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

Retired Judge of the Supreme Court Justice Abhay S. Oka has said that the executive has a tendency of trampling upon citizens' fundamental rights and it is only a strong judiciary, which can keep the executive in check.The judge was delivering a lecture on the topic 'Holding the executive to account – responsibility and duty of the judges' at an event organised by the Kerala High Court Advocates' Association (KHCAA) at the High Court auditorium on Thursday (November 27).“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.”The former jurist reminded that in such situations, it is the duty of the courts to safeguard the rights guaranteed by the Constitution and keep the executive in check:“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...

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

K. Salma Jennath

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