Frivolous Complaints, Media Trials & Frequent Adjournments Affect Judiciary's Reliability: Justice Abhay S. Oka

Speaking at the webinar organised by All India Lawyers Association for Justice (AILAJ) on Saturday (Febraury 1) on the topic "Towards a responsible and reliable judiciary in India", Justice Oka highlighted that such frivolous complaints against judges are often made viral on social media. He said :

“For the last 10 years, I am seeing a disturbing trend of unscrupulous litigants. Everybody has a right to file a complaint, but what is happening is not only do they file complaints with the High Court or Supreme Court, but copies of unscrupulous complaints are circulated …whatever is stated in the complaint even if it is frivolous that goes viral on the social media.”

“There are cases and cases before the Courts for registering FIRs, to take action against the judges. If a judicial officer is frequently faced with such frivolous complaints they cannot work without fear or favour, it is bound to affect his conduct in the court”

Media Trial & Statement By Politicians May Put Pressure On Judicial Officers - Should Be Avoided: Justice Oka Expresses

Justice Oka spotlighted the issue of how media trials and media speculations on a pending case affect the perception of the quality of justice. He stresses that it is the job of the judge alone to analyse whether the accused is guilty based on the material placed before him.

“The judge is required to see if the person committed the offence as per legally admissible evidence and beyond a reasonable doubt, it is not his duty to see if the person must have committed the offence.”

He added that criticism of the judiciary should be backed by legal substance and be constructive in its objective:

“Criticism of a judge should be based on constructive criticism based on legal grounds, that protection must be given to judges, if we don't give that protection whether you like it or not - judges may work under pressure. The media trial or comments of media on pending cases is one reason why reliability on judges and judiciary is affected.”

Referring to the statements made by politicians in criminal cases which are widely given media coverage, Justice Oka underlined how the executive's statements on the death penalty for the accused amidst the pendency of the case may unwarrantedly pressurize the judicial officer.

“Unfortunately, after 77 years of independence of the Country, we still find offences against women and children. The minute it happens the politicians of the country step in- we have a scenario where a responsible minister and as a matter the Chief Minister making a public when investigation is in progress. - that we will ensure that a victim is hanged. It is a populist measure. One more deep-rooted cause is that the retributive theory is very much back  in our society- they don't know what is the object of punishing a person for committing an offence .”

“And if a person holding highest office declares that we will ensure that accused is hanged - that puts some pressure on the judicial officer. Society must understand that judges must decide as per law, whether death penalty be given is for judge to decide, the politicians cannot say whether death penalty be imposed or not.”

Justice Oka also added that it was crucial to have a policy framework to decide what kind of cases should be given a priority hearing :

“Several litigants come to SC who can afford to come to the higher court, while some are waiting in ques as they cannot afford, so we need to give priority- a poor man thinks that the Court gives prefer to those who can afford - if you want to increase the reliability of court you need to have a policy framework.”

Bar's Responsibility Towards Reducing Delay In Cases: Issue Of Adjournments And Abstention From Work

Justice Oka elaborated on how one of the key reasons for mounting pendency of cases is the practice of seeking adjournments and thereafter reacting adversarially against judicial officers who may take a strict view on granting adjournments. He said :

“More responsibility has to be shared by members of the bar because it is the members of the bar who apply for adjournment. And the grassroots level there are judges who try to be very strict about the adjournments, and then the lawyers and local bar associations will complain to the HC and protest and pass resolutions.”

He added how the tradition of boycotting or abstaining from work has to come to an end as it affected the Court's work and the hopes of the litigants.

" Out of those cases, there are 200 to 300 litigants who are moved back. Losing one working day for any reason is nothing but a crime. This happens not only when the member of the bar dies, notwithstanding the well-settled law by the Supreme Court, still the lawyers are resorting to the weapon of boycotting the courts or abstaining from the courts”

Another reason for adjournments that Justice Oka highlighted was the lack of any protection mechanism for the witnesses to be assured while agreeing to dispose in criminal matters:

“What are the reasons for these adjournments? we have scenarios where witnesses do not appear on the given dates; witnesses are not interested, they do not have enough protection to depose evidence without fear or favour. So one reason here is the absence of witnesses.”

Justice Oka also answered several questions posed by the live audience attending the event. These included :

On How Members of Bar Can Protect Judicial Independence

Justice Oka recalled how two powerful associations in the Bombay High Court passed strong resolutions: “When a bar association passes a resolution that a case should not be taken by any lawyer, the accused cannot be heard.

He added that “Members of the bar should start taking up the institutionary issues- they should give an impression that they stand for the independence of the judiciary....all associations must conduct programmes on the art of advocacy for young lawyers”

On The Recent Instances Of The Conduct Of Judges Outside The Court

On being asked how important it was for a judge to maintain high standards, both inside and outside the Courtroom, Justice Oka opined :

“Higher standards have to be maintained outside the court. Today I am a part of the decision-making process, not part of the whole process, so I prefer not to comment, I have constraints on me, I must apologise”

On Rising Tide Of Inequality In Country

J Oka answered that the Judiciary has to focus on clearing the backlog of cases. Because of the rising pendency, other contemporary challenges are not getting much of the attention.

“Today judiciary is facing a crisis, we are not able to deal with a sheer number of backlog of cases. Today's new challenges, we are not able to deal with.”

On the Issue of Post-retirement Positions Held By Judges

Justice Oka opined :

“We have laws which say that a tribunal will be manned by a retired SC or HC judge, so is there any option for the selection committee? These are the laws.”

“Even if we get rid of the laws, the judges will be doing arbitration... issue boils down to one thing - it is up to every judge to understand that as a judge and after demitting office, there is a prestige he has to uphold.”

On judges having a cooling-off period upon retirement to hold a new post, he answered :

“Whether the cooling period serves the purpose only time will tell.”

On The Issue Of The Effectiveness Of The Collegium System In Appointing Judges

Justice Oka, now being part of the collegium refused to detail the answer but expressed :

“ I answer as a student of law, if you want to substitute one system, it has to be substituted by something better”