Justice Abhay Sreeniwas Oka Has A Record Of Enforcing State Accountability & Protecting Citizens' Rights
Manu Sebastian
27 Aug 2021 10:53 AM IST
Justice Abhay Sreeniwas Oka, who is now elevated to the Supreme Court, has made several notable judicial interventions - both as a judge of the Bombay High Court and later as the Chief Justice of the Karnataka High Court - to protect the fundamental rights of the ordinary citizens against the excesses of the State. He has displayed a pro-people and a rights-based approach in his judicial...
Justice Abhay Sreeniwas Oka, who is now elevated to the Supreme Court, has made several notable judicial interventions - both as a judge of the Bombay High Court and later as the Chief Justice of the Karnataka High Court - to protect the fundamental rights of the ordinary citizens against the excesses of the State. He has displayed a pro-people and a rights-based approach in his judicial career so far, with no hesitation to question the actions of the State on the anvil of Constitutional principles.
A remarkable feature of his career is the effective use of the tool of 'dialogic judicial review' to course-correct the executive.
'Dialogic Jurisdiction' is a facet of judicial review, whereby constitutional courts seek to know the rationale behind executive policy decisions by raising questions and demanding explanations. At times, the dialogue initiated by the Courts exposes the constitutional infirmities of the policy to the public, and this results in the executive being nudged to retract the policy in question. Even without having to set aside the executive decisions, the courts can cause a course-correction using this method.
In numerous instances, Justice Oka has demonstrated that by simply asking the right questions and making the relevant observations, the judiciary can get the government to act. Actual directions may not be always necessary. This was particularly evident while dealing with the migrant workers crisis during the national lockdown last year. A bench led by Chief Justice A S Oka observed that the State has the constitutional obligation to mitigate the sufferings of migrant workers as they were a direct consequence of the lockdown imposed by it. The bench highlighted several lacunae in the state's policy regarding the migrants welfare. Following the sustained interrogation from the Court, the Karnataka Government made modifications in its policies regarding migrants.
Likewise, Justice Oka's critical observations made the Karnataka Government withdraw a notification issued by it to increase the working hours of factory workers and cut down their allowances amid the pandemic. The bench led by him pointed out that the notification was unsustainable under the Factories Act. Few months later, the Supreme Court echoed the views expressed by Justice Oka while quashing a similar notification issued by the Gujarat Government under the Factories Act.
Also, the Karnataka Government had to change its compensation policy for dependents of farmers who committed suicide by including those who borrowed from private lenders as well, after Justice Oka pointed out limiting compensation only to the dependents of those who borrowed from banks was discriminatory and unconstitutional.
Similarly, the restrictions imposed by Karanataka for inter-state travel from Kerala during COVID were modified after intense scrutiny by Justice Oka, who pointed out that they fell foul of the guidelines of Union Home Ministry.
Action against illegal eviction of migrants
Justice Oka's concern for the rights of the marginalized came to the fore when he took suo moto cognizance of the burning down of the huts of the migrants in Bengaluru during the lockdown. Stating that the incident revealed a failure on the part of state to protect the right to shelter, Justice Oka passed an order directing the government to reconstruct the destroyed huts of the migrants (this order was later stayed by the Supreme Court). Earlier, he had interfered with the move of the Bengaluru civic body (BBMP) for illegal demolition of migrants' settlements and had directed compensation for illegally evicted migrants.
Monitoring of COVID management
Chief Justice Oka's bench kept a constant monitoring of the COVID management in the State of Karnataka both during its first and second waves, and passed various orders to ensure optimum availability of hospital beds, vaccines, medicines etc. During the oxygen crisis in the second wave, Justice Oka's bench passed a bold order directing the Centre to increase the supply of medical oxygen for Karnataka to meet its allotted quota. This was passed in the wake of a shocking incident of patients at Chamrajnagar hospital dying reportedly due to oxygen shortage. The Supreme Court upheld the High Court's order, terming it "well-calibrated and judicious", as it was based on the very same formula evolved by the Centre for oxygen allocation.
Justice Oka has also come down heavily on the police for failing to stop political rallies and gatherings during COVID and directed penal action under the Epidemics Act against those who failed to follow pandemic protocol during such gatherings.
"Right to lead a healthy life cannot be obstructed by individuals who do not bother to follow the rules regarding masks, maintaining social distance, congregating etc", an order passed by Justice Oka stated.
Upholding ethics of legal profession
The bar association of Hubbali had to face the ire of Justice Oka's bench for passing resolutions against giving legal representation to students accused of sedition. The resolutions were passed amidst the turmoil created by the passing of the controversial Citizenship Amendment Act. Sending an unequivocal message that such actions by bar associations violate the professional oath of advocates, Justice Oka ordered police protection to those advocates who wished to represent the accused.
"If lawyers don't protect Article 22 (1) of the Constitution of India, who will then protect the legal system?" Justice Oka asked, while summoning the office bearers of the association.
"The resolution of the bar association sets a bad precedent. Calling the Kashmiri students criminals and anti-nationals when there has been no adjudication is wrong and shouldn't have been done. Everyone has the right to a fair trial and kangaroo trials are not permitted in the country", the bench led by him observed.
Following that, the bar association withdrew the problematic resolutions. The Court also directed the State Bar Council to take action against advocates who use their organized strength to frustrate the legal rights of the accused.
Justice Oka also made a personal appeal to the members of the bar to refrain from using court boycotts as a means of protest, when the judicial system was taking extra efforts to remain functional during the pandemic. Later, contempt actions were initiated against bar associations which called for court boycotts. Justice Oka made a stern statement that advocates cannot use court boycotts as a protest form, howsoever genuine their grievances are, as the ultimate sufferer was the ordinary litigant.
Stopping the withdrawal of criminal cases against MLAs/Ministers
Recently, the Supreme Court had barred the withdrawal of criminal cases against sitting and former legislators without the previous sanction of the concerned High Courts and requested the High Courts to scrutinize the cases already withdrawn from September 16, 2020. Even before this order of the Supreme Court, the Karnataka High Court had halted in December 2020 the move of the Karnataka Government to withdraw criminal cases against sitting MLAs and ministers. A bench led by Justice Oka stayed the operation of a government order for withdrawing criminal cases against legislators in December 2020 and called for the details of the cases already withdrawn on the basis of the said order.
Right to peaceful protest a basic feature of Constitution
Justice Oka's bench declared as illegal the curfew imposed by the Commissioner of Police in Bengaluru under Section 144 CrPC in the wake of anti-CAA protest gatherings. His judgment termed the fundamental right to peaceful protest a "basic feature of the Constitution" and held that the order passed by the Commissioner of Police did not indicate independent application of mind and failed the test of proportionality.
Action ordered against police officials who interrogated school kids over school drama against CAA
Recently, a bench led by Justice Oka observed that the police interrogation of school kids over a drama staged in the school against CAA was in violation of the Juvenile Justice Act and the rights of the children.
The bench noted that police officials in uniform summoned the students and interrogated them, which was in violation of the provisions of the JJ Act.
During the hearing, the bench orally said "If we condone this action, this will be repeated. We cannot condone such action at all."
The Bench added "Why children are subjected to all this? This has to be corrected, this can't go on like this". The bench ordered the state to place on record the action taken against the erring officials.Notable judgments passed as a judge of the Bombay High Court
Justice Oka has delivered several notable judgments during his term as a judge of the Bombay High Court.
Atheist Teacher Can't Be Compelled To Participate In School Prayers
In Sanjay Ananda Salve vs State of Maharshtra , a bench headed by Justice Oka quashed the suspension of a school teacher, who refused to fold his hands during school prayer. The teacher proclaimed that he was a non-believer and that he could not be compelled to fold his hands during prayer song. The court protected his right and said his action did not amount to misconduct. Justice Oka authored the judgment observing that the Petitioner has a freedom of conscience and he cannot be compelled change his belief that the prayers are religious in nature and to stand with folded hands when the prayers are being sung. The freedom of conscience guaranteed to the Petitioner protects him. He cannot be forced to stand with folded hands when the prayers are being sung.
Atheism Protected By Art. 25 & Govt To Give 'No Religion' As Option In Application Forms
Another noteworthy judgment rendered by Justice Oka is in the case of Dr. Ranjeet Suryakant Mohite vs. Union of India (judgment dated 23.09.2014 in PIL No.139/2010, Bombay High Court). Therein, the petitioner was seeking a direction from the court to the government to recognise 'no religion' as a religion and to restrain the government from forcing citizens to declare their religion in applications and forms. In what constitutes a beautiful exposition on the contours of Article 25, it was observed by Justice Oka as follows:
There is a complete freedom for every individual to decide whether he wants to adopt or profess any religion or not. He may not believe in any religion. If he is professing a particular religion, he can give up the religion and claim that he does not belong to any religion. There is no law which compels a citizen or any individual to have a religion. The freedom of conscience conferred by the Constitution includes a right not to profess, practice or propagate any religion. The right of freedom of conscience conferred on a citizen includes a right to openly say that he does not believe in any religion and, therefore, he does not want to practice, profess or propagate any religion. If the parents of a citizen practice any particular religion, he has a freedom of conscience to say that he will not practice any religion. There is a freedom to act as per his conscience in such matters.
Freedom of conscience under Art.25 of the Constitution encompasses in itself a freedom to an individual to take a view that he does not belong to any religion. The freedom conferred by Art.25 of the Constitution also includes a right of an individual to claim that he is an 'Atheist'. As the freedom of conscience confers a fundamental right to entertain a religious belief, it also confers a right on an individual to express an opinion that he does not belong to any religion.
Beef Ban: Striking Down Of Sec. 5D Of Maharashtra Animal Preservation Act As Unconstitutional
"Preventing a citizen from possessing flesh of cow, bull or bullock slaughtered outside the State amounts to prohibiting a citizen from possessing and consuming food of his choice. In Section 5D, the focus seems to be generally on consumption of beef s an item of food. Consumption of food which is not injurious to health is a part of an individual's autonomy or his right to be let alone. Hence, it is an infringement of his right to privacy. Hence, it is an infringement of his right to privacy. In our view, Section 5D violates the right of privacy being an integral part of the personal liberty under Article 21".
Thus observed Justice Oka, as the bench headed by him struck down Section 5D of the Maharashtra Animal Preservation Act, which criminalised the possession of meat of bull or bullock slaughtered outside Maharashtra. Significantly, the judgment holds that what one eats or drinks is a part of one's right to privacy. Even before the Supreme Court recently declared right to privacy as a fundamental right under Article 21, this judgment had recognised right to privacy as an integral part of personal liberty. One cannot withhold a salute to the foresight and prophecy of the learned judge.
Controversy over shifting noise pollution matter from Justice Oka's bench
Justice Oka was part of the bench that had held in August 2016 that area within 100-m radius from hospitals, educational institutions and courts would constitute 'silent zones'. This had resulted in closure and shifting of several Ganesh mandals during Ganesh Chaturthi festival that year.
In the next year, an attempt was made by the State Government to circumvent the said order on 'silent zones' by issuing a notification to amend the noise pollution rules. However, the bench comprising Justice Oka was not prepared to accept this argument and made oral observations to the effect that the earlier order would continue to operate, regardless of the amendment. Sensing the inclination of the bench, the Advocate General submitted that Justice Oka ought to recuse from hearing the matter on ground of "bias" against the government. A request for hearing by another bench was made before the Chief Justice as well. Following this, the then Chief Justice Manjula Chellur transferred the matter out of the bench of Justice Oka. This was widely criticised by the legal fraternity and the Bombay Bar Association and Advocate Association of Western India passed resolutions condemning the act of transfer. In the wake of widespread criticism, the Chief Justice recalled the order of transfer and re-constituted the full bench headed by Justice Oka to hear noise pollution matters.
