YATIN NARENDRA OZAversusHIGH COURT OF GUJARAT

                         [2021] 8 S.C.R. 849                              849


                     YATIN NARENDRA OZA                                   A
                                  v.
                   HIGH COURT OF GUJARAT
                (Writ Petition (Civil) No.734 of 2020)
                        OCTOBER 28, 2021                                  B

 [SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]
       Constitution of India – Arts.32, 142 – Withdrawal of Senior
Advocate’s gown – Petition u/Art.32 – Maintainability of – Petitioner-
erstwhile designated Senior Advocate and President of the Bar             C
Association of Gujarat High Court had casted aspersions on Judges
in the past – Eventually, petitioner’s apology was accepted with an
undertaking – Again made serious allegations in his capacity as
the President of the Bar against a senior-most Judge of the High
Court – Contempt proceedings initiated; notice for withdrawal of
senior’s gown – Apology tendered – Not found genuine – Privilege          D
of Senior’s gown withdrawn unanimously by Full Bench of the High
Court – Held: There is no real infringement of the fundamental
rights of the petitioner – However, one more and last chance given
to the petitioner– Designation of the petitioner temporarily restored
for two years from 1.1.2022 – If there is any infraction in the conduct   E
of the petitioner within such period, the High Court can withdraw
the said indulgence given – Advocates Act, 1961.
      Disposing of the writ petition, the Court
       HELD: 1. This Court respected the views of the High Court
but still endeavours to give one more and last chance to the              F
petitioner. In a way this can really be done by recourse to Article
142 of the Constitution of India as there is merit in the contention
of the counsel for the High Court that there is no real infringement
of the fundamental rights of the petitioner. The ends of justice
would be served by seeking to temporarily restore the designation
                                                                          G
of the petitioner for a period of two years from 1.1.2022. It is the
High Court which will watch and can best decide how the
petitioner behaves and conducts himself as a senior counsel
without any further opportunity. It will be for the High Court to
take a final call whether his behaviour is acceptable in which case
                                                                          H
                                 849
850            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     the High Court can decide to continue with his designation
      temporarily or restore it permanently. If there is any infraction in
      the conduct of the petitioner within this period of two years, the
      High Court would be well within its rights to withdraw the
      indulgence which this Court has given for two years which in
      turn is predicated on the assurances given by the petitioner and
B
      his counsel for the immaculate behaviour without giving any
      cause to the High Court to find fault with his conduct. [Paras 11,
      12][854-B-F]
            Yatin Narendra Oza vs Khemchand Rajaram Koshti and
            Ors. (2016) 15 SCC 236 : [2016] 4 SCR 756; Indira
C           Jaising v. Supreme Court of India (2017) 9 SCC 766 :
            [2017] 10 SCR 478; Modern Dental College v. State
            of M.P (2016) 7 SCC 353 : [2016] 3 SCR 579
            – referred to.
                              Case Law Reference
D
      [2016] 4 SCR 756                 referred to             Para 2
      [2017] 10 SCR 478                referred to             Para 5
      [2016] 3 SCR 579                 referred to             Para 10
            CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.734
E
      of 2020
            (Under article 32 of the constitution of india)
            Dr. Abhishek Manu Singhvi, Arvind Datar, Shekhar Naphade,
      Pravin H Parekh, Mihir Joshi, Rasesh Oza, Sr. Advs., Purvish Jitendra
F     Malkan, Ms. Kruti Shah, Aditya Gupta, Ms. Dharita P. Malkan, Ms.
      Deepa Gorasia, Alok Kumar, Ms. Nandini Chhabra, Ms. Bhavna Sarkar,
      Advs. for the Petitioner.
           Dushyant Dave, Sr. Adv., Nikhil Goel, Ms. Naveen Goel, Vinay
      Mathew, E. C. Agrawala, Advs. for the Respondent.
G           The Judgment of the Court was delivered by
            SANJAY KISHAN KAUL, J.
             1. One more chance after the last chance. That appears to be
      what is sought to be urged on behalf of the petitioner, Mr. Yatin Narendra
      Oza - counsel with many years standing, President of the Bar Association
H
          YATIN NARENDRA OZA v. HIGH COURT OF GUJARAT                             851
                    [SANJAY KISHAN KAUL, J.]

of the High Court of Gujarat on many occasions, and an erstwhile                  A
designated Senior Advocate. The privilege of the Senior’s gown has
been withdrawn unanimously by a Full Bench of the Gujarat High Court
and that is what is sought to be assailed in the present petition under
Article 32 of the Constitution of India.
        2. This is not the petitioner’s first run in with the High Court or for   B
that matter the Supreme Court. The problem appears to be that the
petitioner does not seem to keep a balance between his role as a senior
counsel and as President of the Bar Association and, thus, crosses the
Lakshman Rekha repeatedly. In the written note filed on behalf of the
Gujarat High Court (for short ‘High Court’), it has been pointed out that
he made certain utterances in 2006 against two named Judges, casting              C
aspersions on their faith and their allegiance to the Constitution of India
and the laws; claiming that they had instead mortgaged the same with
the political powers that be at that time. This resulted in the issuance of
a notice of contempt on 27.4.2006 and his role was commented upon in
the earlier orders dated 30.8.2006 and 12.10.2006. Though they were               D
finally expunged by this Court, seeking to give a long rope to the petitioner.
The petitioner’s apology was accepted with an undertaking, which was
reported in Yatin Narendra Oza v. Khemchand Rajaram Koshti and
Ors. 1
        3. On 21.03.2020, the petitioner wrote a letter to the Hon’ble
                                                                                  E
Chief Justice of India making serious allegations against a senior-most
Judge of the High Court in his capacity as President of the Bar
Association. The petitioner then transgressed all limits by circulating the
letter in the Bar Association’s WhatsApp group on 8.6.2020, three days
after calling the High Court a “Gamblers Den”. The WhatsApp messages
were circulated by holding a Press Conference 05.06.2020 (“Press                  F
Conference”), thereby making allegations of impropriety against the
Institution of the High Court itself.
       4. Dual proceedings arose against the petitioner – one of contempt
and the other of a notice as to why the privilege of the gown should not
be withdrawn. It is the say of the petitioner that he submitted an apology        G
at the threshold in both these proceedings. Be that as it may, the Full
Court unanimously found that his apology was not genuine. The rationale,
as apparent from both the proceedings, is that the first apology arose on
16.7.2020, i.e., after 41 days, during which time every attempt was made
1
    (2016) 15 SCC 236                                                             H
852                SUPREME COURT REPORTS                         [2021] 8 S.C.R.


A     to justify the conduct on merits and the apology was tendered as a matter
      of last resort. There was no contrition or remorse prior to that. The
      apology has been labelled as a repeated behaviour of what would amount
      to “slap, say sorry, and forget”. Since the statements issued by the
      petitioner caused huge damage to the Court and could not be repaired
      by the apology, the same was not accepted. The statements were not
B
      made in the heat of the moment, but were planned by way of a live
      telecast. Each of the members of the Full Court individually felt that the
      apology was only a paper apology. The privilege of the gown was
      withdrawn.
             5. We may note at the threshold that the High Court has objected
C
      to the maintainability of a petition under Article 32 of the Constitution of
      India. The designation as a Senior Counsel in terms of the Rules framed
      under the Advocates Act, 1961 does not create a right much less a
      fundamental right in favour of the petitioner. Thus, it was submitted that
      what has been withdrawn is a ‘privilege’ and not a ‘right’. The very
D     nature of conferment of a designation is submitted to be a privilege (Indira
      Jaising v. Supreme Court of India2) and, thus, the withdrawal of the
      privilege by those who conferred it would not make it justiciable at all
      especially since such withdrawal is not a bar to be granted such privilege
      again. It is thus submitted that in the absence of a right, no writ of
      mandamus can be issued.
E
             6. It has been emphasised on behalf of the High Court that the
      conferment of this privilege weighs not only on the existence of certain
      legal acumen but a much higher standard of behaviour and if such pre-
      supposition disappears, the authority is empowered to withdraw the
      privilege. What has been urged is that re-conferment of this right on the
F
      petitioner through a writ of mandamus would be de hors the exercise of
      powers under statutory rules.
             7. Dr. Singhvi and other counsel, coming to the aid of their colleague
      of long standing, did not seek to justify the conduct of the petitioner. The
      direction of the argument has been that this Court should show
G
      compassion. The withdrawal of designation is not limited by time and is
      disproportionately harsh as the petitioner is not being given an opportunity
      to redeem himself. The filing of an application afresh for designation
      after the specified time bar is stated to not really be a redemption.

      2
H         (2017) 9 SCC 766
       YATIN NARENDRA OZA v. HIGH COURT OF GUJARAT                              853
                 [SANJAY KISHAN KAUL, J.]

       8. Dr. Singhvi sought to explain that the petitioner had bona fidely     A
raised issues within the institution regarding non-circulation of matters,
based on a large number of complaints received from the members of
the Bar by him by reason of his holding the position of the President.
The petitioner endeavoured to resolve the grievances within the system
by writing several letters and making many representations which were
                                                                                B
in a sober and restrained language. The grievance was stated to be not
one against the Judges, but against the manner of working of the Registry.
On account of his helplessness and not being able to provide solace to
the lives of the suffering advocates, the petitioner even resigned as the
President of the Bar but on account of the unanimous opinion of the Bar,
withdrew the same. The Press Conference was stated to be the                    C
culmination of his inability to resolve the disputes, as a last resort. The
petitioner got emotionally overwhelmed during the Press Conference
and made utterances of which he has been very apologetic from the
very beginning. It was submitted that the emotional utterances were not
pre-planned, and therefore, parts of what he said are sought to be relied
                                                                                D
upon to substantiate that he was not making allegations against the Bench
as a whole.
        9. In the proceedings before the Full Court also it was submitted
that at the threshold an apology had been submitted. However, the Full
Court had opined that even if the apology would have been given at the
first instance, still the apology would not have been accepted as it was        E
not submitted at the threshold. The consequence of the decision of the
Full Court is stated to be that the contempt proceedings became fait
accompli.
       10. Dr. Singhvi really sought to canvas on the proportionality of
the Full Court’s decision, as did the petitioner who intermittently addressed   F
the Court; even volunteering that he at times loses his balance while
performing the role as the President of the Bar and that he is willing to
give an undertaking that he will never contest elections to the Bar
Association. We informed him that was a decision of his own to take
and we certainly would not like to inhibit his right to contest the elections   G
as a member of the Bar. It was his say and that of his counsel that the
petitioner has learnt his lesson and, thus, an opportunity must be given to
him for redemption. The withdrawal of designation was stated to be the
most severe punishment for any Senior Advocate and in that behalf, the
observations of Chief Justice Dickson of the Canadian Supreme Court
                                                                                H
854                SUPREME COURT REPORTS                         [2021] 8 S.C.R.


A     in a historic case of ‘R. v. Oakes’ were referred to in Modern Dental
      College v. State of M.P.3as under:
               “The more severe the deleterious effects of a measure, the more
               important the objective must be if the measure is to be reasonable
               and demonstrably justified in a free and democratic society.”
B            11. In the conspectus of the aforesaid we really find little ground
      to interfere with the impugned order before us. We respect the views of
      the High Court but still endeavour to give one more and last chance to
      the petitioner. In a way this can really be done by recourse to Article 142
      of the Constitution of India as there is merit in the contention of the
C     learned counsel for the High Court that there is no real infringement of
      the fundamental rights of the petitioner. The question is in what manner
      this last chance should be given?
             12. We are of the view that the ends of justice would be served
      by seeking to temporarily restore the designation of the petitioner for a
D     period of two years from 1.1.2022. It is the High Court which will watch
      and can best decide how the petitioner behaves and conducts himself as
      a senior counsel without any further opportunity. It will be for the High
      Court to take a final call whether his behaviour is acceptable in which
      case the High Court can decide to continue with his designation temporarily
      or restore it permanently. Needless to say that if there is any infraction
E     in the conduct of the petitioner within this period of two years, the High
      Court would be well within its rights to withdraw the indulgence which
      we have given for two years which in turn is predicated on the assurances
      given by the petitioner and his counsel for the immaculate behaviour
      without 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 conduct
F
      as a senior counsel before his own High Court, which will have the final
      say. All we are seeking to do is to give him a chance by providing a
      window of two years to show that he truly means what he has assured
      us. We can only hope that the petitioner abides by his assurances and
      does not give any cause for the High Court or for us to think otherwise.
G
             13. We dispose of the writ petition with the aforesaid directions
      with this sanguine hope.

      Divya Pandey                                          Writ Petition disposed of.


H     3
          (2016) 7 SCC 353