“Milaard aur memberane jury”: The 'Your Honour' controversy

My rather accomplished brother-in-law, the author of several books on Bollywood, called me in a state of confusion. He had just consumed several reports on social media of a law student having been chided by the Chief Justice of India for having addressed India’s First Court judges as “Your Honours”.

“Is it true Indian Judges cannot be addressed as ‘Your Honour’?”, he asked most curiously.

“Only ‘lower’ court judges can be,” I replied, consciously avoiding the politically correct substitute ‘subordinate’ to make it easily understandable.

“Does that mean all the judges we have been seeing in Hindi films are ‘lower court’ judges?” he asked, even more confused.

Years ago, I had penned a piece on how to dress before the courts when a High Court had hauled up a lady officer for appearing in court clad in her jeans. So now it is time to shift the attention from the “dress” to the “address”.

As “lordship” came to Indian shores with the cunning East India Company who sent tea, muslin and spices back to England in exchange for gifting us natives with the English legal system, the British Isles may be a good point from where to begin our inquiry.

Locked in a love-hate relationship in perpetuity, England and France have an interesting connect with why we indeed say “miluds” or “milord” in Courts. It transpires that the French term “millourt” for a nobleman or a rich person, in use by 1430, was actually imported from across the English Channel and was a variant of “my lord”. More than a century later, around 1598, English nobles brought back this term from the wanderings across continental Europe and it gained currency as a general form of reference of English nobility! The judges, who were also part of the House of Lords, naturally stood addressed in the manner nobles of those times were.

Master Jacob of the Grey’s Inn had prepared an interesting note on forms of address of judges in his country. His prefatory note is so refreshingly honest that it merits reproduction in toto.

“History has given us not only the court system, but a bizarre and far from self- evident system of naming judges. Some judges are pompous enough to take umbrage if you get it wrong: certainly, it does not give a judge confidence that you know what you are doing if you get it wrong or depart from convention. You may well think that a judge who takes umbrage over this sort of thing is a silly old...You will be right – but your job is to represent your client so there is no point in annoying the old codger.”

I had taken the liberty to tabulate the rest of his narrative.

By the Constitutional Reform Act, 2005, a Supreme Court of the United Kingdom was established, which displaced the House of Lords. The forms of address of Law Lords seemed to have been continued.

However, ‘address malfunction’ has plagued lawyers and litigants forever. The local Grimsby Telegraph reported that one litigant greeted the Crown Court Judge David Tremburg with “Your Majesty”. Another litigant a few years ago had curtseyed Judge Leslie Hull. Over time, efforts have been made to move away from the conventions of the past. Chief Justice John Murray presided over the Superior Courts Rules Committee to decide that judges would be addressed as “judge” or “the court”, when sitting with more than one judge.

India, upon independence, opted for continuity in matters of the judiciary. HJ Kania and his team effortlessly transitioned from judges of the Federal Court to our Supreme Court. An institution which was inaugurated in the Chamber of Princes chose to continue with the regal traditions the British had superimposed on India’s judicial system. This not only included the costume: robes and bands, but also the mode of address: Your Lordship. As it was years before India would get her first lady justice, the inherent gender contradiction of such an address was the last thing on anybody’s mind.

Over the years, lawyers have internalized the mode of address and, in fact, many have perfected the art of liberally using ‘miluds’ as a breather or for gaining time to think on one’s feet when faced with a question from the court.

Two Delhi High Court judges, Justices Ravindra Bhat and S Muralidhar, took the legal fraternity by storm when their daily cause lists starting carrying a request to the Bar to refrain from the colonial form of address and instead to address the Court as “your honour” or “sir”. Justice K Chandru of the Madras High Court also took similar steps.

This was not the first attempt by a Delhi High Court justice to move the system away from the colonial convention. When a Chief Justices’ Conference was held in 1971, Justice Rajinder Sachar, then a judge of the Delhi High Court, had prevailed upon his erstwhile colleague from the Punjab and Haryana High Court, then Chief Justice of India Sarva Mitra Sikri, to include a discussion on the mode of address of constitutional court justices. The conference resolved that judges should be addressed as “Your Honour”.

The Bar Council of India also stood up and took notice. By a resolution of 2006, it included a chapter, Chapter IIIA, in its Rules titled 'How To address the Court.' It read as follows:

“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 Colonial past, it is proposed to incorporate the above rule showing respectful attitude to the Court."

In 2014 85-year-old lawyer Shiv Sagar Tiwari had his writ petition listed before the Supreme Court. Coincidentally, the bench also included Justice SA Bobde, but was presided by Justice HL Dattu, who would also go on to become Chief Justice of India. The order sheet of January 6, 2014, is terse and does not betray what actually transpired in court. It reads,

“Permission to appear and argue in-person is allowed. The writ petition is dismissed.”

In fact, we learn from contemporaneous reports that the Court was considering Tiwari’s writ petition seeking a ban on the use of “Your Lordship” as being “a relic of colonial era and a sign of slavery”. The matter was first listed before a bench of Chief Justice P Sathashivam and Justice Ranjan Gogoi. When Tiwari made a scandalous allegation that one of his petitions in the Supreme Court had been dismissed because he had not used the honorific “Lordship’, Justice Gogoi recused himself and the case was directed to be listed before another bench.

The Court heavily came down on Tiwari.

“When did we say it is compulsory? You can only call us in a dignified manner. To address the court what do we want? Only a respectable way of addressing. You call us your honour, it is accepted. You call lordship it is accepted. How can this negative prayer be accepted by us? Don’t address us as Lordship. We don’t say anything. We only say address us respectfully. How can we direct the high courts on your prayers? It is obnoxious. It is the choice of the lawyer to address the court. Why should we say that brother judges should not accept being addressed as lordship? We have not taken exception when you call us ‘Sir.’”

Across the Wagha Border, a similar attempt was made in the Lahore High Court only to meet the same fate. In 2012 in Mallik Allah Yar Khan’s Case, the petitioner referred to Presidential Order No 15 of 1980 passed by Zia-ul-Haq which had directed the discontinuation of the use of the expression ‘milord’ in the context of judges. It was also contended that such a term implied conferment of divine status on humans other than the Creator, which was contrary to the State religion. The Court dismissed the petition by referring to various dictionary meanings of the term to conclude that there was nothing ‘godly’ in the term and it was only to refer to the ‘qualities ability, nobility and learning” of the judges[7].

Over the years, individual Chief Justices of High Courts have taken their own initiatives towards decolonisation of India’s justice delivery system. Justice Ravindra Bhat who was one of the two judges who had made the public appeal against “Lordship”, years later as Chief Justice of the Rajasthan High Court. In 2019, in his first Full Court, he ensured a resolution is passed doing away with Lordship and requesting lawyers and litigants move to ‘sir’ and ‘srimanji’.

It’s a different matter that recently, a bar colleague now elevated as a District Judge in Rajasthan, informed me that lawyers in that state still address Courts as “hukum”. Lordship pales in comparison.

Chief Justice TBN Radhakrishnan of the Calcutta High Court, in a letter to subordinate court judges, requested that he be addressed as “sir” instead of “My Lord” or “Lordship”.

Even the Kerala and Punjab & Haryana Bar Associations have issued resolutions calling for shedding the colonial form of address.

When the recent controversy blew up, the irrepressible Manan Kumar Mishra, Chairperson of the Bar Council of India, promptly clarified that the body as far back as on September 28, 2019, had clarified that in a change of heart, it had requested its members to continue the usage of “My Lords”.

My film-buff brother-in-law, in retrospect, needn’t have been so alarmed. After all, the silver screen has been always known for the liberties it has liberally taken with our courts. Haven’t we heard of “my laard and memberane jury” in old Hindi movies depicting jury trials? Didn’t Jolly LLB file a PIL in the Patiala House Court without batting an eyelid?

As the Chief Justice had made a mention of the SCOTUS which permitted the usage of the casual “your honour”, it may be a good idea to conclude with the words of its own Chief Justice John Roberts spoken in his valedictory address to his son’s graduating class. He said:

“Enough advice. I would like to end by reading some important lyrics. I cited the Greek Philosopher Socrates earlier. These are from the great American philosopher Bob Dylan. They’re almost 50 years old. He wrote them for his son.

May you grow up to be righteous

May you grow up to be true

May you always know the truth

And see the lights surrounding you

May you always be courageous.

Stand upright and be strong

And may you be forever young.”

No matter which way this address issue is resolved - honour or milord - let this remain our prayer for our courts as well!