Jurisprudence Of Apology … A Lesson To Be Learnt

Kashyap Joshi

29 Aug 2020 5:30 AM GMT

  • Jurisprudence Of Apology … A Lesson To Be Learnt

    See the irony of our Indian Legal Profession and Judiciary: In a case of Senior Advocate Prashant Bhushan: the Supreme Court was asking: "What is bad in apology? If you are hurting someone, then what is wrong in apologizing? You should apply balm if you have caused hurt…" Whereas in a case of Yatin Oza, the Gujarat High Court has held in Suo Motu v. Yatin Narendra Oza: '…...

    See the irony of our Indian Legal Profession and Judiciary:

    In a case of Senior Advocate Prashant Bhushan: the Supreme Court was asking: "What is bad in apology? If you are hurting someone, then what is wrong in apologizing? You should apply balm if you have caused hurt…" Whereas in a case of Yatin Oza, the Gujarat High Court has held in Suo Motu v. Yatin Narendra Oza: '… The school of thought of "Give slap, say sorry and forget" was not endorsed to by the Supreme Court in L.D.Jaikwal v. State of U.P. [(1984)3 SCC 405]'. Not only that, but the Gujarat High Court has invoked the jurisprudence of apology based on several decisions of the Supreme Court in past and present, and refused to accept the unconditional apology tendered by Yatin Oza.

    It is to be reminded that: on 21-7-2020, the Full Court of High Court of Gujarat has also notified that it has unanimously reviewed and recalled the designation of Mr.Yatin Oza as Senior Advocate. Mr.Oza is the President of the Gujarat High Court Advocates' Association and facing charges under the Suo motu Criminal Contempt by order dated 09-6-2020[i] of the Division Bench of the High Court of Gujarat for his utterances, allegations and assertions in Live Press Conference dated 05-6-2020 (available on Facebook).

    Now, the Full Court of Gujarat High Court has already declined to accept the apology in his plea to re-confer his Senior Counsel Gown.

    The first judicial order dated 09-6-2020 of the Division Bench has inter alia directed [the direction no. (4)] that: "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 counsel under the circumstances." In the wake of above, the Full Court in its meeting dated 18-7-2020 took the above decision in exercise of powers conferred under Rule 26 of the High Court of Gujarat – Designation of Senior Advocates, Rules, 2018 and subsequently, after hearing Mr.Oza with his counsels, it has not accepted his unconditional apology for reconsideration of the same. Though, the petition challenging the abovementioned rule-26 is pending before the Supreme Court.

    It is interesting to note that in the recent order, the High Court of Gujarat has used the curious metaphor while passing the order that '… Every time scurrilous remarks against the Judges and the institution are made and when he realizes that there is no escape route, the weapon of unconditional apology comes to his rescue. This was permitted in the past upkeeping a rich tradition of Kshma Virsya Bhushanam (forgiveness is the jewel of the heroes) showing magnanimity every time he acted, even hoping, trusting and believing in the wise words that every saint has a past and every sinner a future, not only it has emboldened the person to go on attacking the institute with more fervency, if still permitted, this institution would be inviting for itself more and many such unsubstantiated, unsustainable and baseless attacks from various quarters.' (Emphasis is of the author)

    Concept and perception of forgiveness and apology differs from person to person and more particularly, from the point of view of Giver (tendering) and Taker (accepting). Normally, apology is an expression of regret for something done or not done. However, in a case of Prashant Bhushan, when Justice Mishra asked the Attorney General: What is bad in apology? The AG said: 'Admission of guilt is perhaps what it feels like.' So, in a Criminal Contempt Case, apology can also be treated as an acknowledgement of an offence or failure to keep the standard, for which someone is expected. However, when one has confessed, it is up to authority to decide to take it, forgive or reject.

    Apologizing generally means: you have committed something wrong, but at the same time it also means that you value the other more than your ego.

    The Gujarat High Court, however, has dissected the entire notion of apology by framing the questions with regard to what amounts to bona fide apology. It is observed that '… There appears to be no guidance or parameters under Section 12 or under the act in this regard although the evolved standards are by judicial pronouncements, which are submitted by the Amicus Curiae.

    • Whether the apology is tendered at the first available opportunity or at the earliest point of time?
    • The language of apology, whether it is conditional or unqualified/unconditional and whether is it filled with remorse/contrition?
    • Is apology bona fide or tendered to escape the route of punishment?
    • Is the act of contempt done for the first time or is that a repeat performance?'

    Aforesaid enlisted questions have not been answered separately, but the reasoning and findings cover almost all the aspects arising above. It appears that the High Court has firmly, but with heavy heart passed the order for not accepting the unconditional apology, as it is deeply hurt by the utterances, allegations and assertions.

    It is a common knowledge of all that conduct of a person accompanies by so many things: compliments and supplements escorted by behavioral patters, actions and convoys by thoughts and ideas. It derives from beliefs, impressions, opinions, viewpoints and surrounding factors of a particular person. No one can exactly explain the conduct of another in a particular/given situation. Higher courts frequently use the words in certain cases either to justify its reasoning or to mold the relief i.e. 'in a peculiar set of facts'. Supreme Court does it for 'doing complete justice in any cause or matter pending before it …' (Article-142 of the Constitution).

    However, there is a very thin line between the subjective satisfaction and objective determination. Therefore, the Senior Advocate Mr.Datar submitted in Mr.Oza's case that: 'each contempt is unique …'. The High Court, however, has adjudicated the aspect of apology in its detailed analysis by incisive finding and rejected it. Yet, any apology has two sides. A Moral and A Legal. One's conscience may convince him/her morally, when someone asking for mercy, but as part of authoritative institute, the Court has thought it fit to determine the bona fides of apology by giving legal reasoning and used its discretion as mentioned in Khudiram Das vs. The State of West Bengal [1975(2) SCC 81], where the Apex Court has quoted the famous words of Lord Halsbury in Sharp v. Wakefield: " … when it is said that something is to be done within the discretion of the authorities … that something is to be done according to the rules of reason and justice, not according to private opinion … according to law and not humor. It is to be, not arbitrary, vague, fanciful, but legal and regular."(Para-10) …

    Nevertheless, the above is also again subject to pending petition before the Supreme Court, where it will be tested … and this order, if challenged, it will be interesting to see how aspects of apology will be more unfolded and further described... At last, a quote from Benjamin Franklin is to be remembered: 'Never ruin an apology with an excuse.'

    Views are personal only.
    (Author is an Advocate practising at the High Court of Gujarat)

    [i] R/Criminal Misc. Application No.8120 of 2020

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