‘As sitting judge, don’t talk to media’: Ex- Supreme Court’s Justice Abhay S Oka on environmental activism, admitting errors and why comedians are important

“I firmly believe that as a sitting judge, you should not speak to the media. In fact, if you remember correctly, I had said in my speech that for three months I’m not going to speak to the media. I did not give any interviews for the period of three months. The judges’ appearance – what I follow personally – should be confined to law schools and law colleges, functions of the legal services authority and functions of the court,” he said.

Justice Oka, however, reflected differently when it comes to public events of the court.

“If there is inauguration of say any new district court building, practically in every state, there is a protocol that for such functions the Law minister and Chief minister or maybe local guardian ministers, are invited. The idea is that ultimately, funds come from the state government. The state is also equally interested in ensuring that the judiciary gets proper infrastructure. So as a sitting judge, that is where we make an exception. For such inaugural functions, one can share dais with the politicians. But otherwise one should avoid it,” he said.

Underlining the exceptions — being an alumna of a school, where the golden jubilee is being celebrated, upon invitation, normally it is a duty to attend — Justice Oka said otherwise one should avoid public events.

On social media guidelines for comedians

Justice Oka wondered which law could be invoked to frame guidelines and asked if it would stand to the scrutiny of article 19(1)(a) and even Article 21.

“I have said in one of the judgements that we have the right to live a dignified and meaningful life. If there are no comedians and there is no art and literature we can’t lead that life Article 21 gives us the right to,” he shared.

The judge clarified that the talk was about framing guidelines for controlling social media and not controlling the comedians.

“Social media may have also written very nastily about me. They may be writing today also, but personally I feel whatever is there on social media is quickly forgotten too,” he said.

Justice Abhay S Oka shared that he might have been trolled on social media but whatever is posted on social media is quickly forgotten too.

On judges being attacked for passing order for environmental protection

Justice Oka noted that environmental activists deserve support and praise from the society which they don’t get, usually. “Instead everybody attacks them, calling them anti-religion or anti-national. As far as judges are concerned we face attacks from social media, now,” he said.

The former top court judge recollected a 2017 incident when he was dealing with the issue of noise pollution and construction of pandals on the roads for religious festivals.

“The Government of Maharashtra moved an application to the Chief Justice contending that I have entertained bias against the state. The issue was that we refused to accept the state’s stand that no ‘silence zones’ existed across Maharashtra following an amendment to the Noise Pollution Rules. That’s an example I can always give where the government went to the extent of saying that I entertained bias. Of course the Bar came down very heavily on the Government and the Chief Justice of Bombay High Court and the  rest is history,” he shared.

On nipping the issue of environmental pollution in the bud

The benches headed by Justice Oka passed several significant directions with the onset of winter in 2024 before his retirement.

On safeguards for the environment

The judge noted, “It has been 75 years of constitution and still we are not doing our duty of protecting and preserving the environment. It is the duty of every citizen of India and perhaps we are not enough sensitized about doing our duty.”

He further underscored the need for every citizen to realise “their duty to improve and conserve the environment” to change things.

“Otherwise today the responsibility is confined to some activists who try to raise issues and go to court,” he argued.

On overturning of judgments in wake of comments of SC judge B V Nagarathna

Justice Oka underlined two aspects. He said when the Supreme Court delivers a judgment or lays down a law, history showed that the law did “undergo a change”.

He illustrated his argument with the case A K Gopalan v. State of Madras case (a landmark Supreme Court ruling challenging preventive detention under the Preventive Detention Act 1950) in 1950.

“And we went to the other extreme in Maneka Gandhi’s case in 1978 (revolutionised Indian constitutional law, establishing that the ‘procedure established by law’ in Article 21 (Right to Life & Liberty) must be ‘just, fair, and reasonable’, not arbitrary), where Supreme Court actually made lot of progress in the laws relating to liberty. So we change our views,” he said.

He felt what Justice Nagarathna meant was that if there was a judgement by the Supreme Court, it can be overturned only in methods known to the law.

“Perhaps she referred to one of the cases, the Vanashakti case. I will not comment upon the merits of that case because I had authored it. Perhaps she was referring to the fact that it was a review by a bench of two judges then how could it be taken up by a bench of three judges, as if it was an appeal. Perhaps she must have said it in that context. But it can’t be an absolute proposition that the judgement that you once took must remain static,” he added.

In the Kesavananda Bharati Case in 1973, however, the Supreme Court established the “basic structure doctrine,” which holds that Parliament has some power to amend but cannot amend the fundamental features of the Constitution, Justice Oka shared.
As a consequence, the judge said, the law has to be transformed but it has to be a transformation of the law with time and “it can’t be that you don’t like a judgement, therefore you get rid of that judgement”.

On his remark about Supreme Court being heavily Chief Justice-centric, the judge said the models of high courts was needed to be followed.

“In the high court, all major decisions are taken by a committee of 3 or 5 judges known as the administrative committee. In some High Courts there are 2 administrative committees. The important decisions are presented before the full house that is how the decision making process on the administrative side takes place,” he said.

Justice Oka revealed that in a state like Karnataka, even the transfer of district judge went before the full house after the administrative committee decides.

“But what I found in the Supreme Court was that many decisions on the administrative side are made by the Chief Justice alone. There are committees now and few things have been changed. So that one side is administrative. Secondly, what I referred to was about the roster. The high court has a fixed roster. Suppose you file a bail application today in High Court, you will know before which bench the bail application goes because there is a notified roster, where some judge takes up application for civil matters, some for criminal appeals and some takes up anticipatory bail,” he said.

In the Supreme Court, he said, there is no roster, there are only subjects which are given to the benches and are often common. He, therefore, said that the high court system had no scope for manual intervention.

Only when the roster changes, then of course it will go as per the new roster. There has to be a fixed roster in the Supreme Court.”

On the public acknowledgement of a past error in his 2016 Bombay High Court judgment

Justice Oka observed that it judges accept their error and correct it in accordance with law, it will enhance the faith of the common man in the judiciary.

“Because they will feel that if there is an error, then it is being corrected by a method known to law. There is review jurisdiction meant for that. So I don’t think it affects the faith of the common man or the image of the judiciary. On the contrary, it enhances the image of the judiciary. This is not the first time. I had given the example of the Golaknath and Kesavananda Bharti case,” he said. He noted that being in the judiciary was “always a continuous learning process”.

“You evolve and improve. If you are perfect, then there won’t be appeals, Special Leave Petitions, reviews and curative petitions,” he added.