YATIN NARENDRA OZA versus HIGH COURT OF GUJARAT on 28 October 2021

1. One more chance after the last chance. That appears to bewhat is sought to be urged on behalf of the petitioner, Mr. Yatin NarendraOza - counsel with many years standing, President of the Bar AssociationH

of the High Court of Gujarat on many occasions, and an erstwhiledesignated Senior Advocate. The privilege of the Senior’s gown hasbeen withdrawn unanimously by a Full Bench of the Gujarat High Courtand that is what is sought to be assailed in the present petition underArticle 32 of the Constitution of India.

2. This is not the petitioner’s first run in with the High Court or forthat matter the Supreme Court. The problem appears to be that thepetitioner does not seem to keep a balance between his role as a seniorcounsel and as President of the Bar Association and, thus, crosses theLakshman Rekha repeatedly. In the written note filed on behalf of theGujarat High Court (for short ‘High Court’), it has been pointed out thathe made certain utterances in 2006 against two named Judges, castingaspersions on their faith and their allegiance to the Constitution of Indiaand the laws; claiming that they had instead mortgaged the same withthe political powers that be at that time. This resulted in the issuance ofa notice of contempt on 27.4.2006 and his role was commented upon inthe earlier orders dated 30.8.2006 and 12.10.2006. Though they werefinally expunged by this Court, seeking to give a long rope to the petitioner.The petitioner’s apology was accepted with an undertaking, which wasreported in Yatin Narendra Oza v. Khemchand Rajaram Koshti andOrs.[1]

3. On 21.03.2020, the petitioner wrote a letter to the Hon’bleChief Justice of India making serious allegations against a senior-mostJudge of the High Court in his capacity as President of the BarAssociation. The petitioner then transgressed all limits by circulating theletter in the Bar Association’s WhatsApp group on 8.6.2020, three daysafter calling the High Court a “Gamblers Den”. The WhatsApp messageswere circulated by holding a Press Conference 05.06.2020 (“PressConference”), thereby making allegations of impropriety against theInstitution of the High Court itself.

4. Dual proceedings arose against the petitioner – one of contemptand the other of a notice as to why the privilege of the gown should notbe withdrawn. It is the say of the petitioner that he submitted an apologyat the threshold in both these proceedings. Be that as it may, the FullCourt unanimously found that his apology was not genuine. The rationale,as apparent from both the proceedings, is that the first apology arose on16.7.2020, i.e., after 41 days, during which time every attempt was made A

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Ato justify the conduct on merits and the apology was tendered as a matterof last resort. There was no contrition or remorse prior to that. Theapology has been labelled as a repeated behaviour of what would amountto “slap, say sorry, and forget”. Since the statements issued by thepetitioner caused huge damage to the Court and could not be repairedby the apology, the same was not accepted. The statements were notBmade in the heat of the moment, but were planned by way of a livetelecast. Each of the members of the Full Court individually felt that theapology was only a paper apology. The privilege of the gown waswithdrawn.

5. We may note at the threshold that the High Court has objectedCto the maintainability of a petition under Article 32 of the Constitution ofIndia. The designation as a Senior Counsel in terms of the Rules framedunder the Advocates Act, 1961 does not create a right much less afundamental right in favour of the petitioner. Thus, it was submitted thatwhat has been withdrawn is a ‘privilege’ and not a ‘right’. The veryDnature of conferment of a designation is submitted to be a privilege (IndiraJaising v. Supreme Court of India[2]) and, thus, the withdrawal of theprivilege by those who conferred it would not make it justiciable at allespecially since such withdrawal is not a bar to be granted such privilegeagain. It is thus submitted that in the absence of a right, no writ ofmandamus can be issued.E

6. It has been emphasised on behalf of the High Court that theconferment of this privilege weighs not only on the existence of certainlegal acumen but a much higher standard of behaviour and if such pre-supposition disappears, the authority is empowered to withdraw theprivilege. What has been urged is that re-conferment of this right on theFpetitioner through a writ of mandamus would be de hors the exercise ofpowers under statutory rules.

7. Dr. Singhvi and other counsel, coming to the aid of their colleagueof long standing, did not seek to justify the conduct of the petitioner. Thedirection of the argument has been that this Court should showGcompassion. The withdrawal of designation is not limited by time and isdisproportionately harsh as the petitioner is not being given an opportunityto redeem himself. The filing of an application afresh for designationafter the specified time bar is stated to not really be a redemption.

8. Dr. Singhvi sought to explain that the petitioner had bona fidelyraised issues within the institution regarding non-circulation of matters,based on a large number of complaints received from the members ofthe Bar by him by reason of his holding the position of the President.The petitioner endeavoured to resolve the grievances within the systemby writing several letters and making many representations which werein a sober and restrained language. The grievance was stated to be notone against the Judges, but against the manner of working of the Registry.On account of his helplessness and not being able to provide solace tothe lives of the suffering advocates, the petitioner even resigned as thePresident of the Bar but on account of the unanimous opinion of the Bar,withdrew the same. The Press Conference was stated to be theculmination of his inability to resolve the disputes, as a last resort. Thepetitioner got emotionally overwhelmed during the Press Conferenceand made utterances of which he has been very apologetic from thevery beginning. It was submitted that the emotional utterances were notpre-planned, and therefore, parts of what he said are sought to be reliedupon to substantiate that he was not making allegations against the Benchas a whole.

9. In the proceedings before the Full Court also it was submittedthat at the threshold an apology had been submitted. However, the FullCourt had opined that even if the apology would have been given at thefirst instance, still the apology would not have been accepted as it wasnot submitted at the threshold. The consequence of the decision of theFull Court is stated to be that the contempt proceedings became faitaccompli.

10. Dr. Singhvi really sought to canvas on the proportionality ofthe Full Court’s decision, as did the petitioner who intermittently addressedthe Court; even volunteering that he at times loses his balance whileperforming the role as the President of the Bar and that he is willing togive an undertaking that he will never contest elections to the BarAssociation. We informed him that was a decision of his own to takeand we certainly would not like to inhibit his right to contest the electionsas a member of the Bar. It was his say and that of his counsel that thepetitioner has learnt his lesson and, thus, an opportunity must be given tohim for redemption. The withdrawal of designation was stated to be themost severe punishment for any Senior Advocate and in that behalf, theobservations of Chief Justice Dickson of the Canadian Supreme Court AB

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Ain a historic case of ‘R. v. Oakes’ were referred to in Modern DentalCollege v. State of M.P.[3]as under:

“The more severe the deleterious effects of a measure, the moreimportant the objective must be if the measure is to be reasonableand demonstrably justified in a free and democratic society.”

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11. In the conspectus of the aforesaid we really find little groundto interfere with the impugned order before us. We respect the views ofthe High Court but still endeavour to give one more and last chance tothe petitioner. In a way this can really be done by recourse to Article 142of the Constitution of India as there is merit in the contention of theClearned counsel for the High Court that there is no real infringement ofthe fundamental rights of the petitioner. The question is in what mannerthis last chance should be given?

12. We are of the view that the ends of justice would be servedby seeking to temporarily restore the designation of the petitioner for aDperiod of two years from 1.1.2022. It is the High Court which will watchand can best decide how the petitioner behaves and conducts himself asa senior counsel without any further opportunity. It will be for the HighCourt to take a final call whether his behaviour is acceptable in whichcase the High Court can decide to continue with his designation temporarilyor restore it permanently. Needless to say that if there is any infractionEin the conduct of the petitioner within this period of two years, the HighCourt would be well within its rights to withdraw the indulgence whichwe have given for two years which in turn is predicated on the assurancesgiven by the petitioner and his counsel for the immaculate behaviourwithout giving any cause to the High Court to find fault with his conduct.In effect, the fate of the petitioner is dependent on his appropriate conductFas a senior counsel before his own High Court, which will have the finalsay. All we are seeking to do is to give him a chance by providing awindow of two years to show that he truly means what he has assuredus. We can only hope that the petitioner abides by his assurances anddoes not give any cause for the High Court or for us to think otherwise.G13. We dispose of the writ petition with the aforesaid directionswith this sanguine hope.

Divya Pandey

Writ Petition disposed of.

H3 (2016) 7 SCC 353