"You Have To Re-establish Your Credibility With Your Own Court, We Will Keep The Contempt Hanging On Your Head":Supreme Court To Adv Yatin Oza

"We will also give value to the High Court. We assure you that there will be no judicial review after that. We won't do that...Take it from us. We will agree with the view of the High Court. If he is given this second chance, we will watch his every move. He cannot afford to mess around. We also want to protect the institution of the High Court", said Justice Kaul.

Mr. Goel agreed to put this suggested course of action to the High Court.

"We will keep the contempt hanging on your head. We will also keep this (withdrawal of the gown) hanging on your head. We will not dispose off either. We will look at how you conduct yourself in this period. Our impression is that you have said sorry earlier also. The gentleman has to learn. How can you be such a freewheeling person, when you have so much responsibility, so much recognition and so much going on for yourself? How can you sacrifice all this by being unmindful?", Justice Kaul directed at the senior counsel representing Mr. Oza.

"A mere apology does not condone everything that has been done. The only issue is to what extent should we go- should you get another chance is the issue. 100 mistakes have already gone by! This was your 101st utterance!", remarked the judge.

"You have to meet the needs of the bar but you have to be aware that you have youngsters following you. If you transverse a wrong path, they will also transverse that path after you. You have done something completely unacceptable, to say the least. You have erred very, very grievously on the first chance given to you (the Supreme Court in 2016 had granted relief to Mr. Oza against the contempt action initiated by the Gujarat High Court over a letter written by him to the CJI against 2 sitting HC judges)", Justice Kaul had expressed.

"Look at your press conference, the act of circulating letters, the WhatsApp messages saying that you have spoken to the CJI and two other collegium judges. You are basically trying to say 'I have access to the Supreme Court, do what you want and I will still get it done'! This is an indefensible action. I am not saying that you are not entitled to raise an issue before the concerned authorities. You could have written a confidential letter to the Chief Justice of India. He has his own mechanism of verifying its veracity. But you went around tom-tomming about it before the media as if you were some super-power! Whatever may have been the cause behind them, what utterances made by you at the press conference can you justify?", continued the judge.

Objecting to the use of the understated expression "bad words" in respect of these utterances by senior advocate A. M. Singhvi, for Mr. Oza, Justice Kaul remarked, "Even if you have apologised unconditionally, this is in the background of the relief that were granted by the Supreme Court earlier (in 2016). After committing a murder, you cannot say 'I apologise'. You are not just writing to the Chief Justice, you are opening up about it in the press, you are defaming the system! You are not blaming just one judge but damaging the whole institution! On reading these utterances, this petition could have been thrown out summarily. It is out of deference (to the senior counsel representing Mr. Oza) that we are listening. Is this even capable of apology? With your experience, neither you (Dr. Singhvi) nor Mr. Datar (senior counsel Arvind Datar) can defend it. It is just that somewhere there is still some sympathy factor"

During the course of the hearing, Mr. Oza himself had sought the permission of the bench to make a brief submission- "Previously, at the outset itself, I had used an adjective against myself. Your Lordships are right that there has to be a connectivity between the tongue and the mind which got lost in my case. And not just once, but twice or thrice. I have understood, I have realised and I assure Your Lordships that there will be no next time. If there is, whatever action is deemed fit by the High Court may be taken. What happened last year was out of complete frustration. But I am not justifying it. Such language could not have been used. I have categorically stated that I have said nothing against the High Court judges. In fact these judges are working overtime to ensure justice to the people!"

"You have said that the High Court judges are corrupt. Then you say that you did not say anything", pointed out Justice Kaul.

"I have absolutely no excuse. What I did was unpardonable. I am obliged for Your Lordships' grace. I am short of words to express this ", pleaded Mr Oza.

"You have to re-establish your credibility with your own court. You should concentrate on your ability in the law and address them in such manner. You don't need to confront them. You do not get relief by confrontation, but by persuasion", articulated Justice Kaul.

Justice R Subhash Reddy, having been the Chief Justice of the Gujarat High Court, also added, "Hearing you on several occasions, I wondered that you have been gifted with so much legal acumen by God, so why would you lose your temper which results in complaints against you day in and day out?"

"With folded hands, I say that never ever will this happen again. I would rather quit my practice than let this happen again", said Mr Oza.

"You have argued so many matters, you have so much knowledge, why do you do this? It is said that when one has neither the facts nor the law on their side, it then when one resorts to this. But you have both the facts and the law on your side. So why do you do this", asked Justice Kaul.

"It is probably out of my uncontrolled impulsiveness and over sensitivity. It is a weakness but I have overcome it completely. What can I say other than tendering an apology. I have learnt the lesson of my life. This will not happen again. I don't even want to be the President of the Bar Association. As soon as this gets over, I will resign. Individually, there is no problem. I am sure that it cannot and will not happen again. Please take the kindest of approach possible ", prayed Mr Oza.

"How can it be that when you become President, all objectivity is lost? ", commented Justice Kaul.

It may be noted that last week, the Supreme Court had 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. On Wednesday, Mr Goel intimated the bench that he himself has thought this over, discussed it and put it in writing to the High Court and the judges have also discussed the same proposition among themselves and come to the conclusion that it is not acceptable to them.

"Yes, there was a lot of misconduct. His behaviour left much to be desired. But it is being said that he has reformed. We will have to see that. If he presses only for the waiver of sentence (of 1 day's imprisonment; imposed by the HC on finding him guilty of criminal contempt) and we do so, then how would it come in the way of consideration of the period for which his designation has been withdrawn? Can we limit the period for which his gown has been withdrawn? We can hold the ban to be for an 'X' period of time and then permit him to practise as a senior counsel as a peremptory measure. Then we will see his conduct as to whether it can be made permanent or has to be withdrawn again", Justice Kaul put to Mr Goel on Wednesday.

"As per Your Lordships' own judgement in Mahipal Singh, when an advocate is convicted of criminal contempt and continues to remain so, he will be barred from practising as an advocate for two years. This is by way of section 24A of the Advocates Act. So can he practise at all, let alone as a senior advocate? Also, there is no life ban or suspension of his license. Seniority is a privilege which is conferred by the court before which an advocate is practising, as has been canvassed in Indira Jaising's case. It cannot be like he is not fit to be a senior for 20 years and then suddenly becomes fit", argued Mr Goel.

"Any court which confers this privilege can withdraw it also. But the court found him to be fit to be a senior advocate for 20 years. There may have been some aberrations, some temperamental issues, but we have to construe it in that context", observed Justice Kaul.

"He is not debarred from practising. And he can reapply for seniority. If the court feels he meets the criteria, he may be considered. But would any High Court or even Your Lordships grant this privilege to a person who has been convicted of criminal contempt, with or without imprisonment?", pressed Mr Goel.

"Then this is a very theoretical exercise you are suggesting (of re-applying for designation as senior advocate), if you say that he is guilty of criminal contempt and not worthy of being granted this designation. It doesn't take anyone anywhere. This application will be rejected for being guilty of criminal contempt! You say that he should be disqualified from practice. How would you grant senior designation then?", asked Justice Kaul. "If he applies again, does he have any chance when 23 judges have had the unified view of withdrawing his seniority? We know a unanimous opinion of the full court is something very difficult to achieve", the judge had wondered.

Mr Goel pointed out that even after July 2020, when his seniority was withdrawn, he has made "10s, if not 100s", of appearances before the HC. It was his case that Mr. Oza's practice as a lawyer has not been affected. He was also disputing whether the taking away of the gown was an infringement of a right so as to justify a petition under Article 32.

"The withdrawal of the gown is the most serious consequence for a senior counsel, we are telling you this upfront. Having had the privilege of wearing that gown myself, I know what it must feel to have it taken away. A senior counsel would find it difficult to appear without his gown", said Justice Kaul.

"But we will not scrutinise the decision of the full court. In such an extreme situation, we won't sit in appeal over the High Court's decision. We will not even permit the petitioners to do so. We are only looking at whether there is a reasonable sufficiency of cause for this extreme view taken by the High Court and whether the period of ban can be modified from lifetime to a lesser period. That is why we had initially asked him to take a chance before the High Court. Of course, there was no compulsion on the full court to accept his apology. They may have their own view. We are just looking at whether there is sufficient material to say that the withdrawal of the gown for a lifetime is not disproportionate to the conduct of the petitioner", noted Justice Kaul.

"A man who has experience of so many years in different profiles and capacities, as the leader of the bar and as the representative of the people, what he says in public discourse has credence and an impact. But his utterances don't show that he is conscious of this and that he understands what he says. In view of his background, can he be so out of control in his utterances that he loses all objectivity? That is the sad part", continued the judge.

When Mr Goel wondered if one who has no such control can deserve designation as a senior advocate, which is a privilege, Justice Kaul remarked, "There is a difference between conferment of the privilege for the first time and withdrawal of it. Every human being has his positives and negatives. Sometimes the negative aspects overtake the positives. But I admit that he has gone very far"

"If not now, then when can the power of withdrawal be exercised?", pressed Mr Goel.

"The other side can also argue this point seriously. So the question is only if it should be forever or for a limited period of time during which we watch his behaviour. We will keep this matter in abeyance to see if he has any chance of redemption. We will keep it in abeyance, when it will automatically kick in if there is an aberration. Ultimately, it will come to this only", stated Justice Kaul, hinting that hearing the matter on merits would not be very useful.

"It was more than one unfortunate episode. But what appeals to me is that to withdraw the senior designation from him is a death sentence for the profession. I have great reservations regarding what he did and what he said. I am not unsympathetic to what he has done", Justice Kaul had said at the outset.

The bench had expressed the inclination to hear Mr Goel on why the institution is so hesitant in accepting its suggestion, asking the advocate to point out the facts which aggravated the situation both before and after the press conference.

"The petitioner is a person in public life – not only has he been the president of the bar Association 17 times, but twice he has been a MLA. When he says something, with or without preplanning, he knows that it will have an impact on the public. This was not an off-incident of some general lawyer. That he has been a leader of the bar is being argued in his favour, but it is equally a factor against him", began Mr Goel.

He first indicated an incident of June 2006, when a bench at the Gujarat High Court had made certain adverse remarks against Mr Oza on account of his refusal to respond to the court's queries and his continuous interruptions in writing the order and carrying out the court proceedings. When the bench ultimately said that since the questions seem to be disturbing Mr Oza, they should not ask any more and let him continue with his arguments, Mr Oza proceeded to close his book and tell the bench that he has completed his arguments and that they may pass their order. It may be noted that these comments had come to be expunged at the instance of the Supreme Court.

"How old was he then?", asked Justice Kaul. He was told that Mr. Oza had been 46 years old then, even though he was still the Bar Association President back then. "

"Responses are different at 46 than when you are 62. I have been on that side for 20 years and now 20 years on the side also. Sometimes, we also tend to overreact. Prima facie, this is not a very aggregated episode. Sometimes, these things happen. The best response in such a situation is, 'Why are you making your BP high, and mine too, right in the morning? This aggravated conduct will not get you relief'. When you are younger, the tendency to react when interrupted is more. When I had just joined the bench, I was told by a senior colleague that I must give up the role of arguing now and only listen, that ultimately the pen is in the judge's hand and he can write what he deems correct", said Justice Kaul.

Then, Mr Goel took the bench through the second episode which was of 2006 again, where a sitting judge of the Gujarat High Court had initiated action against a 75-year-old lawyer whose phone happened to ring while in court. A resolution was passed at the bar and Mr. Oza, as President, had issued a press note, containing statements against the judge. "It was a very, very respected senior advocate of the Gujarat High Court. Mobile phones were relatively new back then and Justice Garg, who was very particular, insisted that they either be left outside or be kept off. The mobile phone rang and the judge had said something", explained Mr Goel.

He continued to draw the bench's attention to the third incident of 2015, when Mr. Oza had addressed a letter 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 having "mortgaged" their allegiance to "11, Akbar Road and 7, Race Course Road". It 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.

"This is completely undesirable. This is an aggravated conduct, no doubt. You do not need to read any further. Three lines are sufficient", Justice Kaul observed. He enquired from Mr Goel is Mr Oza's political allegiance at the moment is also to the same institution.

Finally, Mr Goel canvassed the happenings of the last year due to which Mr Oza's gown stands withdrawn. He pointed out that on March 21 last year, Mr Oza had addressed a complaint against a High Court sitting judge to Chief Justice SA Bobde, calling the judge "lazy, defunct and non-performing", besides levelling serious allegations of corrupt practices against him. Subsequently, on June 8, 2020, he circulated this letter on the WhatsApp group of the GHCAA. He had told fellow advocates that he has spoken to the Chief Justice for 15 minutes and apprised him of the situation and that the Chief Justice has asked him to put it in writing.

Mr Goel also indicated a WhatsApp message by him on June 4, claiming that he has received a very serious complaint from over 200 lawyers that the matters of "non-VIPs" are taking 15 days to 1 month to be circulated, whereas "billionaires" are walking away with relief in a single day and that the registry is even allowing their matters to be placed before the "judges of choice", who are not "very strict in their approach". On the following day, on June 5, Mr Oza had held a press conference where he had proceeded to call the High Court a "gambling den".

"Can this behaviour be said to be trivial by any chance? Is it just outrage or sudden provocation over Covid? He has been branding the institution to the general public in the media through prior planning. We have on record letters of advocates that their messages were manipulated by him and that the details are false. A committee of the three most senior sitting judges was constituted by the High Court to look into the allegations against the registry. By its report, they were found to be false. Each judge has individually given its opinion for the withdrawal of the gown – it was not by way of one resolution simpliciter. It is not just one single incident but this cumulative conduct from 2006 to 2021 which has led to this. And this has been the rationale of the HC even after the last discussion", urged Mr. Goel

"The idea of this privilege does not have a middle path- either somebody is fit to be conferred seniority and continue with it, or somebody is not fit. It can't be that somebody is not fit for only six months", he continued.

"The complaint against a sitting judge to the CJI is not what has been held against them but what he does after that. A matter which was supposed to be between him at the bar and Your Lordships on the administrative side was made public! And this is after the chance given to him by the Supreme Court in 2015!", he added.

"Your Lordships are being told that he was so disturbed with the situation of the lawyers amid COVID that he wanted to resign. The truth is that he had had a fight with the Vice President and the Secretary General of the Association and wanted a re-election! This has nothing to do with COVID", pressed Mr Goel.

"There are many other things that cannot be put on paper. What happens before Your Lordships here and what happens before the Gujarat High Court is not uniform!", he advanced.

"Obviously, the first two episodes don't matter to us that much. The third episode is the first episode in our mind. But he had apologised for it and the Supreme Court took a compassionate view of the matter. After that, there have been certain aberrations – the press conference, the utterances, the circulation. The view of the full court on the administrative side was over the act, at the place and at the site. To decide whether we can take a compassionate view, we have to hear him", reflected Justice Kaul.

"The first two episodes, though inappropriate, don't trouble us very much. You are saying how many chances can he be granted. Lord Krishna also said that there is no 101st. We have to see if the utterances of 2020 are sufficient to withdraw his gown, in the background of the 2016 judgement of the Supreme Court. And if yes, if the period can be limited", observed the judge.

"Some things have to be explained. His conduct has been such...Forget the first and the second episodes. They don't bother us that much. As regards the third, he came to the Supreme Court and caution was extended. We are on what has happened after that. It is not as simplistic as I thought. Even though the first two things don't trouble us as much, the rest does. The Supreme Court gave him caution in its wisdom. It was in the backdrop of this judgement that some utterances, letters, the act of circulation, the boasting of his familiarity, that he has talked to so-and-so was done. We will have to understand all this in deciding what course to follow", observed Justice Kaul