IN October 1937, a new court was set up in British India, the Federal Court, which eventually became the Supreme Court of India. Until that time, there used to be only Provincial High Courts whose judgments could be appealed before the Privy Council in London. Three judges—a Briton, a Muslim and a Hindu—were sworn in as the first federal judges of British India. In the months leading up to their swearing-in ceremony, however, these judges exchanged some very peculiar correspondence about their new judicial office in Delhi. Rather than writing to one another about their new responsibilities on the Federal Court or about its docket, they focussed almost exclusively on the clothes they were going to wear in court and how their appearance would impact their authority.
It all began when the Briton, Maurice Linford Gwyer, wrote a long letter to his two future colleagues on the court, in July 1937, three months before the swearing-in ceremony. Gwyer, an accomplished lawyer in London, had helped draft the new Government of India Act and was going to be the Chief Justice of the Federal Court. In fact, the post of Chief Justice on important courts in British India was always reserved for a British barrister, like Gwyer. In his letter, Gwyer asked his colleagues to think about the clothes they were going to wear in court, and to “concentrate on (1) our day to day robes, and (2) our ceremonial robes”.
Gwyer proposed that the Federal Court judges wear different day-to-day robes from the ones ordinarily worn by High Court judges in India. He wanted the judges of his court to wear a grey robe, not a black one. He said that the grey robe had “the following merits: It strikes out a new line, as befits a new Court, but it is based on the robes of tradition; and it would be very cool and comfortable, because… it is a very loose garment… and lastly, it would, so far as I can judge, weigh less than a black gown worn (as it would have to be) with a coat and waistcoat.”
As for the ceremonial robes, Gwyer wanted to change those as well. At important functions in Britain, high-ranking judges such as the Master of the Rolls and the Lords Justices of the Court of Appeal wore black-and-gold robes. Officials like the Lord Chancellor, the Speaker, and the Chancellors of the universities of Oxford and Cambridge also wore them. Some officials in India, like the President of the Council of State (the Upper House of the central parliamentary body of British India) also wore them at important ceremonies.
Gwyer did not favour these black-and-gold robes for the Federal Court judges. He wrote in his letter: “The robe is made of heavy black damask and the gold lace and ornaments are also heavy, the total weight being 9 ½ lbs without a train and 11 ½ lbs with a train. This robe undoubtedly has a handsome and dignified appearance and a long tradition behind it; but it is certainly very heavy, and it is not only a little unsuitable for hot weather, but it looks hot.” Instead, Gwyer proposed that the judges wear grey and silver ceremonial robes. However, Gwyer was worried that it might be felt “that the Federal Court, by wearing a gown decorated with silver, deliberately put themselves on a lower plane than those persons who have the right to wear a black gown decorated with gold”.
Gwyer enclosed a few sketches and photographs of the gowns he had in mind in his letter, and asked his colleagues to reply to him as soon as they could, “by air mail if possible”, because “Messrs. Ede and Ravenscroft”, the famous high-end London tailors and ceremonial robe-makers, would have to be given “four to six weeks” to make the new robes.
Sir Shah Muhammad Sulaiman, the Chief Justice of the High Court of Allahabad, responded first. During the British Raj, the Federal Court’s three seats were distributed by religion/race: the post of Chief Justice was reserved for a Briton, and one seat each was reserved for a Hindu judge and a Muslim judge. Sulaiman was one of the few Indian judges to have held the post of Chief Justice of a High Court in British India. He was therefore a great choice for the Muslim seat on the Federal Court. He sent a long letter to his colleagues by airmail on July 15, 1937, and rejected every one of Gwyer’s suggestions. By wearing black day-to-day robes instead of Gwyer’s grey robes, he argued, the Federal Court’s judges would be equating themselves with judges of the Court of Appeal in England, which would send an important signal to the legal community in India.
“As the Federal Court would approximate most nearly to the Court of Appeal,” he wrote, “the adoption of their black gown is likely to be well appreciated here.” There were also practical reasons for choosing a black robe instead of a grey one. Day-to-day robes get worn out easily, and it would be far easier to get new black robes from tailors in India than to get robes in a shade of grey.
As for the ceremonial robes, Sulaiman admitted to harbouring “a prejudice in preferring tradition to invention”. He also felt, as Gwyer had feared, that if the Federal Court’s judges were to wear silver ornaments instead of gold ones, that would send the wrong signal in India, where gold has a strikingly superior cultural significance over silver. “I strongly feel,” he wrote, “that our choice of silver in place of gold would be misunderstood in India, and the general impression would be one of marked inferiority to those wearing gold. I am, therefore, strongly of opinion that, even if we adopt grey instead of black, the ornaments should be in gold and not in silver, particularly as they would cost about the same, even though the robes may not look as handsome as grey and silver…. As the ceremonial dress is worn only on rare occasions and mostly in winter, its weight should not be any material consideration.”
The third judge of the Federal Court, a prominent Hindu lawyer-politician in Bombay, Mukund Ramrao Jayakar, wrote to Sulaiman soon thereafter, on July 17, 1937. Jayakar agreed with Sulaiman that they should stick to wearing black-and-gold ceremonial robes “in the traditional style which has long been connected with legal dignity and eminence in England”. However, where it came to the day-to-day robes, Jayakar accepted Gwyer’s “preference for the grey colour”, adding that he “would personally prefer a loose and roomy garment which would be found useful in hot weather also”. Jayakar acknowledged that there was “considerable force” in Sulaiman’s “comments in favour of the black colour for the day-to-day robe”.
The matter was settled by the end of the month when Gwyer wrote to Jayakar, on July 29, 1937. In the letter, he conceded his defeat to Sulaiman on the question of the robes. “I cannot press my own suggestion of a grey robe,” he wrote, “unless you feel very strongly on the matter. There is certainly something to be said for adopting the day to day costume of the English Court of Appeal, and you will be able to form a better judgment than I can of what our colleague says with regard to the ease and comfort of the two costumes respectively. With regard to ceremonial robes, it is plain that these must be the black and gold ceremonial robes worn by the Court of Appeal.” Gwyer then focussed on what the judges should wear inside their robes and concluded by instructing Jayakar to wear a “cloth court costume” instead of a velvet suit.
The judges were sworn in on October 1, 1937, at the Viceregal Lodge in Simla. Their attire did not go unnoticed. In fact, The Times of India dedicated an entire section of its report on the swearing-in ceremony to the judges’ robes. The reporter wrote: “All were in their handsome Judge’s robes. Each wore his wig, his Judge’s black suit with knee breeches, silk stockings and polished buckled shoes; and over these full rich robes of black silk lavishly embroidered with gold.” The court held its first session a few months later, in December 1937, where the judges wore their previously discussed ceremonial dress. A correspondent from The New York Times who covered the event noticed and mentioned in his report the judges’ “black and gold gowns”.
A little politicking
To be sure, the new Federal Court’s judges were not only talking about clothes in the months leading up to the swearing-in ceremony. One of the court’s judges, Jayakar, was beginning to think ambitiously ahead. What would happen, he thought, if Gwyer ceased to be the Chief Justice for some reason. Would Jayakar become the Federal Court’s new Chief Justice or would the post go to his colleague Sulaiman? On July 26, 1937, Jayakar wrote a confidential letter to Gwyer, in which he explained why he ought to be considered the senior judge, entitled to the Chief Justice’s post, over Sulaiman. “This letter is intended to give you a few relevant facts of which you may be ignorant,” Jayakar wrote. Jayakar explained that he had been practising law much longer than Sulaiman, that he had been called to the Bar in England in 1905, and that he had spent a year and a half in the chambers of Mark Romer, who by then was Lord Justice of the Court of Appeal.
Jayakar explained that he had been offered a puisne judgeship on the Bombay High Court on two occasions, but that he had declined both times. According to Jayakar, had he accepted the judgeship offer on the Bombay High Court, he might even have become the Chief Justice of that court. In short, Jayakar explained to Gwyer that the mere fact that Sulaiman was the Chief Justice of the Allahabad High Court should not work to give Sulaiman seniority over Jayakar. “I would therefore urge,” he wrote, “that my omission to hold any office should not make any difference in the consideration of this question of seniority which should be regulated by the date of call [to the Bar] which in my case is as old as 1905.”
Gwyer responded to Jayakar on August 3, 1937. In his letter, Gwyer rejected Jayakar’s claim to seniority over Sulaiman. “I have given a good deal of consideration to the question which you raised, and I fully appreciate your arguments,” he wrote. “Nevertheless, it seems to me that a Federal Court Judge who has in fact sat on the Bench before, and indeed has been the Chief Justice of a High Court, takes precedence over a Judge who is assuming judicial office for the first time.”
Interestingly, Gwyer gently chided Jayakar for bringing this issue up, because he did not want his court to be torn asunder by competitive politics among judges, before it had even had its first sitting: “May I add one thing?” Gwyer wrote. “I am so anxious that the Federal Court should be a success, and that it should be, as it were, an object lesson in unity to the rest of India, that it would distress me very much if I thought that there were any want of harmony between any of us, however trifling and however caused.”
Diplomatically, Gwyer added: “I have known you long enough to appreciate the breadth of your views and the unselfishness of your character; I know that the public interest has been the principal motive which has inspired you throughout your career; and I rejoice no less to think that the Federal Bench is to be adorned by your presence than that I am to sit with you on it as your colleague.”
As it turned out, this issue soon became moot, as Jayakar was promoted to the Privy Council in January 1939, and Sulaiman died in office in 1941. Accordingly, when Gwyer’s term as Chief Justice of the Federal Court came to an end in 1943, neither Jayakar nor Sulaiman was on the Federal Court. Further, Gwyer was replaced, much to his anger, by another British barrister from London, William Patrick Spens, not by one of the other judges of the Federal Court at the time.
Perhaps the most interesting and fitting end to this story is that when Jayakar left for the Privy Council, he left his Federal Court robes behind with Chief Justice Gwyer and asked Gwyer to sell them to Jayakar’s successor on the court. On January 26, 1939, Gwyer wrote to Jayakar: “I note what you say about both your robes. I will keep them in safe custody until your successor is appointed and I will make the best bargain I can with him for their transfer.” Jayakar was succeeded by Srinivasa Varadachariar, a High Court judge from Madras, and the correspondence between Jayakar and Varadachariar that following month suggests that Varadachariar might have, in fact, bought Jayakar’s Federal Court robes.
Abhinav Chandrachud is an advocate at the Bombay High Court.