Executive Has Tendency To Encroach Upon Fundamental Rights, Only Fearless Judiciary Can Keep It Within Bounds: Justice Abhay S. Oka

“You take any government, I am not on any party as such. Irrespective of the party in power, notwithstanding the fact that we are, our republic is 75 years old, there is always a tendency on the executive to encroach upon the rights guaranteed under the Constitution. There is always a tendency to make an attempt to weaken the institutions under the Constitution. There is an attempt made by the executive to commit violation of fundamental rights of the citizens.”

“Therefore, someone must clearly and loudly say what is illegal and what is legal, and what is unconstitutional. And that somebody can only be the courts – our trial courts, our higher judiciary, High Courts and the Supreme Court. It is only when every unconstitutional action of our executive is checked, prevented and struck down by the courts that executive can remain within its bounds. The object is not to curtail the powers of the executive but the object is to ensure that the executive follows the law and Constitution.”

His speech incorporated the importance of teaching the masses about our Constitution, and this, according to him, is the only way to enforce the rights in its true sense. He also spoke about the importance of respecting the Constitution and the institutions created by it. The lecture touched upon impartiality and independence of judiciary to ensure that the executive stays within its constitutional bounds.

He also demonstrated that executive action many-a-times forces the common man to approach the constitutional courts even to enforce their basic rights like clean drinking water, disability pension, etc.

“As far as the common man is concerned, the judiciary has lost some credibility. We are not able to fulfil the expectations of common man...Bar and bench must be together to ensure that the old glory of judiciary in India is restored.”

Justice Oka touched upon the right to a dignified life, which according to him, cannot be led unless there is literature, drama, comedy, arts and freedom of speech and expression in its true sense. He expressed that the present scenario in our country is such that persons who exercise this freedom is imposed with serious criminal offences, including sedition.

“See the scenario in our country. Somebody sings a poem in the background of a videoclip, stand-up comedian criticises some politician, someone on social media gives best wishes to another country on its independence day, maybe that country is branded as an enemy country...these are all people against whom all sorts of offences are alleged. This is the scenario which we see every day. there is an attempt to trample with the freedom of speech and expression,” Justice Oka remarked.

He talked about Bal Gangadhar Tilak's address at his sedition trial a hundred years back, stating that it is still relevant today. He also read out excerpts from the Imran Pratapgarhi case decided by himself and Justice Ujjal Bhuyan. He underscored the duty of courts to protect the freedom of speech and expression even where the majority might dislike the views expressed.

At beginning of his lecture, Justice Oka had recounted a recent event at a law school near Delhi when a student asked him whether a practicing lawyer associated with a political party can be appointed as a High Court judge. He gave a different answer to that and said that if this was a criteria for appointment 50 years back, then India would have been deprived of one of its greatest jurist, Justice Krishna Iyer, whose judicial pronouncements, especially on bail, have stood the test of time.

He said that the duties of the judges is not merely to enforce the rights of citizens but also to come down very heavily when someone tries to trample upon the fundamental rights. According to him, this constitutional duty starts at the grassroot level, with the judicial magistrates who have the duty to enforce Article 22, and ensure that those detained in police custody are not ill-treated.

He enunciated that bail is the rule and jail is the exception, even in UAPA and PMLA cases.

“It is the duty of the magistrate or the judges to grant bail and that is where we are going wrong. How do you keep the executive in check? Executive has the power to cause arrest. And we see cases after cases that this power is being misused… Long incarceration and the accused cannot be blamed for delay in trial. Bail has to be granted. This should be the approach adopted by the judges while dealing with liberty matters.”

The former jurist remarked that this is especially important in preventive detention cases as well:

“In preventive detection cases also, the judges should show a lot of discipline they have to see whether the constitutional safeguards are followed and if not, they have a duty to enlarge the detinue.”

He further expressed that the judiciary must come down with heavy hands to strike down every violation of the law relating to the environment. However, he felt, this may not be enough unless citizens become vigilant and come forward to protect the environment. He referred to instances where environmental activists are ill-treated and politicians try to criticise and overcome court orders for protecting the environment in the name of religion.

The former judge opined that courts have to be very sensitive about actions of cutting hills, deforestation and pollution to water bodies. He mentioned that when we damage the environment, we are essentially taking away the right to dignified life for the future generations and doing a great injustice to them.

He said that one of the duties of a judge is to keep aside his own individual concepts of morality, faith and political philosophy in a separate compartment. A judge must never be worried about displeasing the public and instead, act according to the oath taken, which is to decide without fear or favour, especially in criminal cases.

“As far as morality for judges in concerned, for judges must never get swayed by a popular opinion. They must never think of consequences when delivering a verdict which according to them is legal and proper...You do not become judges to become popular. You are not in a popularity contest…When judges deal with criminal matters where members of the public are sensitive, it is all the more important that they must abide by the oath which they have taken. Oath of the judges is to decide without fear or favour.”

According to him, part of this morality is to express dissents without fearing about future prospects. Dissents in judiciary are helpful in keeping the executive in check. He referred to the landmark dissenting opinions delivered by Justice H.R. Khanna and Justice Vivian Bose.

The former Apex Court judge expressed that the real challenge, even after 75 years' since the adoption of the Constitution, was to teach the masses – those in prisons, slums and remote places – about their rights. He remarked that unless courts deliver quality justice, our dream of social, economic and political justice to citizens cannot be fulfilled.

Next, Justice Oka spoke about fundamental duties and that it is only when citizens do their duties that the other get to enjoy their fundamental rights. He outlined that there is a collective duty to respect and abide by the Constitution and the institutions created by it. One must protect the rivers, trees and show compassion to living beings and it is only then that the fundamental right to a pollution-free atmosphere can be achieved.

In a situation where people are not aware, even the best Constitution will not work. The working of the Constitution is not depended on its nature but upon its people. If the question is whether the Constitution has worked the way Dr. Ambedkar envisioned, the answer would be very awkward.

He concluded the lecture by saying that in order to find a solution to the issues faced now, a thought process, discussions and deliberations must be initiated.

“You must have found the lecture to be very forthright and outspoken...It is not because he has retired. We have always heard his speeches like this,” remarked Chief Justice of Kerala Nitin Jamdar, who presided over the event.

Chief Justice Jamdar underscored that the separation of the executive and the judiciary is not merely an external aspect but an internal aspect that each judge must profess. He highlighted the importance of a judge's behaviour when he interacts with the executive outside of courts.

Referring to a quote, he said that the judiciary and the executive do not need to be enemies, or have a disparaging attitude and there can even be friendliness, but cannot be friends. It is only when judges shed own habits, prejudices and bias that there would be real independence of judiciary, and only then can the executive be kept in check.

Justice Anil K. Narendran spoke a few words on the occasion and appreciated the enthusiasm shown by the law students attending the lecture.

High Court judges Justices Raja Vijayaraghavan and Devan Ramachandran also attended the event.

KHCAA President Advocate Yeshwant Shenoy delivered the Presidential address while the Association's Secretary Adv. Nandakumar M.R. gave the welcome address. The vote of thanks was proposed by Executive Committee member, Adv. Reni James.