Case BriefsHigh Courts

Orissa High Court: A Division Bench of Chitta Ranjan Dash and Pramath Patnaik JJ. held sub-rule (9) of Rule- 6 of the High Court of Orissa (Designation of Senior Advocate) Rules, 2019 as ultravires of the guidelines/norms framed in para 73 in Indira Jaising case.

The facts of the case are such that Orissa High Court, in exercise of the power under Section-16(2) read with Section-34 of the Advocates Act, 1961 and the guidelines framed by Hon’ble the Supreme Court in Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766. The Orissa High Court issued an Advertisement inviting applications from the eligible Advocates to be conferred with the designation of “Senior Advocates” and after thorough scrutiny names of Opposite Party 5 to 9 were considered conferring them with designation of “Senior Advocate” by invoking it’s suo motu power under sub-rule (9) of Rule-6 of “2019 Rules”. Impugning conferment of the designation of “Senior Advocate” on Opposite Party 5 to 9 and issuance of Notification dated 04.09.2019 which calls for applications afresh from the eligible Advocates after conferring designation of “Senior Advocates” on Opposite Party 5 to 9, the present writ petitions was filed by 4 advocates.

Issues

(I) Whether the petitioners have locus standi to maintain the writ petition?

Counsel for the petitioners submitted that the designation of the Opposite Party 5 to 9 as “Senior Advocates” by adopting pick and choose method and completely discriminated against the petitioner. It is submitted by him that the action of the Permanent Committee and the Hon’ble Full Court is violative of Article- 14 of the Constitution of India, “2019 Rules” and Section- 16(2) of the Advocates Act.

Counsel for the respondents submitted that the petitioners do not have any locus standi to maintain the writ petition as the impugned Notification dated 19.08.2019 designating the Opposite Party.5 to 9 as “Senior Advocates” does not operate as a decision against the petitioners, much less affects them.

The Court observed that being advocates they have a vested and existing right to call in question the rule which creates a separate group within a particular group, more so, when such creation of group by invoking a particular rule is not in consonance with the guidelines laid under Indira Jaising[supra]. It was further observed that as the petitioners are applicants for their private cause, the doctrine of aprobate and reprobate cannot be applied strictly to the facts of the case especially in view of the nature of the lis but the validity of sub-rule (9) of Rule-6 of “2019 Rules” has to be examined to find out whether the same is in consonance with the guidelines of Hon’ble the Supreme Court framed in Indira Jaising case irrespective of the fact who brought the matter before the Court, hence the petitioners have the locus standi to maintain the writ petitions.

(II) Whether the Orissa High Court could have designated Respondent 5 to 9 as “Senior Advocates” in exercise of its suo moto power under sub-rule (9) of Rule-6 of “2019 Rules” as laid down in Indira Jaising case [supra]?

After perusing the landmark judgment, the Court observed  that “2019 Rules” is to be examined in the touchstone of the guidelines formulated in Indira Jaising case [supra].While framing the guidelines, Supreme Court has specifically held that the norms/ guidelines, in existence, shall be suitably modified so as to be in accord with the present and this power lies only with Supreme Court and no other High Court has any power to add or delete from the guidelines

The contentious Sub-rule (9) includes three sources by which applicant advocates can be chosen as “Senior Advocates”:-

(1) Proposal from the Hon’ble Judges;

(2) Application from the Advocate concerned and

(3) Exercise of suo motu power in respect of an Advocate even without any proposal from the Hon’ble Judges or application from the Advocate concerned, if the Hon’ble Full Court is of the opinion that, by virtue of his/her ability or standing at the Bar, the said Advocate deserves such designation

The Court observed that the exercise of suo motu i.e. the third source mentioned under Sub rule (9) has consciously not been included in the guideline framed in Indira Jaising case [supra].

Quoting para 70 from Indira Jaising case [supra].

“xxxxxxxx The credentials of every Advocate who seeks to be designated as Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

The Court observed that an advocate who seeks to be designated means an advocate who files an application for being designated, stands apart, from him on whom the Hon’ble Full Court suo motu decides to confer the honour. The word “or” in between the words “Advocate” and “whom” has been used as a conjunction, which is a function word to indicate an alternative. Having discussed this suo motu power in paragraph- 70, Hon’ble the Supreme Court in paragraph- 73.4 has ipse dixit not stated anything about the pick through suo motu source. Such silence in paragraph-73.4, according to our understanding is a conscious silence.

The Court thus held “sub-rule (9) of Rule- 6 of “2019 Rules” is an addition beyond the scope of the guidelines/norms framed in paragraph-73 of the Judgment in Indira Jaising case. Therefore, sub-rule(9) of Rule- 6 of “2019 Rules” is not in consonance with the said Judgment and ultravires of the guidelines/norms in our considered view.”

It was further held that “Opposite Party Nos.5 to 9 having been graced by the Hon’ble Full Court with the designation of “Senior Advocate”, we do not want to disgrace them at present by withdrawing the designation, as there is no fault on their part in the entire exercise.”

In view of the above, petition was disposed of.

[Banshidhar Baug v. Orissa High Court, 2021 SCC OnLine Ori 484, decided on 10-05-2021]


Arunima Bose, Editorial Assiatnt has put this report together 

Counsel For Petitioner : Adv. Bansidhar Baug(In person)

Counsel For Opp. Party 1 and 3: Adv. Sanjit Mohanty and Adv. I.A. Acharya

Counsel For Opp. Party No.5 : Adv. Gouri Mohan Rath, Adv. A.C. Panda, Adv. M. Agarwal, Adv. S.S. Padhi, Adv.  S.D. Ray, Adv.  P.P. Behera &  Adv. A. Mishra.

Counsel For Opp. Party 6: Adv. P. Ramakrishna Patro and Adv. A.K. Samal.

Counsel For Opp. Party 7, 8 & 9: Adv. Debasis Nayak, Adv. A. Mishra, Adv. M. Agarwal and Adv. P.P. Behera.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has said that it would wait for the order of the Gujarat High Court before passing any orders in the issue relating to withdrawal of senior Designation of advocate Narendra Oza.

The Gujarat High Court had, on August 26, 2020, rejected the request for restoration of the gown of the senior counsel and had rejected the apology offered by Oza. The matter has been listed for further consideration September 17, 2020. Taking note of this fact, the bench said,

“On hearing learned counsels for the parties, we are of the view it would be appropriate that both aspects are taken together after the orders are pronounced in the contempt petition. List on 29th September, 2020, at the end of the Board.”

The Court gave liberty to the Oza’s counsel to serve a copy of the appeal, in case Oza is aggrieved by the orders in the contempt petition and of sentence, if any, on the counsel for the High Court and if the same is served well in advance, response to the same can be filed by the High Court.

The bench of SK Kaul and Ajay Rastogi, JJ had earlier, on August 6, 2020, said,

“Grievances may exist but can always be conveyed in a better language. Systems can be improved but imputations should not unnecessarily be made.”

Noticing that the contempt proceedings are still pending and in view of his unconditional apology both before the Full Court, the contempt proceedings and before the Supreme Court, the bench had considered it appropriate that the contempt court itself first applies its mind to the issue.

Oza, who is also the the President of the Gujarat High Court Advocates’ Association, was stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court. The Court cited Rule 26 of the High Court of Gujarat (Designation of Senior Advocates) Rules 2018, which states “In the event a Senior Advocate is found guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same”. Read more

[Yatin Narendra Oza v. High Court of Gujarat, 2020 SCC OnLine SC 724, order dated 09.09.2020]


Also read:

Gujarat HC withdraws GHCAA President Yatin Oza’s Senior Advocate status

Guj HC | Mere apology may be no reason to an act, utterance or publication of contempt which scandalize the majesty of Court; Advocate Yatin Oza’s unconditional apology rejected

Guj HC | President GHCAA levelled allegations of corruption, malpractices against HC Registry & called this August Institution a ‘Gambling Den’; Contempt Proceedings initiated

Yatin Oza offers unconditional apology; SC says one can improve system without imputations

Full Court of Gujarat HC rejects Yatin Oza’s unconditional apology and denies to re-confer his Senior Advocate Designation

Case BriefsSupreme Court

“Grievances may exist but can always be conveyed in a better language. Systems can be improved but imputations should not unnecessarily be made.”

Supreme Court: In the case, where Gujarat High Court had withdrawn the Senior Advocate status of advocate Yatin Oza after he had levelled charges of corruption against the registry of the Gujarat High Court, the bench of SK Kaul and Ajay Rastogi, JJ deferred the matter for 2 weeks and said that

“as a leader of the Bar and as a senior member, a far greater responsibility is expected of him to not only be more restrained but also to guide the younger lawyers in these difficult times.”

The Court was apprised of the fact that Oza has been a leader of the Bar and has made considerable contribution but at times has exceeded his brief in expressing his sentiments in a language which is best avoided. This appears to be another incident of the same nature as in the past.

Oza, however, told the Court there was an unqualified apology even before the Full Court and before the Court seized of the contempt matter. He submitted that his statements were uncalled for which he deeply regrets and assured not to ever in future repeat such conduct.

On this the Court noted,

“the petitioner himself has been quite apologetic before us and states that he should not have used the words he used and those words were used in the heat of the situation where everybody is troubled by the prevailing problem of Covid and the grievances of the younger members of Bar.”

Noticing that the contempt proceedings are still pending and in view of his unconditional apology both before the Full Court, the contempt proceedings and before the Supreme Court, the bench considered it appropriate that the contempt court itself first applies its mind to the issue.

Oza said that he has no hesitation in saying that he has apologized unconditionally and will apologise unconditionally in the contempt proceedings and pray for bringing to closure those proceedings. He said that he will also make a representation to the Full Court stating that the deprivation of his gown for the existing period already is sufficient punishment for him and he stood chastened and that the Full Court may reconsider the aspect of the restoration of the senior’s gown rather than depriving him for all times to come.

The Court, hence, deferred the matter by two weeks in the hope that, in the meantime, a finality would be given to the matter by the contempt court. The matter will now be heard on August 26, 2020.

Advocate Yatin Oza, who is the president of the Gujarat High Court Advocates’ Association (GHCAA) was stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court. The Court cited Rule 26 of the High Court of Gujarat (Designation of Senior Advocates) Rules 2018, which states “In the event a Senior Advocate is found guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same”. Read more

[Yatin Narendra Oza v. High Court of Gujarat, 2020 SCC OnLine SC 628, order dated 06.08.2020]


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Hot Off The PressNews

Advocate Yatin Oza, who is the president of the Gujarat High Court Advocates’ Association (GHCAA) has been stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court. The Court cited Rule 26 of the High Court of Gujarat (Designation of Senior Advocates) Rules 2018, which states “In the event a Senior Advocate is found guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same”.

On June 10,  the following allegations were made by the President of GHCAA against the registry of Gujarat High Court in a live press conference held by him:

  1. corrupt practices being adopted by the registry of the High Court of Gujarat,
  2. undue favour is shown to high-profile industrialist and smugglers and traitors,
  3. The High Court functioning is for influential and rich people and their advocates,
  4. The billionaires walk away with order from the High Court in two days whereas the poor and non VIPs need to suffer,
  5. if the litigants want to file any matter in the High Court person has to be either Mr Khambhata or the builder or the company. This also was circulated in Gujarati daily Sandesh titled as ‘Gujarat HighCourt has become a gambling den – Yatin Oza

Subsequently, the Division Bench of Sonia Gokani and N.V. Anjaria, JJ., initiated suo motu contempt proceeding,[1] stating that it was an extremely unfortunate event, wherein fingers had been raised against the High Court, Administration of High Court and Registry by irresponsible, sensational and intemperate delivery in an interview by the President of Gujarat High Court Advocates’ Association. The Court further noted that President of GHCAA had made serious allegations of corruption against the registry and also categorically alleged forum shopping in no uncertain terms without any valid, significant or true basis. The Court noted that, Advocate Oza had questioned the very credibility of High Court Administration and raised fingers at some of the Honourable Judges indirectly with scandalous remarks of a few Advocates being successful in getting their matters circulated in three courts and also getting contemplated orders.[2] The Court found him responsible for committing the criminal contempt of thus Court under Section 2(c) of Contempt of Courts Act and took cognizance of the same under Section 15 of the said Act.

As reported by Indian Express, Advocate Oza subsequently challenged the High Court order before the Supreme Court. He contended that the Gujarat High Court had “committed grave error in taking cognizance and issuing a notice without adherence to Rule 11 of the Contempt of Courts (Gujarat High Court) Rules, 1984 which requires that court can only record reason and then refer it to the Hon’ble Chief Justice for it being placed before the Bench having the said Roster.” However, after the top Court orally expressed its disinclination to entertain the plea, Oza withdrew his petition before the Supreme Court.


Photo Credit: Ahmedabad Mirror

[1] Suo Motu v. Yatin Narendra Oza, 2020 SCC OnLine Guj 856 , decided on 09-06-2020

[2] https://www.scconline.com/blog/post/2020/06/10/guj-hc-president-ghcaa-levelled-allegations-of-corruption-malpractices-against-hc-registry-contempt-proceedings-initiated/

Appointments & TransfersNews

F.No. J-11013/7/2016-Judicial—The President is pleased to re-appoint Shri Atma Ram Nadkarni, Senior Advocate as Additional Solicitor General of India in the Supreme Court of India with effect from 10.05.2019 till 30.06.2020, or until further orders, whichever is earlier.


[Notification dt. 14-05-2019]

Ministry of Law and Justice

 

Hot Off The PressNews

Making Senior Advocate Indu Malhotra the first woman lawyer to be directly elevated to the Bench, Centre has cleared her name for appointment as the Supreme Court Judge. She is likely to take oath on 27.04.2018.

On 10.01.2018, the Supreme Court collegium, comprising of the five senior-most judges, had recommended the names of Uttarakhand Chief Justice KM Joseph and Indu Malhotra for elevation to the Supreme Court. While the Centre has cleared Indu Malhotra’s name, it is still silent on Justice KM Joseph’s elevation.

In the last 70 years of independence, Indian Supreme Court has seen only 6 women judges, namely, Justice M Fathima Beevi, Justice Sujata V Manohar, Justice Ruma Pal, Justice Gyan Sudha Misra, Justice Ranjana Prakash Desai and Justice R. Banumathi. Currently, Justice Banumathi is the only woman judge in the Supreme Court. Indu Malhotra, who joined the bar in the year 1983, will be the 7th woman judge. She qualified as an Advocate-on-Record (AoR) in the Supreme Court in 1988 and was designated as a senior advocate in 2007, only the second woman to be designated a senior advocate by the Supreme Court, after Justice Leila Seth.

While the appointment of Indu Malhotra has been applauded, many Senior members of the Bar have urged CJI Dipak Misra to block her appointment till Justice KM Joseph’s name is cleared. Senior Advocate Indira Jaising took to twitter to show her dismay over non-clearance of Justice Jospeh’s name. She tweeted:

“I appeal to the Chief Justice of India not to swear in Indu Malhotra until Justice Joseph is cleared for appointment , independence of the Judiciary must be saved at all cost.”

In another tweet, she said that if Indu Malhotra is sweared in as the Supreme Court judge, it will be illegal:

“As of now there is no collegium decision to appoint Indu Malhotra alone , hence a judge is about to be sworn in illegally , another collegium decision needed to swear her in alone to legalise her appointment , will the Chief Justice stand for independence of the judiciary please.”

Advocate Vikas Singh, President of the Supreme Court Bar Association, welcomed Indu Malhotra’s appointment, calling her a fine lawyer & a promising judge. However, on Centre’s silence on Justice KM Joseph, he said:

“I have huge reservation at the attitude of the government, there is no way by which they should not have cleared Justice KM Joseph’s name. By making one appointment and not making another, the government has interfered in functioning of the judiciary. This is a very serious matter and should be taken up with the government very strongly.”

(With inputs from DNA and ANI)

Hot Off The PressNews

The highest Court of Justice in India has been witnessing quite a few episodes since a couple of months. In the most recent and shocking turn of events, Senior Advocate Rajeev Dhavan has called it a day and has decided to quit Court practice after the “humiliating end” to the NCT of Delhi v. Union of India statehood case.

In a letter addressed to the Chief Justice of India, Justice Dipak Misra, he wrote:

“After the humiliating end to the Delhi case, I have decided to give up court practice. You are entitled to take back the Senior gown conferred on me, though I would like to keep it for memory and services rendered.”

As per reports, on the last day of hearing in the matter, a heated exchange took place between the Senior Counsel and CJI. According to Rajeev Dhavan, the Constitution Bench was not allowing him to articulate his propositions. The angry 5-judge Constitution Bench, headed by CJI, said:

“Lawyers are called the ministers of justice. They are also referred to as officers of the court. But unfortunately, a small group of lawyers raise their voice. They must understand absolutely clearly that raising their voice is not going to be tolerated. Raising the voice means either the lawyer is incompetent to present the case or he is inadequately prepared with the case.”

Source: Outlook India

ObituariesOP. ED.

It is common for high praise and tribute to follow the passing away of anyone. Often, the image that is created is larger than life, and flawless. Such hagiography, while bringing a measure of comfort to the bereaved, does disservice to a life that was lived in full measure. It would be expected then that what follows would be a wart-ridden account of a man. It probably would have been, had that man not been M.N. Krishnamani.

For those who have been privy to the video of MNK speaking from his hospital bed a few days before his demise, his stoic acknowledgment of his impending fate and the dignity of his demeanour reflected him in full measure. He would not have been blamed for tears, or an uncharitable word. But he had none. His life, he said, had been a full one without regrets, and he was confident that he had never committed a bad deed. Childlike it may be, but such a sentiment showed the simplicity with which he viewed life till the end.

At least three versions of MNK’s biodata would be read out in his Full Court Reference, and I will therefore avoid talking about when he graduated and when he was designated, not least because these would have been irrelevant to him. Uniformly courteous, good-natured and compassionate, MNK’s lasting impression at the Supreme Court Bar (which he presided over many times) would be of one who was always available to help a person in need. He made it a point to raise funds and donations for those advocates and their families who were in dire need because of a health or family crisis. He literally harangued the well-heeled seniors to part with donations and to accommodate youngsters looking for chambers. He was always eager to take up pro bono causes, especially those concerning the indigent and the exploited.

Universally, to those who knew him earliest from the chambers of M.K. Nambyar and later K.K. Venugopal, he was regarded as a spiritual savant. Rohinton Nariman referred to him often as a “saint”. To P. Chidambaram, he was a “very good man”. Even his senior, K.K. Venugopal referred to him as “my guru”, showing how those older to him would consider MNK a moral compass.

For many years, the leaders of the Madras Bar had avoided shifting to practise in the capital, partly due to the cultural gulf and partly due to the uncertainty that such a move wrought. Venugopal was the first, a few years after his designation by the Supreme Court, and with him, C.S. Vaidyanathan. Encouraged by their success, M.N. Krishnamani followed his chamber mates, and in his wake the two Attorney Generals — K. Parasaran and G. Ramaswamy. Now, with hundreds of young lawyers not only from Chennai but across this great nation flocking to the Supreme Court, there has been a visible fillip to the practise, attributable largely to the pioneering efforts of those like MNK.

My first interaction with MNK can be traced to my early years at the Bar, courtesy a chamber dinner where (as is the custom) distinguished alumni made their presence. I had not encountered MNK earlier, mainly because of the low profile he maintained. Even in the years since, I  cannot recall a single television appearance of his or a quote to a publication. What I cannot forget was the manner in which he greeted me—warm and deeply affectionate, here was a man who wanted you to know that you meant something to him. Why a raw junior would evoke such a sentiment was a mystery, especially when that raw junior was me!

I wondered, as one would, whether this was just politeness on his part. Who would blame him for ignoring me the next day? To the contrary, not only did he wring my hand vigorously on the morrow (as well as remember my name), but he also gently urged me into a chair in the coffee shop where he plied me with some hot brew while exploring my past.

In those fleeting moments a lifetime ago, I realised why MNK was who he was—he was not flamboyant or larger than life. He was a compassionate soul who treated all others as equals, meriting respect, regardless of age or gown. It was in this that MNK transcended all the various complexes and charades at the Bar—he cared none for ego battles and luxury cars and badges of honour, choosing instead a path of spiritual learning, which finally brought him to Satya Sai Baba’s embrace. As Senior Advocate K.V. Viswanathan says—“he walked with kings but never lost the common touch”.

Later, as a co-trustee on the Supreme Court Lawyers’ Welfare Trust, all of us banked on MNK to give guidance on which were the deserving cases of advocates that required our assistance. While some of us discharged the simple task of signing cheques, it was MNK who, of his own volition, visited the bedsides of suffering advocates and held the hands of their family members. He listened with patience as others bemoaned the fate of a loved one and was swift to reach for his wallet. Those who remember earlier Bar functions would recall the slight figure of the late Mr Gupta  on each occasion, his coat pockets swelling with pens of every hue. Once again, as he battled a debilitating disease, it was MNK who was a pillar of support till the end. There are countless such incidents which each member of the Bar would recount, but to those who were deprived of his munificence, this account attempts? to make modest amends.

I must hasten however to dispel the notion that MNK was soft or non-confrontational. For him, the institution was pre-eminent, and anyone who trifled with it would face his resistance, be it the Chief Justice of India (as the Sahara hearings evidenced) or a mere commoner. His rectitude and the high esteem with which the Judges regarded him ensured that he would regularly intervene when he felt the Bench was being harsh on a junior. Often he would rise from the third row to object to the manner in which a colleague was being treated, an attribute sorely absent in others of his ilk.

It is unfortunate that in his final years, his avowed spiritual path lent a saffron hue to how he was perceived. This is why he probably felt the need to point out in that last fateful speech that he was a devotee of all faiths and that he had even composed Bhajans on Allah and Christ.

I have deliberately avoided alluding to MNK’s prowess as an advocate, because it would be a great disservice to reduce an understanding of who he was to something as banal as his practise in court. His work outside the courtrooms undoubtedly outshone that of virtually everybody else within them, and it is in that space we find a yawning gap. As the Bard said — “When will we find another?”

Farewell, dear MNK—remember us to the angels with whom you share a table at the Great Coffee Shop in the sky.

_____

[Dr M.N. Krishnamani, Padam Shri, Senior Advocate, Supreme Court of India, Former President, SCBA, passed away on 15-2-2017. He was 68.]