MAY 13, 2020

By Vijay Kumar

RECENTLY, in the CESTAT, a Member was dictating an order. He dictated, "the learned counsels representing the appellants …." The other Member intervened and said, "the learned counsel…" The first member said, "there are many of them" and he continued his dictation, "the learned counsels…". The other Member again said, "the learned counsel", but the first Member was in no mood to understand that two or more lawyers together are also called counsel, not counsels. The other Member gave up in exasperation. Obviously, the Member who knew this, corrected his brother Member after they retired to their chambers, because finally when the order came, it was, "the learned counsel" and not counsels.

Counsel may be either singular or plural.

Garner's Dictionary of Legal Usage states,

Counsels is sometimes mistakenly used as a plural of counsel-especially when nonlawyers are writing about the law. Part of this tendency comes from the popularization of the phrases independent counsel and general counsel. At the federal level, there are occasionally calls for an independent counsel to be appointed. And if two are needed, the tendency is to say two independent counsels.

But I find that more lawyers and judges use counsels instead of counsel, than nonlawyers.

"The Essentials of English Grammar Composition" says,

Counsel (in the sense of a barrister) has the same form in the singular and the plural. But when it is used in the singular, we have to say counsel instead of a counsel. He has engaged counsel ( not a counsel ) to defend his case. Again, when it is used in the plural, we have to say counsel instead of counsels. He has engaged two counsel (not, counsels) to defend his case. 'The second of our three counsel was the best."

Fowler's Modem English Usage asserts that counsel is a barrister or other legal adviser and the plural is unchanged. As an example, it states, "K. began the defence of his client with public sympathy but under immense difficulties against five prosecuting counsel."

So, it's counsel, not counsels, even if there are many of them. But lawyers and judges use counsels more than anyone else.

The Supreme Court in 2019-TIOL-517-SC-GST heard the learned counsels appearing for the parties.

In 2019-TIOL-495-SC-MISC-CB, the Supreme Court observed,

Learned counsels vehemently placed reliance on the Constituent Assembly Debates..

A nuanced argument was also furthered by petitioners' counsels who highlighted…

Nearly sixty years ago in 2002-TIOL-260-SC-CT-CB, the Supreme Court noted,

These exceptions having been conceded by learned Counsels for the respondent, it is sufficient if attention is confined to the question, 

In F.NO.390/Misc/116/2017-JC, dated October 17, 2018, the CBIC directed the Chief Commissioners that 'Panel Counsels may also be adequately briefed.'

A Budget provision has been explained as, "Provision is for Law Officers, Legal Advisers and Counsels of the Department of Legal Affairs.

A leading tax law firm in its analysis of the 2020 union budget solemnly stated,

There is a lack of coordination among tax authorities in relation to pending tax cases because most of the times, the arguing counsels are not briefed appropriately; Selection of arguing counsels also does not always happen on merits.

Counsels have sneaked into the GST law also. In a recent case, 2020-TIOL-900-HC-DEL-GST, the Delhi High Court observed,

Nevertheless, since the respondents fervently contest the petitions, we permitted the learned counsels to make elaborate submissions as we feel that an authoritative decision is necessary to put the controversy to rest.

The Learned counsels for the petitioners have strongly relied upon the judgement..

During this lockdown, all our counsel are busy with webinars and WhatsApp messages fully sharing their abundant knowledge and I am fortunately invited to many such online affairs by 'senior counsels'.

We are perhaps coming to an end of the strict lockdown period and in the relaxed lockdown ahead, a huge amount of 20 lakh crores of rupees will be pumped into the economy and this will certainly create situations requiring the wise counsel of our large number of highly learned counsel. I hope all the counsel are prepared for this and wiser counsel will prevail.

But what is wrong if two or more lawyers are called counsels and not the illogical counsel? Well, that's how the language has been made, just like the laws! If you want to change it, you can as well do so. Counsel or counsels - what's in a name, what matters is litigation and as long as that is provided in abundant measure, why bother?

Counsel rest.

Until next week