COURT ATTIRE : HISTORY, MYTH AND LAW

(Jacob P. Alex, Advocate, High Court of Kerala)

We see Judges and Advocates wearing black robes an bands but seldom do we ask why. This paper explores the history, myth and law behind the unusual attire by which the legal profession adorns itself today.

Story  of  the  Gown:

Wearing the gown in its present shape is most certainly a legacy of colonialism¹ and the reasons behind it can be learned only by tracing the origin of the British practice of wearing it.

Long robe was counted as a symbol of nobility in all early civilizations especially Roman and Greek. Most of the early illustrations of kings, priests and learned men are with long robes of one kind or other. In olden days, administration and religion were in the hands of these nobles who considered themselves superior to common men. The dignity and distinction of these noble men were maintained, among other things, by wearing separate attire. Gowns of various fashions were worn by them for this purpose. Matters pertaining to the law or administration of justice were originally handled either by kings or by the clergy. By virtue of their nobility they used to wear long gowns. Historically, Judges used to be members of the upper echelons of nobility, since they were the people considered capable of making sound decisions. As such, naturally they always wore the fanciest possible clothes to show off their status.

In one of the earliest illustrations of barristers, Judicium Essoniorum - a thirteenth century legal treatise, they are depicted wearing the tunica, a plain sleeved ankle-length fur coat, closed at the front.² In the centuries that follow, examples of this peculiar garment can be seen specifically in relation to the legal profession. The Whaddon Hall illuminations (so-called because they were found at Whaddon Hall, Buckinghamshire) vividly reveal barrister’s belted tunica as party-coloured in blue and-mustard and green-and-blue with diagonal stripes.³ During early days, barristers’ robes were party-coloured - that is, divided vertically and of two different colours; and one of the colours is usually rayed -that is, made of cloth of one colour with contrasting parallel lines or rays, through the cloth, of another colour. The current costume of Commonwealth Judges was more or less established by the time of Edward III (1327-77) and was based on the correct dress for attending the royal court⁴. The material for these robes was originally given to Judges as a grant from the Crown, and included ermine and taffeta or silk. The colours were violet for winter, scarlet for autumn and green for summer. Red was reserved for special occasions.

In the early Tudor period (1485-1603) the long robe that closed at the front came to be replaced in general fashion by a long open gown, and monumental brasses from the period reveal that barristers followed this fashion. In the same period, the vivid colours of the barristers’ party-coloured and rayed robes were replaced by more somber, muted ones as documented in the two Wills of Readers of the Middle Temple⁵. It is also to be noted that there were account to the effect that wearing a gown was treated as “foolish pride” and lawyers were cautioned not to wear it⁶. But there are costume historians7 who opined that ‘only requirement during these days for barrister’s dress is sobriety’. From 1531 onwards a number of regulations were issued to members of all the four Inns of Court to this effect⁸. This is considered to be the first ‘rules’ that prescribed uniform for barristers. In 1557, for example, it was agreed by all the Inns that ‘none of the companions, except knights or benchers, should wear in their doublets or hose any light colours, except scarlet and crimson, nor wear any upper velvet cap, or any scarf, or wings, i.e. folds of cloth on the sleeves, in their gowns’. In the same year there was a regulation against cloaks (veil or cover) so that gowns were encouraged, and between 1580 and 1600, it was ordered to be worn.⁹ However, by the sixteenth century lawyers were required to wear gowns in accordance with the regulations of the Inns of Court where they studied.¹⁰ In this context it is relevant to mention that during these times, black gowns were not in use.

Lawyers  are  still  mourning!  History  of  the  Black  Gown:

In most countries Judges and lawyers wear black, or at the very least garments with some black trim or lining. It may be noted that black colour is identified with death, sadness and mourning. This tradition of wearing black gown is said to have begun in 17th Century England. In 1685 all Judges in the British Empire attended the funeral of King Charles II dressed in black robes as a sign of mourning.¹¹ (Ancient British custom demanded mourning for years together the death of Kings/Queens. During this mourning period, the subjects were expected to wear black costumes as mark of respect to the departed ruler.) Mourning the death of King Charles II continued on account of the deaths of Queen Mary in 1694 and of Queen Anne in 1714. The official period of mourning thus lasted many years and overlapped with much of Britain’s colonial adventures in other countries. Since the Law Lords/Judges were officially mourning, they continued to wear the black gown. The black robe tradition spread around the world and still persists today. Since then, the practice of wearing of black gown was retained, despite early opposition. The Judges in many ex-British colonies however have never bothered to change their costumes. Even after gaining independence, the practices of wearing mourning robe in Court continued though it has nothing to do with tradition.

Folded  piece  of  cloth  on  the  back  of  Gown:

The piece of cloth, ‘the shape of which is not easy to describe in words nor easy to draw clearly’¹², and hangs on the left back side of a gown also has an interesting historical connection. One of the most enduring theories is that it represents a convenient purse or bag. Historically, barristers never technically accepted explicit payment for their work (so the theory goes). Since their fee was honoraria, their clients were free to clandestinely slip money into the purse carried on their gowns, literally behind their back, ‘without ruffling the susceptibilities or offending the dignity of the learned counselor.¹³ Another theory says that performance of lawyer in court depends upon the constant ‘filling’ of back pocket by the client. In Shakespeare’s ‘Troilus and Cressida’ Ulyss says “Time hath, my lord, a wallet at his back, wherein he puts alms for oblivion...” (Act III Scene 6) shows that the theory of pouring coins in pocket extents to the realm of literary criticism too. Some says that the strip is having some connection with mourning dress¹⁴.

Wisdom  behind  the  bands

Bands are a form of formal neckwear worn by clergy and lawyers¹⁵ (two strips of linen about 5" by 1" hanging down the front of the neck). They take the form of two oblong pieces of cloth, usually white, which are tied to the neck. The word “Bands’ usually referred in plural because it requires two similar parts and did not come as one piece of cloth. The exact origins of bands is obscure but some have speculated that it represent the twin tablets of the Ten Commandments that were carried by Moses. In the Bible it is stated that ‘when Moses came down from Mount Sinai with the two tablets of Testimony in his hands, he was not aware that his face was radiant because he had spoken to Lord’ (Exodus 34: 29). Words of wisdom were inscribed in the twin tablets and in order to symbolize this wisdom, bands are used - so goes the myth. Bands are considered to be a symbol of wisdom.¹⁶

Bands were adopted in England for legal, official, ecclesiastic and academic use in the mid-seventeenth century.¹⁷ Bands did not become academically significant until they were abandoned as an ordinary lay fashion after the Restoration in 1660. They were identified as specifically applicable to clerical, legal and academic individuals in the early eighteenth century, when they became longer and narrower in form.¹⁸ From the eighteenth century Judges and barristers took to wearing lace jabots instead of bands at courts. They continued in ecclesiastic use well into the nineteenth century in the smaller, linen strip or tab form- short-bands¹⁹. These were retained by Church of England ministers, academics, and non-conformist ministers till comparatively recently.²⁰ Members of legal profession are continuing with the tradition of wearing bands.

Law  that  mandates  Uniform  for  Advocates

An ‘advocate’ as defined in S. 2(1)(a) of the Advocates Act, 1961 (the Act) has to confirm to regulations in the matter of robes. S.34 of the Act enables the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and in the courts subordinate thereto. The High Court of Kerala has, in exercise of the powers vested in it under S.34, framed rules as early as on 10-07-1969.²¹ R.12 of these Rules prescribes the dress to be worn by advocates. Similarly S. 49(1)(gg) of the Act, permits the Bar Council of India to frame rules regarding the uniform of lawyers. Exercising powers under this section, the Bar Council prescribed the relevant Rule as follows:

                       "Form of Dress or Robes to be Worn by Advocates

                       (Rule under S. 49 (1) (GG) of the Advocates Act, 1961)

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 shirt, 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.”

Rules framed by the Kerala High Court as well as the Bar Council of India are similar with regard to male advocates and in case of lady advocates it varies very minutely. It is in compliance with these rules that advocates today are wearing the dress they do. Thus, it is clear that the present uniform worn by advocates is based on the law laid down by the Act. As is evident from the historical evolution of the attire worn by the legal profession, this law is a crystallization of the custom and practices that have evolved over the past many years.

Anecdote: The rules framed under Ss.34 and 49(1)(gg) of the Act, prescribe the same uniform for all the advocates irrespective of whether they are designated Senior Advocates or other advocates. In spite of it Senior Advocates wear special type of gown known as Queen Counsel’s (QC) or King Counsel’s (KC) gown - ie; silk gown with a flap collar and long closed sleeves (the arm opening is half-way up the sleeve) along with the QC/KC black coat, known as a court coat - a cut like 18th-century court dress, and the sleeve of the QC/KC court coat or bar jacket has a turn-back cuff with three buttons across. Wearing QC/KC attire is a special British tradition. It is interesting to note that there is no rule or law that prescribes the wearing of the QC/KC attire for designated Senior Advocates in India. At best, the explanation could be that it is a custom that is being followed in England. In the light of rules framed under the Act which prescribed the uniform for all advocates without giving any exemption to Senior Advocates, is it appropriate to wear separate attire citing a long standing British tradition / custom that are no longer applicable in India?²² This question assumes more significance in the light of pronouncements from Supreme Court to the effect that ‘no custom can prevail over law’.²³Any how, author wish to leave this question open.

Need  to  follow  the  legalized  custom

“Through tatter’d clothes small vices do appear: Robes and furr’d gowns, hide all”

William Shakespeare. King Lear; Act IV Scene 6

Court dress definitely inspires respect for the law and its practitioners. It adds to the solemnity of the profession. ‘An advocate’s robe is steeped in tradition and has a class of distinction. It is worn when one practices as an advocate, not before he is borne in that profession or after he ceases to practice. It is not a casual wear. It is for serious occasion. Outside court, it has no place; it shall have none. Inside court, it represents cause; the cause of client. When there is no counsel, there is no robe’.²⁴ It is for this reason that Advocates appearing in personal capacities were not allowed to argue in robes²⁵ . Justice can best be administered when legal proceedings are conducted with decorum and a certain degree of formality. ‘The place of justice’ as Francis Bacon remarked, ‘is a hallowed place’ and those seeking its aid either for themselves or those whom they represent should so conduct themselves as to uphold its dignity. The trappings of a court room and the costume specially meant for court and its officers invest the Court with a sort of dignity which is not without its effect. The traditional prescribed dress of an Advocate gives him certain aloofness wherefrom his submissions come with added force.²⁶

From a purely practical point of view, robes are great levelers so far as the Bar is concerned. In robes, the most poverty-stricken junior will not be put out of place by a fashionable opponent. Because everyone looks the same, there can be no discrimination based on clothing. It is also a permanent reminder of professional discipline (though not a guarantee of good behavior it is a great aid to it) and a constant reminder of the nobility of profession. It also provides some anonymity. The robes speak of continuity of development and responsibility. ‘In the first place they distinguish an Advocate from a litigant. In the second place it induces a seriousness of purpose and sense of decorum, conducive to the dispensation of justice’²⁷ If the rule is relaxed, in all probability, it will precipitate sartorial inelegance and judicial indecorum. It is also not unlikely that in which event Advocates may start to dress more scantily and even indiscreetly.²⁸ After all, “dress”, according to A G Gardener, “has its spiritual and moral reactions. It may seem absurd, but it is true that we are in a real sense the creatures of our clothes”.

Foot Note :

1.  “...In England, earlier and now, a person appearing as an attorney in a court has a special place and a special robe. The same was adopted in India...” Jose v. Nandakumar(1993 (2) KLT 342 para. 10).

2.  See Generally “Legal Habits: A Brief Sartorial History of Wig, Robe and Gown”Published by Ede and Ravenscroft.

3.  Ibid.

4.   In his summary of the history of judicial attire, US Law Professor, Charles Yablon, also dates the judicial robe and barrister’s gown back to the time of Edward III (1327-77) when the fur and silk-lined robes were the mark of high judicial office.

5. Robert Pynkney’s will, dated 20 May, 1508 and that of Thomas Jubbes’s, dated 3July 1528.

6.   Secondary Kempe of the King’s Bench noted in 1602:. . . in tymes past the counsellors wore gowns faced with satten, and some with yellowe cotten, and the benchers with jennet furre; now they are come to that pride and fanstasticknes that every one must have a velvet face, and some soe tricked with lace that Justice Wray (Christopher Wray, 1524-92) in his tyme spake to such an odd counsellor in this manner ... ‘Get you from the barre, or I will put you from the barr for your folish pride.’

7.   Prof. J H Baker; see supra 2.

8.   Supra 2.

9.   Ibid.

10. Ibid.

11.   See the entry dated 30 October 1697 in A Brief Historical Relation of State Affairs from September 1678 to April 1714 (printed 1854) compiled by Narcissus Luttrell (1657-1732) and also the manuscript account of the mourning followed the death of Charles II by the antiquary James Wright (1643-1713), who became a barrister in the Middle Temple in 1675.

12 .  Per Prof. JH Backer.

13.   See Supra2.

14.   See generally Ibid

15.   See <http//en.wikipedia.org/wiki/Bands>. Bands worn by clergy are often called preaching bands, tabs or Geneva bands; those worn by lawyers are called barrister’s bands.

16.   The same collar is worn by high-ranking clergy within the Anglican church. Therefore it could be presumed that it clearly has some form of religious origins.

17.   See generally Supra 15

18.   Ibid.

19.   Mayo, Janet, A History of Ecclesiastical Dress (Holmes & Meier Publishers, New York, 1984)

20. See Generally Hargreaves-Mawdsley, WN, A History of Legal Dress in Europe until theend of the Eighteenth Century (Clarendon Press. Oxford, 1963) and Cunnington, C Willett & Phillis, Handbook of English Costume in the 17th Century (3rd ed Faber & Faber, London, 1972, first published 1955).

21.   Jose v. State of Kerala(1990 (1) KLT 483).

22.   K.L. Rathee “Parody of Justice” Dress of Advocates Appearing in Courts of Higher Judiciary Aping of British Colonial System Continued, Indian Rules Ignored With Impunity (2004) PL WebJour 5.

23.   See N.Adithyan v. Travancore Devaswom Board (2002 (3) KLT 615 (SC).

24.   Muraleedharan Nair v. Antoney (1985 KLT 1).

25.   SeeGenerally: Smt Vidya Varma v. Dr. Shiv Narain Varma ( AIR 1956 SC 108), T.Venkanna v. The Hon’ble High Court of Mysore, (AIR 1973 Mysore 127).  R v. Evans (1961 (1) All. ER 319).

26.   Prayag Das v. Civil Judge (AIR 1974 All. 133 para. 17)

27.   Ibidpara. 18

28.  Ibid.