J.R. Parashar, Advocate And Ors. ... vs Bar Council Of India
2002 Latest Caselaw 1012 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner Mr. J.R. Parashar Along with two other advocates has filed CW No. 647/2001 seeking a mandamus for enforcement of Chapter IV of Bar Council of India Rules 1975 framed under Section 49(1)(gg) of the Advocates Act 1961, which prescribes the form of dress or robe to be worn by advocates. An order of restraint is also sought against the senior advocates from wearing what is described as the Queens Counsel (QC), gown contrary to the above rule. The petitioners' case in brief is that the relevant rule prescribes the same dress for all advocates. Senior advocates therefore cannot wear the QC gown as also the short coat or jacket decorated with frills and fineries, to make out a different class of advocates.

2. CW No. 1959/2001 has been filed by the Lawyers Reformist Forum, through its President Shri K.L. Rathee, seeking a writ of mandamus to restrain the Senior Advocates from wearing the Queens Counsel gown, contrary to the Bar Council Rule and to direct all advocates including senior advocates to wear the dress or robe as prescribed under the Rule. The forum claims to be a Society with the object of promoting ethical standards in the profession and to ensure the availability of legal services to the economically weak sections of the Society. Notices to show cause in these two writ petitions were issued and Counter affidavits have been filed.

3. Mr. N.N. Keswani appeared for the petitioner in both he abovementioned writ petitions and Mr. Sanjeev Sachdeva appeared for Bar Council of India.

4. Learned counsel for the petitioners in both the writ petitions Mr. N.N. Keswani urged that all advocates whether senior or junior deserve to be treated equally by the courts and there ought to be no discrimination amongst them even in the matter of dress. He submitted that the Bar Council of India had framed the rules in Chapter IV under Section 49(1)(gg) of the Advocates Act 1961 prescribing the form of dress. The said rule is in the following terms:-

CHAPTER IV

Form of Dresses 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 Advocates Gowns, 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, with 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 Flare (white, black or black striped or grey):

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 Court other than Supreme Court, High Court, District Court, Sessions Court or City Civil Court a black tie may be worn instead of bands."

5. Learned counsel submitted that a perusal of the aforesaid rule would show that dress prescribed to be worn by advocate is a common one. The rule does not prescribe a different dress for a senior advocate, than that for an advocate. Thus there was no justification for a senior advocate to wear a gown different and distinct from the normal gown worn by all other advocates. Learned counsel submits that the wearing of a gown with its overflowing arms, embroidery and frills, places the Senior Advocate at a distinct advantage. He submits that it sub-consciously creates a bias in favor of a senior advocate, which often manifest itself either in terms of accommodation for adjournments, prior hearing or urgent hearing, which senior advocates get from the court as compared to the other advocates. Counsel submits that this creates an impression among the advocates as well as the clients and general public that the senior advocates are superior and get better and favorable treatment from the courts. Counsel argued that justice being epitomized by a blind woman with a scale, is sought to be conveniently forgotten, when a senior counsel is addressing the court. Counsel also urged that the senior advocates in India though not being Queens Counsel emulate them and wear the gown, which the Queen Counsel wear. Mr. Keswani submits that this has been continued as a legacy of the British colonial rule and imperialism. Counsel also urged that the Supreme Court Bar Association had passed a Resolution urging the Government to abrogate and remove the distinction between advocates and senior advocates under the Advocates Act. Counsel also urged that the wearing of different gowns by the seniors could not be justified on the basis of tradition as the rule framed by the Bar Council of India was under the provisions of the Advocates Act 1961, which is of recent origin.

6. Bar Council of India in the counter affidavits filed in response to the writ petitions has averred that there is no cause of action for the petition. There is no legitimate grievance of the petitioners. It is claimed that the Advocates Act makes and recognises a distinction between the senior advocates and other advocates. The rule framed by the Bar Council of India only prescribes the dress, which is to be worn. It does not prescribe the design of the gown or the coat. It is stated that the distinction in the design of the coat and gown of senior advocates has been maintained based on the age old tradition. The said tradition and practice is not opposed to any public policy or law and there was no cause to disturb the same.

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 Section 16 of the Advocates Act 1961 between the senior advocates and advocates. Section 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 a 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 Article 14 of the Constitution of India. The plea of the petitioner that a bias is created in favor 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 the judge is without any supporting evidence or factual foundation and deserves to be outrightly rejected.

8. It may be noted that on almost contemporaneous grounds a challenge had been made to the vires of Section 16 of the Advocates Act in CW No. 1011/2001. The said writ petition had also been argued by the counsel for the petitioner Mr. N.N. Keswani, who had assailed Section 16 of the Advocates Act creating two classes of advocates namely senior advocate and other advocates. A Division Bench of this court dismissed the said writ petition repelling the contention that advocates could not be divided in the two classes namely senior and junior. The court held that conferment of distinction and honour by the court within advocates cannot be assailed as creation of a class within a class violative of Article 14 of the Constitution of India. The Division Bench also repelled the challenge to the system of designation and held that the conferment of designation as a 'Senior Advocate', was based on the collective wisdom of the court and could not be assailed as arbitrary.

9. I find merit in the contention of the respondents that once the distinction between senior advocates and other advocates is recognised under the provisions of the Advocates Act, the wearing of gown or coat by senior advocates with a different design cannot be assailed as discriminatory or violative of Article 14 of the Constitution of India. Simply because the Bar Council of India Rules have not prescribed a different design of the gown or the coat for the Senior Advocates, the same does not warrant or justify a prohibition on the senior advocates from wearing a gown or a coat different from that of the normal advocates as long as the basic dress code is followed. This is especially so since the senior advocates have been following the long-standing practice of wearing a gown or coat similar to that of a Queens Counsel. Queens counsel have also been those advocates, who have been so designated and honoured by the British Courts in recognition of their ability and standing.

Both the writ petitions have no merit and are dismissed.