"You cannot force someone to respect you, but you can refuse to be disrespected", a quote, though by someone unknown, truly encapsulates the natural principle of human tendencies, which, in all circumstances, cannot be so regulated through rules and procedures, as the subjects are products of emotions largely, than of logic. The fluid nature and fine line of distinguishable difference between respect and disrespect, tends to define the relations in personal and professional space, and is no different when it comes to how the learned counsels, public officials and other members of the public, are found addressing the honourable judges in our country. As it is usually said, that the past will define the future, in many ways, India is still being subjected to adopted slavery with the carrying on of the British Courts' undefined and unreasoned practices. It bears no doubt that many countries use titles for addressing the honourable judges in accordance with their customs and traditions. However, the use of the titles viz. 'Your lordship/ladyship' and 'Milord/My Lord' to address the honourable Judges in India, prevent us to give our court system an identity of its own and a sense of belongingness 'WE, THE PEOPLE OF INDIA' desire.
Before, we advert to the real and practical issues concerning the need to have a uniform and pervasive implementation of a localized suited system of addressing the honourable judges in our country, the practice as is presently being found prevalent in twenty five (25) major countries of the world, must be seen, if not studied, to understand the context and issues surrounding therewith, the same being contained herein below, in the form of tabular researched details:
Notably, one can easily relate to, that apart from many other practices, India has inherited courtroom etiquettes from the British. In other words, they are a relic of colonial rule. In the United Kingdom, judges of the Court of Appeals and the High Court are addressed as 'My Lord' or 'My Lady'; Circuit judges as 'Your Honour'; Magistrates as 'Your Worship', or 'Sir' or 'Madam'; and District judges and Tribunal judges as 'Sir' or 'Madam'. Therefore, the genesis of the legality of such use, has been in the long usage of the practice, and being passed on from generation to generation, through learnings of the court craft and procedures.
In the Indian context, where the country's social fabric is interwoven with secularism and equality, if one studies the general parlance, the term 'Lord' is understood in terms of attributing the said title to Deities namely Lord Shiva (Hindus), Lord Jesus (Christians), Rabb/Allah (Lord and Master/God) - [Muslims] and others, and accordingly, the usage does not bear any semblance to any living personality in any manner. The status of faith and divine powers, could not have been so meant to be bestowed upon a living individual or group of individuals, and that too way by a select few, in the course of professional etiquettes, without having a wilful acceptance of the people at large. Such titles are though just 'Honorifics' as a matter of court practice, but may have a tendency to be wrongly understood in its extension or overlap with religious practices and sentiments of any or every community in India. Therefore, the compulsion to address the honourable judges as such, being a part of legacy and unwritten long-standing diktat, was to be shown the guided route in order to bring out a near uniform approach, consistent with the dignity and majesty of the courts and largely, for the justice delivery system as a whole.
The role of the regulator of the legal profession, cannot be forgotten, and has to be valued both in terms of its rule making and supervisory duties towards the implementation of its rules, policies and standards. The Bar Council of India is a statutory body created by Parliament to regulate and represent the Indian bar. The council performs the regulatory function by prescribing standards of professional conduct and etiquette and by exercising disciplinary jurisdiction over the bar. The home page on the official website of the Bar Council of India, displays the description of a page titled as 'Brief History of law in India' as is available at specific web link i.e. http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom/, wherein it is stated that, as extracted in parts: "Law in India has evolved from religious prescription to the current constitutional and legal system we have today, traversing through secular legal systems and the common law. Secular law in India varied widely from region to region and from ruler to ruler. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The Constitution of India is the guiding light in all matters executive, legislative and judicial in the country. It is extensive and aims to be sensitive. The Constitution turned the direction of system originally introduced for perpetuation of colonial and imperial interests in India, firmly in the direction of social welfare. The Constitution explicitly and through judicial interpretation seeks to empower the weakest members of the society. India has an organic law as consequence of common law system. Through judicial pronouncements and legislative action, this has been fine-tuned for Indian conditions. The Indian legal system's move towards a social justice paradigm, though undertook independently, can be seen to mirror the changes in other territories with common law system. From an artifice of the colonial masters, the Indian legal system has evolved as an essential ingredient of the world's largest democracy and a crucial front in the battle to secure constitutional rights for every citizen." (emphasis supplied), and make us to realize the need for localization of the practices and procedures, best aligned to our own people and their needs, in the application of law for dispensation of justice.
In the said direction forward, the Bar Council of India made a serious attempt in the year 2006 post consideration of the observations of the Hon'ble Supreme Court of India in re Progressive & Vigilant Lawyers Forum [W.P. (Civil) 40/2006] that the matter was to be decided by the BCI as how the Judges should be addressed, by exercising its powers under Section 49(1)(c) of the Advocates Act, 1961, and made rules on professional and etiquette standards to be observed by advocates, in so far as it related to addressing the honourable judges in different courts in the country and in furtherance thereof, Chapter IIIA to Part VI of the BCI Rules was added through a resolution by the council. The relevant extract of the said resolution is reproduced herein below, for ready reference:
CHAPTER-IIIA: To address the Court
Consistent with the obligation of the Bar to show a respectful attitude towards the Court and bearing in mind the dignity of Judicial Office, the form of address to be adopted whether in the Supreme Court, High Courts or Subordinate Courts should be as follows: "Your Honour" or "Hon'ble Court" in Supreme Court & High Courts and in the Subordinate Courts and Tribunals it is open to the Lawyers to address the Court as "Sir" or the equivalent word in respective regional languages.
Explanation- As the words "My Lord" and "Your Lordship" are relics of a Colonial past, it is proposed to incorporate the above rule showing respectful attitude to the Court.
The said resolution was circulated vide letter bearing ref. no. STBC (CIR) No.11/2006 dated 20.04.2006 by the Bar Council of India to the Secretaries of all the State Bar Councils and also to the Registrars' of all the High Courts in the country, requesting them to circulate the said resolution to all the Bar Associations in their states, and to others also, in order to give adequate publicity to the said resolution among the lawyers. Subsequent thereof, the same was published in the Gazette of India and officially came into force with effect from 06.05.2006, with its addition as Chapter IIIA in Part VI in the Bar Council of India Rules. But, where is the controversy now when the law is clear, concise and communicated to everyone, and calling out only for compliance?
The answer lies in self-contradictions by the Bar Council of India itself, besides the non-adoption of it by the Hon'ble Courts, and mixed as well as confused fearful compliance by the learned advocates. The losing party in the entire official transaction is a learned advocate, who has been put in a fix, with the continuing incertitude about the use of right title or term. Nobody as it is felt, might be so interested to bring such change in the courtroom, where the use of title, in line with the Bar Council of India's rule, is not prevalent or otherwise encouraged. Although, the Bar Associations of the Kerala High Court and the Punjab & Haryana High Court have issued resolutions in line with the council's rule deprecating the practice of using 'My Lord' and 'Your Lordship', the success might not have come much as intended.
The 2006 rule discouraged the use of 'My Lord' and 'Your Lordship', and prescribed 'Your Honour' or 'Hon'ble Court' as an acceptable way for addressing the Supreme Court & High Courts, and 'Sir' in Subordinate Courts and Tribunals. But, the said distinction too is unnecessary as respect towards and faith reposed in the judicial office cannot be segregated in terms of the jurisdiction exercised, and the real difficulty has been created by our own council by issuing a press release dated 23.02.2021 wherein it has been informed that:
"The BCI would like to clarify that as far as back on 28th September, 2019 on the request made by Office-Bearers of Bar Association of some High Courts with regard to the Advocates addressing the court, it was resolved that as per mostly preferred and prevalent practice, lawyers of the country be requested to address the Hon'ble Judges of various High Courts and Supreme Court as 'My Lord' or 'Your Lordships' or 'Hon'ble Court', while Lawyers of Subordinate Courts, Tribunals and other Forums may address the Court as 'Your Honour' or 'Sir' or the equivalent word in respective regional languages."
However, it is not at all clear if the existing rule has been amended in line with the resolution, which is purportedly being circulated as a press release, as issued by the learned Chairman of the Bar Council of India. Usually, it is found that press releases, on behalf of a public authority, are issued by or in the name of the Secretary of that authority with specific identity number, being its file reference number, along with the date of such issuance, and even the resolution dated 28 September, 2021 as referred in the press release, does not find uploaded on the official website of the Bar Council of India. But in no way, the statutory rule, already notified, could be taken off the statute book, by passing a resolution and that too, without bringing the copy of the original document within the knowledge of the interested and affected stakeholders.
Over to the judicial set-up with much flip-flops and varied approaches being witnessed, in the year 2019, the Hon'ble Rajasthan High Court, in its full court meeting had unanimously resolved to request the counsels and those who appear before the Court to desist from addressing the Hon'ble Judges as 'My Lord' and 'Your Lordship', to honour the mandate of equality enshrined in the Constitution of India. Similarly, many judges including Mr. Justice Ravindra Bhat, Judge, Supreme Court of India, Mr. Justice S. Muralidhar, Chief Justice, Orissa High Court, Mr. Justice Arun Kumar Tyagi, Judge, Punjab & Haryana High Court, Mr. Justice P Krishna Bhat, Judge, Judge Karnataka High Court, have asked, time and again, the learned advocates not to address them as 'lordships'. However, to the other side of the coin, being the judicial side of adjudication of the said issue of addressing the judges, a remark was found made by the then Chief Justice of India, Mr. Justice S. A. Bobde on 13.08.2020 wherein the title 'Your Honour' was held to be inappropriate to be used in the Hon'ble Supreme Court of India, partaking the practice of the court beyond and above the law of the land in force. Similar was the issue in the year 2014, in the matter of Shiv Sagar Tiwari vs Secretary General SCI and Ors. [W.P. (Civil) No. 881/2013], wherein the Hon'ble Supreme Court of India had rejected the petition seeking the ban on the usage of archaic expressions of 'My Lord', your Lordship' and such others to be a symbol of slavery and against the dignity of the country, by terming the same as a 'negative prayer' and stated that the terms 'My Lord' and 'Your Lordship' had never been compulsory.
'Specific Courtroom Compliance' i.e. a courtroom where the use of colonial titles 'My Lord', 'Your Lordship' and such others, is forbidden or discouraged, at the instance of the request made or direction issued by the presiding judge, or otherwise being fearlessly shunned by majority of the learned lawyers, in their own volition as a matter of compliance to the rule framed and notified by the Bar Council of India, has grown out bigger each day, as a general norm in the last fifteen (15) years with few such courtrooms being found as such and there appears to be no change being expected in the offing, and learned advocates who have to uphold the best interests of his or her client, would himself or herself generally restrain from mis-adventuring in such cause for obvious reasons, and yes, these are those practical difficulties being faced with no clear solutions. Be that as it may, the issue is not just about respect or disrespect to the Hon'ble Judges, but it travels beyond it, to our freedom from colonization and in an extended or pure view, a creative thorn to our independence, whether judicial or otherwise.
The identification of the problem and its appropriate description is not sufficient, unless accompanied with a solution. In this issue, simply the acceptance of the rule framed by the Bar Council of India, by all the Hon'ble Judges is the fast forward solution, as to be practiced by the learned lawyers over a period of time, to make it a behavioural pattern in their courtroom exchange. The usage of terms or tiles like "Your Honour" or "Hon'ble Court" or "Hon'ble Bench" or "Hon'ble Sir or Madam" in a respectful manner, which is reflected through body language of the person addressing, as a means of non-verbal communication, is a more appropriate and desirable way of addressing the judges. The same should not be perceived as disrespectful and unconventional and should be left entirely to the discretion of the learned advocates, as respect through compulsion is no respect, whether or not, the same is given or received. It is believed that the council's rule of distinguishing the subordinate courts being the district judiciary, from the High Courts and the Supreme Court, in terms of usage of the titles or terms while addressing the their honourable judges, too should be avoided and necessary amendments be made. Lastly, and at least, a matter before the Hon'ble Court should not get prejudiced only because of the way a learned advocate, being an officer of the court, addresses the honourable presiding judge(s), and practice of law, being a noble profession, should be left to take its own creative and corrective course of action, in the pursuit of justice.
The author, Mohit Kumar Gupta is an advocate at High Court of Delhi and District Courts-Delhi NCR. He can be reached at contact@blackrobeslegal.com for any questions or feedback concerning the write-up. The views expressed herein are personal in nature which do not constitute legal advice as such and is not intended to be understood as solicitation of work.