New Delhi: Emphasising the importance of judicial independence and constitutional morality, retired Supreme Court judge Justice Abhay S. Oka said Wednesday that judges must be prepared to deliver judgments that may not align with the sentiments of the majority.
Delivering the keynote address at a lecture series organised by The Global Jurists on the theme ‘Morality in Judiciary: A Paradigm or a Paradox’ in Delhi, Justice Oka hailed the legacy of dissenting judges in landmark cases, criticised use of terminology like “lower courts”, and raised concerns about delays in judicial appointments.
“Judges should be prepared to deliver judgments which are not liked by the popular majority,” he said. “My personal view is for judges, something which is legal and constitutional is moral, and something which is not legal and constitutional is immoral. The basic rule is that the judges should not be swayed by popular opinion, and that is the concept of morality for judges.”
He added that morality for judges lies in applying one’s mind to the law and the Constitution, and delivering verdicts with boldness, irrespective of “public opinion or so-called future prospects”.
The former judge also warned against the rising pressure on trial court judges to deliver verdicts that conform to public demands in cases involving heinous crimes. “In such cases, the public wants the accused to be held guilty, the CM already announces that the accused will be hanged,” he said, noting the tremendous pressure this places on Sessions Court judges.
He stressed that judges must resist such influence and base their verdicts solely on the evidence and legal principles before them. “They want the trial to be expedited. But today we have a scenario where some very important people in public life, like politicians or even the chief minister, for that matter, going public and saying that will ensure that the accused is arrested will be hanged.”
Justice Oka reminded the audience that it is ultimately the responsibility of the court, not the public or the executive, to determine guilt.
Also Read: SC gets unusual request from UP govt: ‘Retired HC judge of Vaishnav sect’ for Mathura temple panel
Dissenting judgments
Justice Oka cited Justice H.R. Khanna’s dissent in the 1976 ADM Jabalpur case as a hallmark of constitutional commitment over societal approval. Justice Khanna, in a 4:1 dissenting opinion, had argued that the right to life and personal liberty under Article 21 should not be suspended even during an Emergency. Justice Oka recalled how Justice Khanna gave dissenting judgments because “he was bound by his oath, not bound by what politicians feel or people in power feel or what the common man feels”.
He also invoked the legacy of the three dissenting judges in the 1973 landmark Kesavananda Bharati case, who were superseded, highlighting the personal and professional sacrifices judges often make when upholding the Constitution.
Delivered on 24 April, 1973, the Kesavananda Bharati judgment postulated the basic structure doctrine, and held that certain fundamental features of the Constitution, such as democracy, secularism, federalism, and the rule of law, cannot be amended by Parliament.
By a 7:6 split verdict, the dissenting judges, led by Justice A.N. Ray, argued that Parliament’s power to amend the Constitution should be absolute.
Justice Oka recalled an instance during the 2020 Delhi riots, when a midnight bench of Justices S. Muralidhar and Anup Bhambhani was constituted when some riot victims were stranded. “The bench gave audience at midnight or a little past midnight and not only ensured that they were given safe passage, but also ensured that compliance is reported,” he said.
Soon after the hearing, Justice Muralidhar was transferred to the Punjab and Haryana High Court.
“We often talk about sacrifices made by the three judges in Kesavananda Bharati, but someday we also have to consider whether the judges who were in the midnight bench during the 2020 Delhi riots met with consequences of their bold decisions given in the four corners of the Constitution,” Justice Oka said.
“So when we discuss morality, we have to discuss this also… these judgments were delivered because the judges were not influenced by the opinion of the ruling party,” he added.
Justice Oka was appointed as an additional judge of the Bombay High Court on 29 August 2003, and became a permanent judge on 12 November, 2005. He was elevated as Chief Justice of the Karnataka High Court in 2019, and later to the Supreme Court in 2021.
During his judicial tenure, he passed several significant orders in areas including environmental protection and civil liberties. Notably, during the COVID-19 pandemic, he issued multiple directions to safeguard the rights of migrant workers and questioned the government’s handling of the crisis.
‘Lower court’ terminology, appointment of judges
Justice Oka also criticised the terminology commonly used to describe various levels of the judiciary, saying that calling any court a lower court or subordinate court is against the constitutional ethos. He added that trial courts and district courts are the main courts of the country.
“I personally believe that our trial judiciary and district judiciary are the main courts of the country. They are the main courts of the law of the land. These are the courts where a common man can afford to go to and litigate and therefore calling any court as subordinate court or lower court is completely against the ethos of our Constitution,” he said.
He recalled that his first administrative order as Chief Justice of the Karnataka High Court was to rename court logs from “lower courts” to “trial courts”.
Justice Oka also raised concerns about the delays in the judicial appointment process after names are recommended. He said that one of the major challenges facing chief justices today is persuading competent lawyers to accept judgeship, a task made more difficult by the long gap between recommendation and appointment.
He referred to the example of Advocate Aditya Sondhi, who had withdrawn his consent from being elevated as a judge of the Karnataka High Court in 2022, a year after he was recommended by the Supreme Court Collegium.
“The moment I am recommended as judge, my practice stops. No litigant will come and give me a brief,” Justice Oka explained. “If for 9-10 months – it takes 9 to 10 months for the appointment – he is not getting work, then will that not affect the inclination of good lawyers to get judgeship?”
He noted that although the recommended names are scrutinised by the chief minister, governor and Intelligence Bureau before reaching the Collegium, the delay that follows remains unexplained and must be addressed urgently.
Justice Oka concluded his address with a note of humility and humour: “Judges must avoid temptation, but I’m not a judge.”
(Edited by Sugita Katyal)
Also Read: SC in rare move orders Allahabad HC to bar judge from hearing criminal cases till end of tenure