Fearless Judiciary Alone Can Check Executive Encroachment on Rights: Justice Oka

KOCHI – In a powerful and forthright address, retired Supreme Court Justice Abhay S. Oka delivered a stark warning about the persistent tendency of the executive branch to infringe upon citizens' fundamental rights, asserting that only a fearless and independent judiciary can serve as the necessary bulwark to keep governmental power within its constitutional confines.

Speaking at an event organized by the Kerala High Court Advocates' Association (KHCAA) on November 27, Justice Oka emphasized that the judiciary's role is not to curtail executive powers but to ensure strict adherence to the law and the Constitution. His lecture, titled 'Holding the executive to account – responsibility and duty of the judges', served as a compelling call to action for judges at every level of the judicial hierarchy.

"Irrespective of the party in power... there is always a tendency on the executive to encroach upon the rights guaranteed under the Constitution," Justice Oka stated, making it clear his critique was institutional rather than partisan. "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."

The event, held at the High Court auditorium, was presided over by Kerala High Court Chief Justice Nitin Jamdar and attended by prominent members of the bench and bar, including Justices Raja Vijayaraghavan and Devan Ramachandran.

The Erosion of Fundamental Freedoms

A significant portion of Justice Oka's address focused on the growing threats to the freedom of speech and expression, which he described as essential for a dignified life. He painted a grim picture of the current climate where individuals are being charged with serious criminal offenses, including sedition, for exercising their right to dissent or express unpopular opinions.

“See the scenario in our country. Somebody sings a poem... a stand-up comedian criticises some politician, someone on social media gives best wishes to another country on its independence day... these are all people against whom all sorts of offences are alleged," he remarked. "There is an attempt to trample with the freedom of speech and expression.”

To underscore the judiciary's duty in this context, he invoked the historic sedition trial of Bal Gangadhar Tilak and cited a recent judgment he co-authored in the Imran Pratapgarhi case, stressing that courts must protect free speech even when the expressed views are disliked by the majority.

Reclaiming the "Bail, Not Jail" Principle

Justice Oka issued a pointed critique of the judiciary's recent approach to personal liberty, particularly concerning the grant of bail. He argued that the executive often misuses its power of arrest, leading to prolonged incarceration without trial. In this scenario, he asserted, the judiciary has a constitutional duty to intervene decisively.

“Bail is the rule and jail is the exception, even in UAPA and PMLA cases," he enunciated, directly addressing the application of the principle in cases under stringent special statutes. "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."

He reminded the audience that this duty begins at the grassroots level with judicial magistrates, who are the first line of defense in upholding Article 22 of the Constitution and ensuring that detainees are not ill-treated. This principle extends with equal, if not greater, force to cases of preventive detention, where judges must scrupulously verify that all constitutional safeguards have been met before upholding the detention.

Judicial Morality: Fearlessness over Popularity

Justice Oka delved into the internal compass that must guide a judge, emphasizing that judicial decision-making should be insulated from public opinion and personal beliefs. He admonished that judges must set aside their "individual concepts of morality, faith and political philosophy" when adjudicating cases.

"You do not become judges to become popular. You are not in a popularity contest," he declared. "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... to decide without fear or favour."

This judicial morality, he argued, also includes the courage to dissent. Citing the celebrated dissenting opinions of Justice H.R. Khanna and Justice Vivian Bose, he highlighted that dissents are a vital instrument for keeping the executive in check and fostering the development of law.

Environmental Justice and Constitutional Literacy

The former jurist also turned his attention to environmental law, urging courts to "come down with heavy hands to strike down every violation." He lamented that environmental activists are often ill-treated and that court orders aimed at protecting the environment are sometimes criticized in the name of religion or development. Damaging the environment, he warned, is a grave injustice to future generations as it infringes upon their right to a dignified life.

Ultimately, Justice Oka argued, the effective functioning of the Constitution depends not just on the judiciary but on an aware and engaged citizenry. He stressed the urgent need to "teach the masses – those in prisons, slums and remote places – about their rights," stating that without this constitutional literacy, even the best-drafted constitution will fail to deliver on its promise of social, economic, and political justice.

A Call for Introspection

Presiding over the event, Chief Justice Nitin Jamdar echoed Justice Oka's sentiments, adding that the separation of powers is "not merely an external aspect but an internal aspect that each judge must profess." He noted that while the judiciary and executive need not be enemies, true judicial independence requires judges to shed personal biases and prejudices.

Chief Justice Jamdar also commended Justice Oka for his consistent frankness, remarking, "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."

Justice Oka’s lecture stands as a critical reminder to the legal fraternity of its foundational duties: to act as vigilant guardians of the Constitution, to protect individual liberties against state power, and to dispense justice without fear, favour, or the pursuit of popularity.