Institute of Legal and Management Studies

At times, we wish that certain judges never had to retire. Justice Abhay S Oka is one of such judges. Bold, independent, fiercely loyal to the rule of law, unhesitant to hold power to account, and always upholding the Constitution, Justice Oka was a judicial star who brightened up the judiciary's stature even when it was facing various credibility challenges.

The first time this author heard about Justice AS Oka was in 2013, on reading about an interesting judgment he delivered as a Judge of the Bombay High Court quashing the suspension of an atheist teacher for not folding hands during a school prayer. "Here is a bold judge with an independent mind," I thought and started keenly following Justice Oka's judgments ever since, and saw a consistent pattern of him upholding civil liberties contrary to State incursions and majority sentiments, which was commented upon in a 2017 article.

When Justice Oka was elevated to the Supreme Court in August 2021, this author had commented that he has an excellent record of protecting citizens' rights and enforcing State accountability, based on his performance as a Judge of the Bombay High Court and as the Chief Justice of the Karnataka High Court. It can be undoubtedly said that he followed the same record during his tenure of nearly four years in the Supreme Court.

Justice Oka ranks among the most industrious judges of recent times, having delivered several reportable judgments on a wide variety of topics, with a high disposal rate. He rarely took leave and sat through the full court hours diligently. Even after the passing of his mother, he returned the next day to work, to deliver as many as ten judgments on his last working day.

The speciality of Justice Oka's judgments was their plain and straight talk, without unnecessary verbosity and literary pretensions. They got directly to the heart of the matter and conveyed the dictum directly in a manner which any commoner can understand.

Protector of free speech and personal liberty

Justice Oka was a rare voice of reason amidst a general atmosphere of majoritarian frenzy. Consider his judgment in Javed Ahmad Hajam v. State of Maharashtra, which quashed the criminal cases against a Professor over WhatsApp statuses criticising Article 370 abrogation and wishing Pakistanis on their independence day. “Democracy will not survive if every criticism is seen as an offence,” Justice Oka said while holding that there was no offence in criticising the abrogation of Article 370. As regards extending wishes on Pakistan Independence Day, the judgment held that wishing the citizens of another country cannot be seen as an offence. More importantly, the judgment also stated, “Motives cannot be attributed to the appellant only because he belongs to a particular religion”. Such lucid logical reasoning, without succumbing to any jingoistic fervour, was possible only from a judge with a steely resolve and unequivocal commitment to the Constitution.

Another shining example is the judgment in Imran Pratapgarhi which quashed a Gujarat police FIR against a Rajya Sabha MP over sharing a poem. The message of the poem was in fact non-violence, the judgment noted with a sense of irony, aghast at the Police invoking criminal offences over it and the High Court refusing to quash it. The judgment, authored by Justice Oka, reminded police officers of their duty to protect Constitutional rights. Also, Judges have to protect free speech, even if they don't agree with the content. “The effect of spoken or written words cannot be judged on the basis of standards of the people who always have a sense of insecurity or those who always perceive criticism as a threat to their power or position,” Justice Oka wrote. To prevent future abuses, the judgment also mandated a preliminary enquiry by a senior officer before registering FIR over speech-related offences.

His commitment to the cause of personal liberty can be seen in Parvinder Singh Khurana v. Directorate of Enforcement, where the Court deprecated the High Courts casually staying the bail orders passed by trial courts. In Jalaluddin Khan, it was observed that bail is the rule even in special statutes like UAPA bail is the rule. Recently, he observed that people can't be put in jail simply on the basis of their ideology.

Putting reins on the ED

Justice Oka authored several judgments putting certain reins on the Enforcement Directorate amidst widespread concerns about the free run it was enjoying due to the stringent provisions of the Prevention of Money Laundering Act. His judgments tightened some gaps in PMLA, reducing the scope of arbitrariness.

The judgment in Pavana Dibbur, which held PMLA cannot be invoked alleging criminal conspiracy for an offence which is not a scheduled offence, put a pause on the shrewd practice of ED invoking PMLA through the route of Section 120B IPC. In Tarsem Lal, it was held that the ED cannot arrest a person once the Special Court has taken cognizance of a PMLA complaint and that an accused appearing as per summons need not satisfy the twin conditions under Section 45 for bail. In Bibhu Prasad Acharya, it was held that sanction is necessary to take cognisance of a PMLA complaint against a public servant. The judgment in Sarla Gupta held that a PMLA accused is entitled to know what are the materials (unrelied materials) which were given up by the ED while filing the complaint. The recent order holding that a PMLA accused is entitled to hearing before cognizance is taken of the complaint as per the BNSS is also noteworthy.

Justice Oka, on many occasions, has openly questioned the low conviction rates of the ED and its tendency to make arrests by simply making allegations without any evidence. "Concept of PMLA cannot be to ensure that a person should remain in jail indefinitely,” Justice Oka said in a hearing.

Protecting the marginalised

Justice Oka's compassion for the marginalised is evident from his judgment in Maniben Maganbhai Bhariya versus District Development Officer Dahod, which held that Anganwadi workers are entitled to benefits under the Payment of Gratuity Act. In the judgment, Justice Oka specifically hailed the contributions made by Anganwadi workers to implement the National Food Security Act and the Right to Education Act, and bemoaned the paltry honorarium being given to them.

Justice Oka made strong intervention in the Muzaffarnagar student slapping case, slamming the Police for its weak FIR and reminding the State that quality education will suffer if a student is penalised on the basis of religion. Recently, his bench directed the State to bear the educational expenses of the victim-child.

In Zulfiquar Haider, his bench came down heavily on the UP government authorities for the demolition of homes of six families and directed the payment of interim compensation of Rs 10 lakhs each.

Champion for environmental protection

In Vanshakti, Justice Oka's judgment restrained the Central Government from granting post-facto environmental clearances and quashed the notifications which regularised the projects, which commenced without the mandatory prior ECs. Last year, his judgment quashed the Centre's notification which exempted EC for linear projects.

In the MC Mehta case, Justice Oka's bench passed several strong orders to address the issue of air pollution in Delhi-NCR and stubble burning. “No religion encourages any activity which creates pollution,” Justice Oka observed while ordering firecracker ban amidst the severe air quality crisis in the national capital. Even while suspending the construction activities in Delhi-NCR to curb air pollution, his bench ensured that the workers are not left in the lurch and directed the States to ensure their sustenance using the welfare funds.

In the matter related to illegal tree felling in the Delhi's ridge forest area, Justice Oka's bench called out the bluff of the Delhi LG (who is the Chairperson of the Delhi Development Authority) and found out that it was he who had ordered the trees to be felled without the permission of the Court. The Delhi LG almost faced the risk of contempt process from Justice Oka's bench, before the matter got transferred to another bench.

Stickler of judicial discipline

Justice Oka firmly believed in judicial discipline and disapproved of the attempts by Judges to indulge in moral policing and making unwarranted comments. “Judges are not expected to express their personal opinions or preach,” Justice Oka wrote in In Re : Right to Privacy of Adolescent while setting expunging certain remarks made by the Calcutta High Court on teenagers' sexual behaviour.” Function of the court is not to do moral policing,” he wrote in another recent order, disapproving of the High Court making comments against two petitioners for their speech despite quashing the criminal case against them. Directions such as judges cannot retain case-files after retirement to release judgment, and that High Court cannot recall an order without giving notice to the parties are lessons to judges that they cannot act as per their whims and should follow discipline.

Justice Oka also came down heavily on advocates for their misconduct. The false statements made by a Senior Advocate ultimately led to the revisitation of the senior designation norms in Jitender @ Kalla. Senior designation cannot be the monopoly of a few, Justice Oka wrote, while opening the doors for lawyers practising in trial courts and tribunals to be designated as senior advocates. The judgment reminded that Advocates-on-Record cannot act as mere mouthpieces of their clients and that they are liable for any false statement made in the Court.

Bar associations who call for court boycotts in the name of protests have faced contempt proceedings from Justice Oka's bench on several occasions. One such case led to another interesting development. While dealing with the boycott of DRT advocates in Visakhapatnam, Justice Oka-led bench noted that DRT staff were being employed by the Ministry of Finance for other data-collection jobs, which was causing delay in the functioning of the tribunals. Justice Oka made a strong intervention, reminding the Ministry of Finance that DRT staff are not their employees, following which the Ministry withdrew the practice.

Concerned with the mounting criminal appeals in High Courts (over 7 lakhs), Justice Oka recently stressed the need to fill up High Court vacancies and made a judicial observation that the Centre should process Collegium recommendations at the earliest. Further, several practice directions have been issued to obviate the procedural delays at High Courts in listing criminal appeals.

His other quality is that, unlike many other judges, he doesn't believe that judges should be occupying a high ivory tower, distant from the common man's daily lived realities and shielded from public criticism. Showing deep self-awareness, he said on multiple occasions that the common people's faith in the judiciary was eroding and called for introspection.

He has also disapproved of the judiciary's tendency to curb public criticism using the power of contempt. In Wikimedia Foundation v ANI Media, his bench (judgment authored by Justice Oka's colleague Justice Ujjal Bhuyan) observed that it is not the duty of the Court to tell the media what should be reported and what should be deleted.

Going against popular sentiments, he denounced the performance of religious rituals like poojas in Court events, and said that if a ritual is necessary, then it must be the bowing to the Constitution.

Justice Oka adorned the bench at a crucial juncture when there were widespread concerns about the crumpling of independence and erosion of public confidence in the system. His presence offered a steadying reassurance amid these unsettling times, a balm to the many wounds inflicted on the Constitution. As his judgments exemplify, he acted with honesty, integrity, independence and courage, without any sort of agenda or compulsion to please anyone. The unfortunate reality which haunts the Indian judiciary today is that judges like Justice Oka are very rare. That is why his retirement is an extremely sad occasion. One can only hope that Justice Oka's distinguished legacy will inspire several other judges to tread the path of independence and courage.

The author is the Managing Editor of LiveLaw. He can be reached at [email protected]