The coronavirus pandemic which continues to claim thousands of lives across the world has shaken the foundations of practices that have for long been considered to be unimpeachable. The crisis has even forced the Indian judiciary, usually slow to adapt in keeping with changing times, to embrace e-filings and court hearings by way of video conferencing. In perhaps an even more surprising move, the Supreme Court of India has issued a notification on May 13, 2020, suspending the requirement of wearing black robes during virtual hearings before the Supreme Court to contain the spread of COVID-19. The Chief Justice of India said that the decision was taken since the attire may not adhere to containment procedures.
The long black robes, complete with its bell-shaped sleeves, have a history dating back to 1685 when they first began to be worn in their current form by the English judiciary as a symbol of mourning for the death of King Charles II. This garment of mourning which began its journey in Britain then made its way to British colonies around the world where it continues to be used by lawyers and judges even today. With the pandemic forcing the hand of the Indian legal system to adapt, the time is perhaps ripe, if not 70 years too late, to shed the usage of these symbols that are reminiscent of our colonial past.
There is something distinctly "unIndian" (if one can say there is something that is essentially "Indian" to begin with) about the black coats and flowing black robes, not least because of a colour scheme that restricts itself to black and white and a design that remains unsuitable for the tropical climate in most regions of India. To the average Indian litigant entering a High court for the first time, the courtroom with its "Lord" and "Lady" judges would appear more akin to an English play with an Indian cast than an Indian courtroom.
The robe is also much less a symbol of the legal profession today than it was during colonial times with an increasing number of lawyers being engaged in transactional law rather than practising in the courts. One could argue that the purpose served by the robe today, similar to the sometimes intentionally complicated language of the law, is largely a quest for creating a distinction and relevance for itself by a professional class whose survival is dependent on alienating the average litigant from a more direct engagement with the legal system.
Sombre, distinctive and decidedly male, the robes are reminiscent of a more regressive time when women were not allowed to practice the law. While the bar continues to remain a largely male space, even the design of the robe with its padding on the shoulders to accentuate the masculine features of its wearer are designed for a male lawyer. The black coat sits at odds with the kurtas and sarees that women lawyers in India wear, as opposed to their male counterparts who are dressed in more western attire.
Colonisation was a slow process of governing and fashioning a nation called India through the means of an English legal system. Some laws may have changed post Independence, but the lens through which we see the law remains English. One may argue that since we are practising within an English legal system, it is only fitting to dress the part as well. Perhaps, if nothing but for the sake of convenience, a distinction may be drawn between continuing the usage of a system on the foundations of which our republic rests and the continued usage of symbols of a history that was never ours, to begin with. As long as the black coats and gowns remain a reality in the performative space of the law, we continue to pay daily homage to a regressive, bloody and oppressive part of our history.
(Views expressed here are author's own)
Sanjana M is a 2019 graduate of the National Law School of India University, Bengaluru