Justice Abhay Oka has been a bold judge whose ability to deftly detect impropriety and shortcomings in governmental action led him to unhesitatingly crack the whip whenever necessary, writes Rahul Machaiah.

Justice Abay Oka taking oath as Supreme Court judge DD News screenshot
Voices Opinion Thursday, September 02, 2021 - 13:03

After an eventful tenure as the Chief Justice of the Karnataka High Court, Justice Abhay Shreeniwas Oka has been elevated as a judge of the Supreme Court. During his tenure which lasted for more than two years, Justice Oka pronounced several notable verdicts in matters pertaining to the environment, human rights and the criminal justice system. These verdicts reflect a strong commitment to uphold and nourish the rule of law. 

Denouncing police excesses

When the contentious Citizenship (Amendment) Act was enacted in December, 2019, there were widespread protests in Karnataka. Bengaluru's Commissioner of Police banned public rallies which were to be held on December 19, 2019. Thereafter, public spirited citizens challenged the constitutionality of the prohibitory orders. Justices Oka and Hemant deprecated the Commissioner's actions. Justice Oka who authored the judgment described the Commissioner's order as illegal as he had not applied his mind independently to ascertain the need for the prohibitory orders.

The judgment underscored the constitutional protection accorded to expression of dissent and peaceful protests, irrespective of the merits of the dissent. Equally significantly, it clarifies that a Commissioner of Police is not bound by directions of senior officers while imposing prohibitory orders as it is an independent magisterial power. 

Protests against the CAA were not confined to public rallies and demonstrations. In Bidar, school children enacted a play on the CAA and an eleven year old girl allegedly made distasteful remarks on the Prime Minister. The headmistress and the girl's mother were booked for sedition and jailed. In a brazen violation of the law, armed policemen in uniform interrogated the school's students. Appalled by this, Justice Oka observed "Why were children subjected to all this? This has to be corrected, this can't go on." He directed a senior police officer to explain if the guilty policemen had been punished. Furthermore, he directed the state government to issue directions to prevent such violations of child rights. 

During the state-wide lockdowns in 2020 and 2021, policemen were seen thrashing people on the roads. Taking note of the rampant brutality, Justice Oka's bench intervened during both the lockdowns and directed the DG&IGP of Karnataka to restrain his personnel. One of his most remarkable orders was the direction to the state government to compensate and rehabilitate migrant workers whose huts had been demolished illegally, pursuant to xenophobic complaints. The judgment reiterated that the fundamental right to life enshrines the right to shelter and could be restricted only through a fair and reasonable process.

Upholding rights during the pandemic

During the pandemic, Justice Oka's bench was vigilant and proactive in upholding rights. In May 2021, the bench was informed that Karnataka required 1500 MT of oxygen everyday but the union government had allocated  around 900 MT. The Union government informed the court that it would conduct meetings and decide on increasing Karnataka's share. The bench refused to accept this submission and observed "You cannot allow people to die because of shortage of oxygen". It then directed the Union government to supply 1200 MT of oxygen to Karnataka per day.

Apart from issuing specific directions to the state government, the bench forced the government to act by asking pertinent questions and reminding it to implement its policies within a fixed time period. Therefore, the government could not drag its feet on ensuring food security during the lockdown and it assured the court that cooked meals would be served and food grains would be distributed even to people without ration cards. The bench's pointed questions and observations forced the government to withdraw a notification which allowed factories to make its employees work upto 60 hours in a week during the pandemic. The bench also ensured that the government helped migrants return home even if they could not afford to buy tickets.

When citizens petitioned the court about politicians flouting the lockdown restrictions, Justice Oka's bench promptly pulled up public servants. The state government, Deputy Commissioners and the police were pulled up when former Chief Minister and JD(S) leader HD Kumaraswamy's son Nikhil and then CM BS Yediyurappa's son Vijendra violated the lockdown. The BJP had organized a rally in Belagavi which was attended by Home Minister Amit Shah. When the bench was informed that COVID-19 norms had been flouted, it reprimanded the Commissioner of Police and directed him to register criminal cases. The bench also ensured that politicians like Tejaswi Surya and DK Shivakumar were fined for flouting COVID-19 norms. 

Preserving the sanctity of the criminal justice system

To prevent generation of bias against the accused and ensure a fair trial, Justice Oka's bench restrained the police from disclosing the identity of the accused and details of the investigation before the investigation is completed. It directed the government to frame rules to this effect and warned the police of disciplinary action if they breached these directions.

When the government officially directed prosecutors to withdraw serious criminal cases against 61 people, including ministers, MLAs and MPs from the ruling party, Justice Oka's bench intervened. It held that the prosecutors and trial courts were not bound by such orders and cases could be withdrawn only if public interest warranted withdrawal. This was a powerful reminder to the government that elected representatives are not above the law. He also dealt firmly with advocates and advocates' associations when they attempted to dissuade advocates from defending people accused of sedition, as legal representation and a fair trial are fundamental rights.

A vigilant judge

Justice Oka has been a bold judge whose ability to deftly detect impropriety and shortcomings in governmental action led him to unhesitatingly crack the whip whenever necessary. Justice Krishna Iyer had described judges as "invigorators and enforcers of constitutionality". Justice Oka has been one such judge and the Supreme Court will be enriched by his elevation. 

Rahul Machaiah is a lawyer from Karnataka. He holds an LLM in Law & Development from Azim Premji University.

Views expressed are the author's own.

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