"It Is Troublesome That The Dispute Between The Bar And The Bench Reached This Stage": Supreme Court In Yatin Oza Case-Read Full Courtroom Exchange
"It is not unusual for the Court to invoke its powers under Article 142 but we don't want to create bad precedents. Whether Yatin Oza's case is one where we can rely upon 142 or if this path should not be traversed is something which we have not discussed between ourselves yet."
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In connection with Gujarat High Court's contempt action and withdrawal of senior gown from Advocate Yatin Oza, the Supreme Court on Wednesday observed that it shall consider whether Mr Oza having served a particular part of the punishment, the top court can put his lifetime ban in abeyance, for the time being, subject to his conducting himself properly. In that case, for any future infraction,...
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In connection with Gujarat High Court's contempt action and withdrawal of senior gown from Advocate Yatin Oza, the Supreme Court on Wednesday observed that it shall consider whether Mr Oza having served a particular part of the punishment, the top court can put his lifetime ban in abeyance, for the time being, subject to his conducting himself properly. In that case, for any future infraction, it will be up to the High Court to reinstate the life-ban.
The bench of Justices S. K. Kaul and R. Subhash Reddy told Advocate Nikhil Goel for the High Court, "We are not asking you to go back to the High Court and seek consent. What we do and whether we do it and how we do it, we will do it ourselves now".
It may be noted that previously, the bench had asked Mr. Goel to put this suggestion to the High Court to consider suspending the revocation of Mr. Oza's senior designation for a brief period, during which his petition in the Supreme Court will remain pending so that his conduct can be monitored, but the full court of the High Court had refused to show any leniency.
On Wednesday, Justice Kaul told Mr Goel,
"As regards what we can or cannot permit, in view of the legal position, we have a little advantage. The Constitution itself has conferred it under Article 142. Often we tend to do things under 142 which we find difficult to do otherwise. And it is not unusual for the Court to do so because we don't want to create bad precedents. Whether this is the case where we can use 142 or this path should not be traversed is something which we have not discussed between ourselves yet. We will also have to think whether we will traverse this path. Last time, we read the material (of the allegations against Mr. Oza, previous as well as in respect of the 2020 incident from which arose the present proceedings), andit was troublesome to us. But whether the mind should completely prevail or some part of the heart should also prevail is a debate which confronts a judge many times. And it confronts a judge because of the presence of 142. In the High Court, we never had the privilege..."
The following is the courtroom exchange as it transpired on Wednesday:
On Wednesday, Senior Advocate Abhishek Manu Singhvi, for Mr. Oza, had submitted,
"The impugned order of the High Court attempts to, unfortunately, characterise my stand as justification and that there was no apology forthcoming from the inception. But whenever a person apologises, Your Lordships don't say that 'Okay, you apologise, I will let you off and you go home'! I have to give the context, I have to give the justification, but this justification is not in the sense of saying, 'I am right'. But the apology has to go with some explanation! So this finding of the High Court is wrong- on the one hand, the impugned order says that there is no reply to the allegations, and on the other, it says it is justification by me. The two are contradictory"
Continuing, he had advanced, "Your Lordships' approach of apology (as apparent from contempt precedents) has been inclusive and magnanimous, while that of the High Court is very different. Somebody who tries to pull the wool over the eyes of the court will of course fall in a different category, but here is a member of the bar who is contrite and so his apology will fall directly under the first approach!"
To this, Justice Kaul had remarked,
"That you wanted to apologise right from the beginning but did not do so for some reason, the intent was so and so- It is not a layman we are talking about here, but it is a person with expertise in law and a very long career. So please keep this in mind while making the submission"
"Please do not see the submissions as the defence of any impropriety. I am arguing it only because Your Lordships should not feel we have nothing to say. According to me, a person who has had the ignominy and humiliation of having the gown taken away by his own High Court for more than a year has suffered enough...It (the revocation of the senior designation) is excessive, disproportionate, permanent and irreversible! In Einstein's terms, it is neither spatially nor temporarily circumscribed", he continued.
"We are saying that the High Court, in an appropriate case, can withdraw the gown for a fixed period of time and not permanently. Temporal and spatial limitations are very much part of Article 14. This is the heart of the Constitutional jurisprudence of this country. What is reasonable necessarily involves temporal and spatial restrictions. The opposite side is saying that if you are bad, how can you be temporarily bad and so the gown has to be taken away permanently. I do not agree with this- You are taking away the gown as a punishment; the first punishment need not be the death penalty or life imprisonment or may not even mandatorily be 10 years. Your Lordships can give two years or three years! Taking away the gown permanently will be death penalty!", pressed Dr. Singhvi.
When Justice Reddy pointed out that what has weighed with the High Court is that such incidents have been going on since 2006, the Senior Advocate responded,
"If this was the first time, Your Lordships would not even have taken away the gown. The reason the High Court acted was that there is a repetition. But many of the core issues (in the previous incidents of contempt) have been expunged or set aside by the Supreme Court. It is an order of the High Court, but it would hit Article 14 on reasonableness. I am objecting that I be sent back to the High Court to apply for a new gown. Otherwise, this whole exercise is equal to a death sentence! Your Lordships' powers are wide enough to send a clear message and yet tie down the hands in the future for any manner of over-adventurism..."
Justice Kaul reflected as follows,
"Either a case is made out for the recall of the gown or it is not.You say it is in the nature of blacklisting and can be done for one year or two years. It cannot be so because of the nature of the conferment of the status. I don't know if there are any cases where the gown has been withdrawn and then restored after some time. Gowns are withdrawn permanently"
"The withdrawal of the gown happened in the R. K. Anand case (in connection with the 1999 BMW hit-and-run case). And it was simultaneously for another counsel, I. U. Khan. I am not comparing the facts, I am on principle. One principle can be that there cannot be suspension of gown for sometime. The other view is, like the Bar Councils suspend the license for sometime, the analogous principle should be applied for the withdrawal of a gown. But the suggestion made by us has not found favour with the High Court. If that is the position, is the solution to permit him to reapply after a given time or are you saying that the order itself should be limited by time?", continued the judge.
Dr. Singhvi pleaded, "Please set aside this order, but let there be an automatic reference to you every six months."
"We will not sit here again to go through this issue. The High Court is supposed to do it administratively. I am not willing to sit. The withdrawal of the gown was not wrong. The only question is should the withdrawal continue or there is some other lesser thing which can happen. Considering that for 13-14 months, the gown has been withdrawn, we could say that henceforth, the withdrawal of the gown would be kept in abeyance, but on any infraction by him thereafter, the High Court would be well within its right to withdraw the abeyance order", said Justice Kaul
When Dr. Singhvi prayed that the bench not use the term "abeyance", Justice Kaul remarked,
"It has to be, once we say that the withdrawal is right. What you want is that he has been suspended for one year and that has been punishment in itself and therefore, we should close this straight away. This means that next time there is an infraction, again the whole thing will take place. We don't want to take that route. I am going more with my heart than my mind in this. Honestly, my mind would say what has happened is right. My heart says everybody should get a chance, that even after the 20th round, there is a 21st chance, even after a 100, there should be 101. And I am only a mortal; even the Almighty, after 100, said the 101st sin will not be forgiven. So one way is that we uphold the power and the action of the High Court, and we agree to give him the dignity, with the power to the High Court that in the event of any more infraction, we don't come into the picture and the High Court does what it wants to."
Dr. Singhvi indicated the 2020 Prashant Bhushan contempt case, advancing that there the Court had said that if Mr. Bhushan apologised, not even 1 day's sentence may be imposed, and in the 2017 Mohit Chaudhary case, the advocate who accused the Registry of the Top Court in order to favour the opposite party to hastily list the matter with the objective of "Bench Hunt", had been barred from practicing as an Advocate-on-record for one month.
"If you take this route, you will not be able to appeal to my conscience. A man of so many years' standing should be a role model for the younger lawyers. When the role model falls astray, so many members of the bar fall astray. The severity is because of the status, it is not only his infraction, but for the cause of infraction of many others. He is the leader of the bar, his case falls into a different picture", stated Justice Kaul.
Next, Senior Advocate Arvind Datar, also for Mr. Oza, advanced, "We pondered over Your Lordships' suggestion. The order of the full court has now run its course for 13 or 14 months. Your Lordships said it will be kept in abeyance, subject to a caveat that if there is any emotional outburst of any kind or any repetition, it comes back. But there is also a contempt case where I have been convicted and a Rs.2000 fine has been imposed and that is also in appeal. We pray that even the contempt may be kept in abeyance. In case of anything which hampers the dignity of the court, both orders will revive. We don't want to go into the merits if we can achieve a quietus like this."
"Whether we can do anything or not, we have to debate between us. If we do so, you will have to leave to us in what manner we do it. We don't want any caveats or 'ifs' or 'buts'. We will do it in the manner we deem proper. How are we going to deal with the contempt proceedings, what to say in this order, we will consider ourselves. Even if we traverse this path, we will not want to pass the order in the spur of the moment", said Justice Kaul.
Senior Advocate Shekhar Naphade also made a brief statement backing Mr. Oza.
Senior Advocate C. A. Sundaram, for the Gujarat High Court Advocates' Association, also advanced, "Without a doubt, Mr. Oza was canvassing the cause of the bar which we are still very worried about. The language used, the way he conveyed, that has caused the problem..."
"That is the only issue. He said he will never contest elections for the Bar Association and we said we are not concerned about that. You may have different views, there might be issues, but it is the manner of saying it and the manner of saying it again and again! One of the difficult things for the Chief Justice is to have a consensus in full court. A unanimous consensus, as is there in this case, is a rarity. This means there is a feeling in the court, and in his parent court, which is the sad part, that he has not lived up to his standing at the bar and the assurances that he has given earlier. That is why such a strong stand has been taken. Despite us putting some channels and views and options to the High Court, they have been quite firm in their stand that they are not showing any discretion!", said Justice Kaul.
Mr. Sundaram continued to pray for compassionate treatment- that the lockdown times, which formed the backdrop for the present incident, was a terrible and unprecedented time; that there was the issue of virtual hearings, which are now being touted as suiting only senior lawyers; that another important issue is the roster system- there were 10 civil judges and 10 criminal judges and the registry decided which case to put before which judge, which was troubling the bar a lot and particularly the younger lawyers, and that it was only after Mr Oza's contemptuous speech that the roster system was brought into place.
Finally, Mr. Goel sought to dissuade the bench against any compassionate treatment- "In view of our understanding of the legal system, this (the bench's suggestion) may not be permissible. In the High Court, these aspects were met with a very vehement opposition. Also, the suggestion has fallen from a certain factual background that has been portrayed- that he has been apologising right from the start, he offered to resign, what he was saying pertained to the registry and not the court. All this, as per my reading of the order, is inaccurate. In the rejection of apology, the High Court records, the apology was made was after every attempt to defend it on merits after 41 days!"
'What is also more important is the nature of privilege that we have defined this senior designation to be. It is not a punishment for it is not a right, it is not a licence under the Bar Council rules. It is a privilege granted on certain parameters, on the subjective satisfaction of the institution, the full court, before whom the lawyer appears and ordinarily practices. On three occasions, he has shown that the standards which are required to continue the privilege are not there. It cannot be that the institution says we will take away the privilege for sometime and then the standards will come back on their own. I don't think such a procedure should be followed by High Courts in the future...", he continued.
Justice Kaul observed as below,
"Every privilege comes with its own duties and responsibilities. Infraction is supposed to be of those duties and responsibilities. But while determining whether the designation has to be conferred, there is a far greater objectivity, apparent objectivity, which is now sought to be brought in by the judgement of the Supreme Court. That being the situation, his reluctance to go to the High Court to re-apply for the grant of senior designation stems from such observations in the order- that even if he apologises, it is not a fit case (for reconsideration of the order)"
"I am not very impressed by what he has done before and what he has done afterwards also. But we are an institution, and we are far more liberal towards our criticism than for criticism of others...", continued the judge.
Mr. Goel then took the bench through Mr. Oza's post-utterance conduct which, as per him, should persuade the bench to not travel this far- that the full court has recorded that the apology was not at the first instance, that senior members of the bar wrote a letter to the Chief Justice saying that the contents of the press conference are factually incorrect, that the contemptuous acts had nothing to do with the situation prevailing in the Covid lockdown but on account of some in-management dispute between other members of the Bar Association, that it is not that the press conference was against only the registry of the High Court but there are direct allegations against the institution of the High Court.
"In this factual background, the apology came. And also, it was not put to the full court but to every judge individually. Every member of the full court found that the apology lacked bona fide!", pressed Mr. Goel.
When Mr. Datar sought to dispute such representation of facts and to "dispel this impression that Mr. Oza's conduct has been a chronic problem", Justice Reddy stated that it has been a chronic problem. The judge indicated a 2006 incident 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.
"Please see the context in which the observations were made- the bench wanted me to stop but I kept on arguing. That really did not require such harsh observations", intervened Mr. Oza. The bench said, "We are not on merits. We just said it happened in 2006. Every time there is an apology. Where is an end to it?"
"This third contempt is definitely a contempt. The first case of 2006 was the case where the judges inter-se were discussing and I was going on with my arguments. The second case was where a judge had issued contempt notice against the senior most member of the bar on the issue of mobile phone going off in court. There were no press statements, all I did was convene a meeting and presided over it (It may be noted that Mr Goel had previously taken 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. Mr. Goel had told the top court that a resolution was passed at the bar and Mr. Oza, as President, had issued a press note, containing statements against the judge)", responded Mr. Oza.
When the bench asked him to not argue the case, Mr. Oza repeated that his submission is only an apology.
"There is a way of doing things, there is a way of not doing things. Whatever Mr. Datar may say, I don't have the slightest doubt that even if all the things were not such which were not the way to go, there are many things that he has done which were not the way to do. What troubles me is what model we are presenting to the younger members when we are in difficult situations. The younger members are more volatile, the pandemic has created more problems for them, the need for their guidance is even more. This is the leader of the bar, somebody who has held an elected office, with such history, his father's history, his contribution of X number of judges to the High Court and Supreme Court! And these are the judges who have sat together and said 'no'! They must have been really pained, not only to take this extreme step, but also pained enough to stand by it, despite various endeavours by us. Possibly, we cannot clearly measure their anguish. It is not an easy call for us to take", said Justice Kaul.
"Today, you behave like this, tomorrow, you will also be treated like this by a litigant. Where will this institution go? You may have your view as regards the registry; even as judges, we sometimes feel that the registry of this court is not working as it should and we comment on it. But there is a place for it, there is a manner for it... Sometimes, the manner of addressing submissions in one court is different from other courts. The bar is addressed very politely down South. It is the local dynamics that works for the lawyer and the judge...It is itself troublesome that the dispute between the bar and the bench has reached this stage. I will say that you pray that we are able to find a way out...", Justice Kaul told Mr Oza.
In passing its order, the bench dictated, "We have heard the learned counsel for the parties for sometime. In view of certain aspects which appeared during the submissions before us, we would like to examine the ramifications of the same. We defer further consideration to October 7, 2021".
Case Title: Yatin Narendra Oza v. High Court of Gujarat