On 9th June, 2020, a Division Bench of the Gujarat High Court led by Justice Sonia Gokani took suo motu cognizance of the statements made by Mr. Yatin Oza, President of the Gujarat High Court Advocates Association and proceeded to initiate criminal contempt proceedings against him. This is not the first time in recent years when Mr. Oza has found himself to be in hot water. As recently as 2016, the Supreme Court was seized of a matter involving contempt alleged to have been committed by Mr. Oza for criticising the transfer of two judges from the Gujarat High Court. Only once an unconditional apology was tendered by Mr. Oza was the matter put to rest by the Supreme Court.
In the present circumstances, Mr. Oza is alleged to have made certain strong and hard-hitting remarks against the Registry of the Gujarat High Court in a live press conference that was streamed on Facebook. The allegations were recorded by the High Court in its order and they include statements such as "corrupt practices being adopted by the registry of the High Court of Gujarat", "undue favour is shown to high-profile industrialists and smugglers and traitors" (para 6). The High Court took serious objection to the remarks made by Mr. Oza and reprimanded im by stating that "he appears to have crossed all limits by condemning recklessly the institution". In the Order, the High Court expresses its disappointment in the "reckless" manner in which the President of the GHCAA has behaved. In expressing its opinion the Court made reference to Re: Vijay Kurle, a recent decision of the Supreme Court of India, where the Court held that the law of contempt existed to ensure that respect for the Court's functioning was upheld at all times.
Finally, in paragraph 16, the High Court concluded that there is a prima facie case of criminal contempt as per Section 2(c) of the Contempt of Courts Act, 1971 ("the Act"). Taking cognizance of contempt under Section 15 of the Act, the Registry was directed to place the matter before the Chief Justice of the High Court to be put before the appropriate roster bench for adjudication on merits. Curiously, the order further directs that the question of whether Mr. Oza is to be divested of his designation as Senior Advocate should be placed before the Chief Justice for consideration by the full Court.
This entire episode revives the debate surrounding the existence of criminal contempt provisions under Indian law. The Law Commission of India has previously stated that merely removing criminal contempt under the Act does not entirely remove the idea of criminal contempt in India, as the source of the Court's power in that regard stems out of Article 142(2) of the Constitution.
Procedure for Criminal Contempt
In order to address whether or not Mr. Oza's statements merit the removal of his designation as Senior Advocate, it is essential to have a brief overview of how criminal contempt is dealt with as per the scheme of the Act at present. Criminal contempt as defined under Section 2(c) of the Act as follows:
"Means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;"
There are two distinct approaches to contempt depending on the circumstances in which the alleged act of contempt takes place. The first is where the alleged act is before the Court itself (provided for, under Section 14), and the second is where the alleged act takes place otherwise (under Section 15). As the alleged act of contempt has not taken place in the face of the Court, the case falls under Section 15 of the Act.
This Section stipulates three ways by which cognizance of criminal contempt may be taken, and includes (i) suo motu cognizance, (ii) on a motion made by the Advocate General of the State, (iii) or on a motion by any other person with the consent of the Advocate General taken in writing.
After cognizance is taken, recourse to the procedure entailed under Section 17 is taken. The individual charged with contempt must be served notice of every proceeding taking place under Section 15. This notice should be accompanied by a copy of any motion or reference filed by any party or subordinate Court. Section 17 also allows the Court to attach property (as per the Code of Civil Procedure, 1908), if it has reasons to believe that the person charged under Section 15 would abscond or run away from the legal proceedings. Finally, Section 17 adheres to due process norms and provides the individual charged with contempt the opportunity to file an affidavit in support of his defence. Section 18 lists out that any case of criminal contempt ought to be heard by a Bench of not less than two Judges.
The relevant rules for Mr. Oza's case are contained within the Contempt of Courts (Gujarat High Court) Rules, 1984, which under Rule 5, lay out that the Court may take suo motu cognizance of alleged criminal contempt committed under Section 15 of the Act.
In Court on its own Motion v. State, Justice Lokur (then a judge of the Delhi High Court) in declining to take suo motu cognizance of contempt against NDTV stated that Courts ought to exercise their power of suo motu cognizance sparingly, specifically because of how grave and serious the matter of contempt is. That judgment also makes reference to Oswald's Contempt of Court, Committal, Attachment, and Arrest upon Civil Process, which reads as follows:
All publications which offend against the dignity of the Court, or are calculated to prejudice the course of justice, will constitute contempts. Offences of this nature are of three kinds - namely, those which (1) scandalize the Court; or (2) abuse the parties concerned in causes there; or (3) prejudice mankind against persons before the cause is heard.
Previously, the Gujarat High Court, in Suo Motu v. Nandlal Thakkar, Advocate has taken suo motu cognizance of criminal contempt. In doing so, the High Court noted that Mr. Thakkar had made comments in Court whereby he attributed dishonesty to the conduct of the Court, and thereby made out a prima facie case of criminal contempt.
The most relevant case to understanding the procedure under Section 17, however, is Re: Vijay Kurle, at the Supreme Court of India. That case clarified that the Act in no way curtailed the powers of the Court to suo motu initiate cases of contempt. That judgment also laid out that any Bench may issue notice in respect of an alleged contemptuous act and thereafter place it before the Chief Justice of the Court for listing before the Bench. Subsequently, it becomes clear that the procedure followed in Mr. Oza's case by the Gujarat High Court conforms to the procedural rules laid out by the Act, and affirmed by the Supreme Court in Re: Vijay Kurle.
Whether the designation as Senior Advocate may be stripped away in such circumstances?
Finally, it is necessary to focus on one of the directions issued by the Gujarat High Court in the present case. The direction being number (4) in para 17 of the order states,"We also deem it appropriate to place before the Chief Justice for consideration at the hands of the full Court whether to divest the stature of respondent under contempt, of designation of a senior advocate under the circumstances."
The question that arises is what situations call for such action and what is the procedure that is to be followed in those circumstances?
The conferment of the tag of a Senior Advocate has been entrusted to the Supreme Court and the various High Courts under Section 16(2) of the Advocates Act, 1961 and the criteria as per the above mentioned provision is categorised into (i) a person having standing at the Bar or (ii) a person having special knowledge or (iii) a person having experience in law.
Prior to the judgement in the case of Indira Jaising vs. Supreme Court through its Registrar General ("Indira Jaising judgement"), there was no uniform criteria in place at the High Courts or the designation of Senior Advocates. Even the Supreme Court did not pay much heed to the procedure to be followed and this is evident from Rule 2(a) of Order IV of the Supreme Court Rules, 2013 which was a carbon copy of Section 16(2) of the Advocates Act, 1961 and Rule 2(b) imposes certain restrictions on Senior Advocates with regard to their functioning and appearance before the Court. Most High Courts relied upon notifications issued which briefly described rudimentary criteria needed to qualify for the designation as a Senior Advocate. The procedure for designation was varying between High Courts as was observed by the Supreme Court in the Indira Jaising judgement. Some High Courts required a:
As is clear from the above, varying procedures were followed by the High Courts above and beyond the stark difference in criteria like age, income, length of practice etc. It is also interesting to note that only 2 High Courts( Uttarakhand and Madras) mentioned the power of the Full Court to strip an individual of the designation if the Full Court was of the view that "such advocate is not worthy of the designation any more" so there were no real grounds of misconduct or misbehaviour mentioned that would lead to a situation where an individual would be stripped off their designation.
This was the situation prior to the judgement in October 2017 and while concluding, the Supreme Court provided some broad guidelines to bring about uniformity in the procedure of designation of Senior Advocates. These guidelines included the setting up of a permanent Committee and specified the composition of said Committee, established a Secretariat and mentioned its functions and most importantly the final guideline stated that "In the event a Senior Advocate is guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same."
Since this case is one from the Gujarat High Court, the focus here is limited to provisions of said High Court's rules. The provision as found in the High Court of Gujarat Designation of Senior Advocates Rules, 2018 is the same as the guideline provided by the Supreme Court as mentioned above. The only addition to Gujarat rules is the proviso which provides an opportunity of hearing to the person concerned before the Full Court makes its decision. Therefore, the procedure to be followed is that first, the Senior Advocate must be found to be guilty of the charges levelled against them, and the charge in the present case is that of criminal contempt. Second, the conduct in question must, in the opinion of the Full Court, disentitle the Senior Advocate from holding onto the designation and third, the Senior Advocate must be given an opportunity to be heard in accordance with the principles of natural justice. Respectfully, the Division Bench of the Gujarat High Court, in its order of 9th June, 2020, has not only taken cognizance of the alleged criminal contempt committed by the Senior Advocate, Mr. Yatin Oza, but also, it has rushed to the defence of the Court and its Registry and expressed its disappointment with the conduct of the alleged contemnor and on a cursory reading of the order, it seems that the Court has already determined the guilt of the alleged contemnor and in furtherance of the same has referred the matter to the Chief Justice to place before the Full Court for consideration whether the alleged contemnor must be stripped of the designation of Senior Advocate. The Court while acknowledging that it does not have the roster to hear matters relating to contempt under the Act refers the matter to the Chief Justice for necessary consideration. It is contended that if the guilt of the alleged contemnor could not have been established by this particular Division Bench, it should have restrained itself from referring the matter to the Chief Justice for placing it before the Full Court to consider the alleged contemnor's senior designation as that is a step that would be subsequent to the determination of guilt by the appropriate bench and these remarks might prejudice another bench against the alleged contemnor.
It is not often that a Senior Advocate is on brink of having his designation stripped off and makes one wonder if such a situation has arisen before. The case of R.K. Anand and I.U. Khan comes to mind wherein the former Senior Advocates of the Delhi High Court, were found guilty of criminal contempt under the Act as a result of being found to be guilty of tampering a witness in the famous BMW hit-and-run case and the Delhi High Court in its judgement of 21st August, 2008 recommended to the Full Court to strip the contemnors of the designation. The Supreme Court, in appeal, upheld R.K. Anand's conviction but cleared I.U. Khan of the charges. What is important to note in this particular instance is that even at the prima facie stage where the High Court was of the opinion that R.K. Anand and I.U. Khan were guilty of contempt, it did not refer the matter to the Full Court for stripping them of the Senior Advocate designation. Only once the guilt was determined, after hearing the parties extensively, did the High Court recommend to the Full Court that the two contemnors be stripped of their senior designations. Hopefully, the Gujarat High Court will be mindful of this particular procedural nuance before placing the matter regarding the removal of Mr. Yatin Oza's Senior Advocate designation in front of the Full Court for its consideration before a determination of Mr. Oza's guilt by the appropriate bench. There can be no denying that free speech is an integral part of our lives and dissent makes up a chunk of that speech and one is reminded of the encouraging words of Justice D.Y. Chandrachud that, "dissent is a safety valve of democracy", one can only hope that the saga of Mr Oza will end on a positive note.