. It has been described as having two compartments, one for silver coins and one for gold ones, although today, there are no such compartments in the Indian gown. Payment was made into this pouch without the lawyer seeing the amount. The rationale was that “if barristers could not see how much they were being paid, the quality of their advocacy in court could not be compromised”. And of course, it was to “maintain the dignity of the barrister”.
Then, there are those two rectangular strips of white cloth that stick out like a bib instead of a tie that lawyers wear, the bands. What exactly is the origin of these? The Western Australian Bar Association Review attempts to trace the origins of the bands or “jabot”. Theories abound from their beginnings as a replacement for the fussy Edwardian ruff to two pieces of linen cloth tied with lace to hide the shirt collar. These symbolize learning in that they were also worn by doctors and clergymen and signify the tablets of Moses.
Supreme Court advocate Prateek Jalan, recalling his Calcutta High Court days, describes an episode concerning “mourning bands”. In the Calcutta High Court, lawyers and judges wear special “mourning bands” at a time of national or state mourning, or when the Court is in mourning. Additionally, judges wear a white sleeve over their regular sleeve as a sign of mourning. Jalan recalls an argument between a lawyer and a judge on one such occasion. The lawyer was not wearing his “mourning bands”. The judge said, (as is the traditional manner in which a judge indicates to a lawyer that he is improperly dressed): “I cannot hear you.” To which the lawyer, realizing why he had been hauled up, wondered aloud if state mourning should only be applicable to judges as they are part of the “organs of the state”, whereas lawyers being private citizens, should not be required to wear official signs of mourning!
Something that advocates should keep in mind is that Rule 8 of the Bar Council of India — Rules On An Advocate’s Duty Towards the Court– stipulates that “an advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe”.
TOO MANY BARS
And what exactly is this “bar” that these costumed professionals belong to? As Ian Pilarczyk regretfully informs us in his article, “The Origins of Passing the Bar”: “A common assumption is that there is some connection with admission to the legal profession and the ancient relationship between lawyers and taverns. …. However much the public may enjoy the putative connection between the legal profession and alcoholic libations, however, this is not the true origin of the term.”
Pilarczyk claims the word has its origin in the French barre or the Latin barra. In England, the bar was the wooden bar that stood in front of English and Welsh courtrooms. Originally, at the Inns of Court, the bar separated “benchers” from the main hall. Students who had reached a certain level were “called to the bar” to participate in moot courts. By the 1600s, the bar was the barrier in the courtroom that separated the officers of the law from those not part of the legal profession, usually a party to the case.
Despite the British/European origins of this uniform, there is a certain universal quality in these traditions of respect for learning, and for the gravity of the law. This is something that advocates would do well to remember before they embark on acts of hooliganism that have made headlines in India in the past few months.