"There is Redemption For Everything": SC Explores The Feasibility Of Restoring Senior Gown To Yatin Oza As An Interim Measure To Monitor His Conduct

The Supreme Court on Tuesday urged the Gujarat High Court to consider the feasibility of restoring the senior gown to Advocate Yatin Oza upon the reopening of the High Court post the summer recess, as an interim measure, to monitor his conduct to decide if the arrangement can be made permanent.

Senior Advocate C. A. Sundaram, for the Gujarat High Court Advocates' Association, advanced,

"Can a statement against the High Court registry be treated as contempt? What can be the extent of criticism? Of course there is no excuse for intemperate language, and I agree that he should apologise. But if the criticism of the registry can be treated as contempt, it is a cause of great concern for us as an association. It negates our own!"

"Nobody says that the Registry cannot be criticised. Everything is about the language. A lot of things can be said in a nice manner", observed Justice S. K. Kaul.

Mr. Sundaram voiced the request of the Association for Oza's unconditional apology to be accepted and for the matter to be dropped.

Senior advocate Dr AM Singhvi, appearing for Oza, clarified at the outset that he was not approaching the matter in an egotistical, technical manner or a narrow sense.

"Your Lordships are entitled to throw away every rule in the rulebook against me. From day one, when I wrote something and received something, even without Your Lordships' prodding, even without any threat, I have unconditionally apologised. It is a different thing that nobody was inclined to accept my apology. I have learnt a lesson. This matter does not need to go further. Even if Your Lordships exculpate me, in these past seven months, I have learnt the lesson of my life", began Dr. Singhvi.

"Arriving at a unanimous decision by a full court is a very difficult thing. If you, by your conduct, have invited this decision by the full court, something must have been done", noted Justice Kaul.

"Like it is said 'Slap. Say 'sorry'. Move on. Slap again', unless someone is an utter fool, considering these seven months of taking away of the gown, the idea of repetition would not even enter his dreams. Theoretically, it may be possible- like we say 'never say never'...We can't wipe out what has already been written. Only an unconditional apology can wipe that out. And this apology is without any prodding! We can't say 'tear off the paper where he gave the press conference'", continued Dr. Singhvi.

"But there are three points – this apology was immediate, at the threshold, it was unconditional and uncontrived. We know how apologies can be artificial. Secondly, he knows that all of us at the bar are helping him so he won't repeat this act. Thirdly, the context must be appreciated. There is obviously no justification. He was under severe pressure and he resigned", advanced Dr. Singhvi.

"If this was the first episode, we could have said that everyone can make a mistake. But such instances have repeatedly happened. We know that all of us are capable of making mistakes. But he is the leader of the bar. What guidance is he giving to his colleagues? The other junior judges learn from the senior judges. Similarly, the younger members of the bar learn from the senior counsel", remarked Justice Kaul.

"Your Lordships know how to take care of such things. The High Court took care of this for seven months. Your Lordships have dealt with contempt on several occasions, but there has never been a blanket, indefinite suspension of the gown" pressed Dr Singhvi.

When Justice Kaul pointed out that this submission may not be right, Dr Singhvi clarified that such an action is rarely taken, and "aberrations apart, a person is generally punished for one month, three months, five months".

"But the matter here was very serious", commented Justice Kaul.

"Your Lordships, please modulate the history of the case. Disproportionality is what attracts the beneficial exercise of the jurisdiction in law. If Your Lordships decide on giving him life again, Your Lordships also know how to keep him on a leash", urged Dr Singhvi.

"If we transverse this path, how should we go about it? How should we make sure that this does not occur again?", asked Justice Kaul.

"Ultimately, these are only words...Your Lordships have the warning, Your Lordships have the leash, and Your Lordships can have the permission in them. If Your Lordships let him have his gown back, in the light of the last seven months, Your Lordships can say that if anything remotely similar happens, there will be consequences which will result automatically. This is the best I can say", suggested Dr Singhvi.

"I also don't believe in the hanging philosophy. But what would be the appropriate 'ankush'? ", asked Justice Kaul.

"A sternly-worded order with these three things (warning, leash and permission). Your Lordships are here to control the leash. I don't think anybody would be that foolish as to repeat the mistake after everything that has happened. If somebody is that foolish, none of us would support him. He has been before this court and has told you so. We have also counselled him. The object is not to deprive him forever, to make him live in ignominy in Gujarat for the rest of his life. There can be automatic consequences in case there is a repetition. Your Lordships' presence here will secure that. This is the apex court of India! Where else will he go?", stressed Dr Singhvi.

Justice Kaul observed that the court needs to perform a balancing act, keeping in mind the sentiments of the High Court.

Senior advocate Arvind Datar, also for Oza, argued,

"Taking away of the senior gown is a veritable kiss of death. His professional career is gone. The gown was taken away in July and he has hardly gone to court in the past nine months. There is no question of him doing it again. The so-called past actions are also not of this nature. He has undergone enough humiliation, I don't know what word to use. The full court held him guilty. The contempt court condemned him with fine and one day's imprisonment. Your Lordships need to respect the sentiments of the judges also. In performing the balancing act, Your Lordships must see that the removal of the gown for nine months is enough punishment"

"Also, what he had done was not even in his individual capacity, but as a representative of the bar. People did not have jobs, advocates were working as Swiggy delivery boys. He had only said that registry is not listing their matters. And this is one issue where investigation has not been done even now ", advanced Mr. Datar.

"Everybody was in difficulty- the judges were in difficulty, the lawyers were in difficulty. You cannot be pointing fingers. It is not fair. These were unusual, unforeseen times", said Justice Kaul.

"Yes, it was foolish for him to say that the High Court is operating as a 'gambling den' in the heat of the moment. But we have to distinguish as to whether it was a remark by an individual advocate for an individual grievance. In that case, the court should come down heavily. Although there is absolutely no excuse for it, we must see that this statement was made with the good of the bar at heart", pressed Mr Datar

"We were also at the bar. You are all senior members of the bar. You know what unbridled communication can do. Sometimes somethings are uttered by the judges also, by the lawyers also. But these things may not always be innocuous", remarked Justice Kaul.

"He was found in contempt and he has been punished. One of the punishments was the removal of the robes. If Your Lordships remit the sentence with conditions, if Your Lordships say that the punishment already undergone would suffice, adding that the remitted portion could not be revived, it could be a way out ", suggested Mr Sundaram.

"What part of the contempt would not disentitle him to the restoration of the gown? What authoritative portion of the judgement would not come in the way of the restoration of the gown? Suppose we don't sentence him to imprisonment and he pays the fine, would it come in the way of the restoration of the gown?", questioned Justice Kaul. The advocates replied in the negative.

"I am not belittling the importance of the gown. For a counsel, it is a death warrant to take away his gown", concurred Justice Kaul.

"Your Lordships may impose only a fine. But rebirth or birth happens after a full pregnancy of nine months. This matter has lasted 7.5 months, I wish to correct Mr. Datar on that. Your Lordships can send the right message to everyone, including the High Court, for the bar on the gown to continue till nine months. I am saying this even without asking him (Oza). This will serve the purpose of future monitoring", suggested Dr Singhvi.

"The court resumes after the summer recess in June. And I can also resume as a senior then", agreed Mr Datar.

When the bench enquired from Advocate Nikhil Goel, appearing for the High Court, as to his views on this suggestion, Mr Goyal said at the outset that "these are not things where the Court should interfere in limiting the period" and that the matter should be fully heard.

"The High Court says that it is a lifetime ban. He seeks to maintain the dignity of the court by limiting this time. Can the gown be restored after the summer recess as an interim measure? We will see how he behaves. We will keep this pending ", ventured Justice Kaul.

"I am burdened to appear against a colleague who I also know well. As a younger member of the bar, in the 2015 proceedings before Justice Mishra, I had heard Dr Singhvi use these words verbatim. At that time, it was 'allegiance to 7, Race Course Road', now he has called the High Court a 'gambling den', he has said that a judge is not capable. They cannot be such trivialisation of the issue. He cannot say that the speech was made in such-and-such circumstances, in unprecedented times, in the heat of the moment and that my apology should be accepted", argued Mr Goel.

Oza's letters to the then-CJI TS Thakur criticising Justices MR Shah (then a judge at the Gujarat high Court, now a sitting SC judge) and KS Jhaveri as owing allegiance to '11, Akbar Road and 7, Race Course Road' had led to contempt action against Oza by the Gujarat High Court in 2016. In appeal, a bench headed by Justice Dipak Misra had accepted his apology, exonerating him from contempt. Dr. Singhvi had represented Oza before the top court.

"Even if the decision of the court of imprisonment until the rising of the court is done away with, the bar under section 24 A of the Advocates Act would apply. If the court has found him guilty of contempt, he cannot practice for two years. In such circumstances, should the High Court honour him as a senior advocate? ", asked Mr. Goel.

"No, not honour him. Is there any provision for restoration of the gown for a limited period of time to see if this arrangement can be made permanent?", explained Justice Kaul.

"There cannot be a probationary or temporary restoration of the gown. This is not the concept of this privilege (of seniority) which Your Lordships grant. The concept has been traced out in the Indira Jaising matter (on the protocol for designation of senior advocates). This course is not permissible. Send him to the High Court to reapply for seniority as per the rules. Or Your Lordships may choose to quash the full court's decision as wrong ", pressed Mr Goel.

"Think about it. We are not doing anything today", said Justice Kaul.

"We grant probation under the Probation of Offenders Act to redeem a person. I agree that this is not a single episode in the heat of the moment. There were many episodes, many writings. But everybody can reform", reflected Justice Kaul.

"I am not saying that this is irredressible. But the redress is to apply to the HC again! By way of an interim order, the gown cannot be re-conferred on him", said Mr/ Goel.

"Privilege is not uniform in its application. Article 142 gives us a little bit of extra something to uphold certain things. The High Court in its wisdom did something which we want to respect. We also have to balance things...", said Justice Kaul.

"There are five very senior members of the bar telling Your Lordships that he has been apologising since day one. This makes Your Lordships feel bound to consider the submission. But I have also been practising for 18 years… ", Mr Goel sought to submit.

"We are used to multiple eminent counsel on one side or the other. It does not influence what we do", remarked Justice Kaul.

"I am not saying this in that manner. But the issue in context of which the request has been made is not small ", pressed Mr Goel.

"I am not saying that it is small. I have no hesitation in saying that it is not small. But redemption is possible for anybody", repeated Justice Kaul.

"We just want to leave this thought with you. Think about it. Would it be feasible? Consider it, if post 'X' period of time, he is permitted to practise as a senior counsel as an interim measure? Discuss about it ", encouraged Justice kaul.

When Mr Datar pointed out that if Mr Goel wants the matter to be heard, he is not averse to it, Justice Kaul remarked, "You will not find a solution there".

Mr Datar clarified that he is not asking for the hearing of the matter as a full-fledged appeal, and Dr Singhvi also added that the modus vivandi for even Mr Goel would be for the person to be on a leash for the future. "The person is wanted to be put on a leash for everything that has happened in the past", commented Justice Kaul.

At this point, Senior Advocate Dushyant Dave intervened to quote the Bible in as much it says 'to err is human, to forgive is divine'.

"He was punished and rightly so. But he has gone through a lot. There has been enough punishment. I'm not trying to defend him, but considering his past, the family that he comes from...his father was the tallest lawyer of our High Court. He was the most principled, the most knowledgeable lawyer, he commanded such respect, he was unparalleled on the civil law.I have seen even the young Oza grow up. He has the good of the institution in his heart but he did not express it properly. Please put a finality to this matter in any manner that Your Lordships see fit. Your Lordships have been at the bar with such successful careers, Your Lordships have been on the bench for a very long time. Please adopt a large hearted approach and put an end to this matter in an appropriate manner. Please give him a last chance", urged Mr. Dave.

"That is the endeavour. There is always redemption for everything. My concern is only the stakes. It must not be misused. That does not help your own parent High Court. Yours is a reasonable suggestion. We are trying to work it out. We have given ideas to Mr Goel. We will also discuss it", assured Justice Kaul.

"The dignity of the lawyer is important. The institution is also important. One sustains the other. We might differ, but the difference of opinion is not a problem", said Justice Kaul, adjourning the matter to March 10.