[Yatin Oza Contempt] "Withdrawal Of Gown From Senior Advocate is Almost A Death Sentence, But Such Instances Not To Be Repeated", Says Justice Kaul

"I did see the record. There are a lot of question marks, in more than one matters, on his conduct. Yes, I agree that withdrawal of gown from a senior advocate is almost a death sentence", observed Justice S. K. Kaul at the outset.

"I am virtually on this only, on the withdrawal of gown for an indefinite period of time. And even the subsidiary points I had raised are not argumentative or in the form of a justification", said Sr. Adv. A. M. Singhvi

"At the last hearing, both Mr. Dushyant Dave and I had said that there are almost 20 judgments of this Court on proportionality and disproportionality. It is like carrying coal to newcastle. The permanent or temporary nature of this death sentence has to be seen", he continued.

"Even if we transverse so far, this cannot be an open-ended proceeding...such instances are not to be repeated", said Justice Kaul.

"It goes without saying that there will be caution. He is not a fool. He knows the whole court is watching him every minute. What has been done cannot be re-winded but he has learnt a lesson", said Dr. Singhvi.

Sr. Adv. Arvind Datar advanced that he has appeared before the High Court on 8-9 instances and sought 5-6 minutes of the Bench's time, urging that the whole point is hanging on three issues- "I am on the provocation for making the statement, the context and the background in which it was made. He is not a person who is repeatedly making such statements. There has to be some balancing."

"Balancing has to be done. That is what we're trying to do between the parent court and the person. I am aware of both this side(Bench) and that side (Bar). You know, if it were to be an innocuous issue, how difficult it is to get a unanimous decision in a full court meeting. Something must have happened, which perturbed the Court so much for the full court to come to a unanimous decision. I am saying this de-hors the observations of the High Court, though some lee-way is given in some of the observations of the High Court. They were really pained at the conduct. This is not about sympathy only for the man but also for the institution. Proportionality has been extended also to life ban in certain case, we have to see whether this is that case or not. We have to do some monitoring, I am just putting thought in mind right now. Of course, your thought, on provocation etc, also matters. I have perused the material brought on record to tentatively put it to you", observed Justice Kaul.

"He was the Bar Association President. We have a long list of 290 complaints but nothing was gone into..."began Mr. Datar.

"Having a complaint or a perception is not a problem. You may express it through words or letters.That is what the profession is about. How you say it is what matters. I faced a situation at the Madras High Court, where a young lawyer said to me

'Will you initiate action against me for contempt?'.

I said, 'There will be no contempt. Don't give yourself so much importance. Go out, have a glass of water and come back.' And this is because he was a young, enthusiastic lawyer. But if you or Dr. Singhvi or Mr. Sundaram were to do this, it would not be acceptable. Better control over emotions is expected. He has been the president of the Bar, he has greater responsibility as he is being followed by young lawyers", reflected Justice Kaul.

"Before the High Court, he has apologised 20-25 times..." pressed Mr. Datar.

"There is some angst...16 times he has been President of the Bar, that is not an ordinary feat. His lineage is so respectable. Four people from his chambers have come to the SC and numerous others in the HCs...One order was passed against me, which said, (a) apology is a part of contempt and not gown (b) apology is justification (c) the apology is not genuine (d) even if it is, it won't be accepted...just see the dilemma of the person. He stood on his head and his hands to apologise, right when the matter started. It cannot be the intention of the court to humiliate him but only to teach him a lesson for the long term?", urged Dr. Singhvi.

"It is said that apology comes from the heart and not from the teeth. The Judges have given an impression that here it has come from the teeth- it may be wrong, it may be right", noted Justice Kaul.

"What we are feeling as an association is that there is a duty to take up the issue of how the registry is functioning. The subject matter of what was spoken is not contempt. The order equates criticism of registry with criticism of the courts. We don't want that to happen. Of course, we do not subscribe to the manner in which it was said. It could have been spoken in a different manner.", advanced Mr. Datar.

"When we as judges write judgments, the same judgment gains praise from one quarter and criticism from another. We accept it as a part of our job, so long as no motives are included. Of course, we are not infallible. I always say that a judgment is an opinion so everybody has a right to say whether it is right or wrong. You may say that the judge does not understand this, but you can't say he is an 'old fool'. There is a thin line to when motives are attributed", said Justice Kaul.

"Old is a matter of opinion", it was remarked.

"We are only concerned that the baby should not be thrown out with the bath water", advanced Sr. Counsel C.A. Sundaram.

"Tomorrow you may say that we did this because of this or that. You should be concerned that when you are trying to find a solution for the Petitioner, you are also responsible for the institution. You are there because the institution is there. The Judges are there because the institution is there. If you destroy the institution, you are transversing a line. You are crossing the boundary of maintaining the dignity of the institution to which both you and I are responsible. Otherwise, you create a hunch that people don't respect it...There is a Parliament, an Executive and a Judiciary- if you say everything is wrong, then there is anarchy. The respect for the institution and for the people manning it has to be there. If you say a judge doesn't work, it does not bother us. But something more appears to have happened here. We'll try to do what we can", observed Justice Kaul.

At this point, Advocate Yatin Oza sought to make a submission. Justice Kaul said that since he is "in the dock of the entire issue" he is welcome to make submissions.

"I have always treated this institution with utmost respect. I have bowed my head before it. My love and respect for the institution is beyond doubt though sometimes I may have (cutting off).....I have taken up the cause of the institution and invited trouble for myself in several situations except for the present. In the current situation, I took up the cause for the bar, but the bar is also for the institution only", began Mr. Oza.

"In the first instance, there was a contempt notice against a 75 year old, whose mobile alarm burst while it was on switched off mode. In another case, two advocates talking in the court was contempt. In the third, the matter was infructuous but there were heated arguments and some strictures came to be passed. Your Lordships had expunged them. So two have been expunged by Your Lordships....", he continued.

To this Justice Kaul remarked in Hindi, "shabd ka bandd jab nikal jaata hai (when the arrow of words is shot), it is difficult to take it away. Isiliye soch ke bolna chahiye (so one should think before they speak)"

"I agree! I bow down! I have suffered enough! It is my humble prayer to put an end to this! I cannot move in this society! I cannot go to Court for the 3-4 matters that I had accepted! After 21 years as a Senior Advocate, it is so difficult to go as an Advocate", prayed Mr. Oza.

"We understand your anxiety and we want to put an end to it, but we cannot do it today. We have to hear the other side and take a view." assured Justice Kaul.

"I have been held guilty of contempt. But the stay only operates till 5^th of November", urged Mr. Oza. Justice Kaul inquired from him if he has paid the fine.

"If I pay the fine, the order would come into force and I would have to surrender. I would be deeply obliged if the matter could be taken up on November 22 or 23. I have learnt the lesson of my life. I won't repeat", continued Mr. Oza.

"I have already fixed the longest matters for those days. For you, I have picked a day where you can be patiently heard", said Justice Kaul.

"I had urged before the Court that the withdrawing of the gown is enough and that there may not be any contempt of court, but imprisonment till the rising of the court is imposed", said Mr. Datar, praying for a stay on the imprisonment and the fine till the next date of the hearing.

Advocate Nikhil Goel for the Gujarat HC asked for a later date citing some personal reasons. Justice Kaul inquired why he could not be available on the chosen date, so he informed the Court that there is a wedding in the family. He further raised the point that the Court may limit the number of the Senior advocates appearing for the Petitioner, presently being five, otherwise it will be a never ending process.

"It is in their own interest to end this matter, else nothing will happen. Mr. Sundaram has filed a petition for the Association which we have allowed to remain pending but not said anything. Once we take a view, not much will remain to be argued in the criminal appeal. I am also guilty of taking time in raising my concerns to these senior advocates....but once your argue, confine yourself to the contours and do not expand", said Justice Kaul.

"Yes, I will not argue it like a first appeal. I am only on the salient features to show proportionality. Nobody has even begun on the reasons for what fell from the High Court", said Mr. Goel.