DRESS CODE FOR ADVOCATES TO APPEAR BEFORE NCLT

[Mr. M. GOVINDARAJAN]

The National Company Law Tribunal (‘NCLT’ for short) and National Company Law Appellate Tribunal (‘NCLAT’ for short) were constituted under the Companies Act, 2013 and the Tribunal started functioning from 01.06.2016 in the place of Company Law Board and Company Law Appellate Board.  The NCLT exercises similar powers as that of the CLB in addition to the powers as conferred under the Insolvency and Bankruptcy Code, 2016         

Vide order dated 14.11.2017 the National Company Law Tribunal (‘NCLT’ for short) directed the Advocates to wear gown in addition  to the existing dress Code while appearing before NCLT. 

In R. RAJESH VERSUS UNION OF INDIA AND OTHERS - 2023 (2) TMI 489 - MADRAS HIGH COURT  decided on 08.02.2023, the petitioner, an Advocate, filed a public interest litigation before the High Court challenging the order of NCLT on 14.11.2017.  The petitioner contended the following before the High Court-

• The impugned order is in direct conflict with the Advocates Act, 1961 and the rules framed under Section 49 (1) (gg) of the Advocates Act, 1961, in particular, the rules pertaining to form of dresses or robes to be worn by Advocates.
• The NCLT, the second respondent invoked the power under Rule 51 of the NCLT Rules, which is exercisable only to regulate the procedures required to administer the Tribunal.
• None of the powers prescribed therein empowers the second respondent to issue the impugned order to regulate the dress code to be worn by the advocates.
• Even assuming such a power exists, the second respondent is statutorily barred from issuing directions to wear a particular dress as it is in conflict with the statutory rules framed by the Bar Council of India in consonance with the Advocates Act and the Rules made there under and therefore, the impugned order has to be set aside.

The petitioner relied on the following judgments to make his case stronger-

• ‘Jose v. State of Kerala’ – 1990 (1) KLT 483 – The Kerala High Court held that the insistence of a particular dress code for Advocates by the Joint Commissioner of Excise, Trivandrum is misconceived and uncalled for.
• EX-CAPT. HARISH UPPAL VERSUS UNION OF INDIA  – 2002 (12) TMI 562 - SUPREME COURT – the Supreme Court held that Section 34 of the Advocates Act gives the High Court the power to frame rules, including rules on which a person (including an advocate) can practice in High Court and Subordinate Courts and such rule framed by the Courts would be valid and binding on every one.
• PRAYAG DAS VERSUS CIVIL JUDGE, BULANDSHAHR AND ORS. - 1973 (3) TMI 151 - ALLAHABAD HIGH COURT, the Allahabad High Court held that the High Court is the appropriate authority to make rules in terms of Section 34 (1) of the Advocates Act and the second respondent has no jurisdiction to pass the impugned order imposing dress code.

In this case the High Court passed an interim order.  Despite this interim order the NCLT issued an order dated 05.11.2018 stating that all the advocates are expected to wear the gown before the Benches of National Company Law Tribunal at New Delhi with effect from 12.11.2018.

Therefore the petitioner issued a notice dated 16.11.2018 to the second respondent requiring the third respondent to withdraw the order dated 05.11.2018 from the NCLT website.  In response to the said notice NCLT withdrew its order dated 05.11.2018 and informed that wearing of gown in discretionary.  The petitioner contended that even though the order dated 05.11.2018 has been withdrawn, the order dated 14.11.2017  is still in force.  The petitioner prayed that the order dated 14.11.2017 was to be set aside by the High Court.

The High Court heard the submissions made by the petitioner and the respondents.  The High Court analyzed the provisions of Advocates Act and Chapter IV of Bar Council of India Rules.  Section 49(1)(gg) of the Advocates Act provides the dress code for Advocate and for lady Advocates.  For Advocates the following dress Code is prescribed-

• A black buttoned up coat, chapkan, achkan, black sherwani and white badns with Advocates’ Gowns.
• A black open breast coat, white shirt, white collar, stiff or soft, and  white bands with Advocates’ Gowns.

In either case wear long trousers (white, black ,striped or grey) Dhoti excluding jeans.  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.

For lady Advocates the following dress code is prescribed-

• Black full sleeve jacket or blouse, white collar stiff or soft, with white bands and Advocates' Gowns.  White blouse, with or without collar, with white bands and with a black open breast coat; Or

• Sarees or long skirts (white or black or any mellow or subdued color without any print or design) or flare (white, balck or black stripped or grey), or Punjabi dress Churidar Kurta or Salwar Kurta with or without dupatta (white or black) or traditional dress with black coat and bands.

That section further provides that wearing of Advocates' gown shall be optional except when appearing in the Supreme Court or in High Courts.  Except in Supreme Court and High Courts during summer wearing of black coat is not mandatory.

The High Court further observed that the mandatory compliance required before the High Courts or Supreme Court has not been prescribed for other forums.  it is only the High Court which has powers to frame rules laying down the conditions for practice, which undoubtedly includes the dress code.

Then the High Court referred to the provisions under the Companies Act and NCLT Rules that have been relied by the Tribunal to issue such instruction.  The High Court further made a distinction between the High Court and the Tribunals with reference to decided case laws.   The High Courts can exercise their powers under Article 226 of the Constitution of India or the supervisory jurisdiction under Article 227 of the Constitution of India over the Tribunals, which exercise judicial or administrative functions.

The High Court held that the impugned order is without jurisdiction and authority, and has no basis in law.  The orders of the Tribunals, either judicial or administrative, are subject to judicial review of the High Courts, as they are subordinate to it.  From the conjoint reading of Section 34 of the Advocates Act and the Bar Council of India Rules, extracted above, it is clear that only the High Courts can frame rules for dress code for the appearance of the Advocates before it, the courts and Tribunals, subordinate to it.  The wearing of ‘gown’ is only optional and not mandatory before any courts other than the Supreme Court or the High Courts. Therefore, the impugned proceedings in file No. 25/02/2017 dated 14.11.2017 is without authority and is illegal.

The High Court further observed that in the meanwhile the NLCT came with the proceedings dated 27.01.2023 has been issued by the NCLT, by which, the order impugned herein has been modified, with the effect of superseding the earlier instruction with regard to dress code for advocates, and the present order merely follows the Bar Council of India Rules.  However, the impugned order, though withdrawn, will stand Quashed by the High Court.