Chief Justice can’t write to any bench asking it to modify an order: Justice Oka

Justice Abhay S Oka, who retired from the Supreme Court earlier this year, reflected on the challenges before the institution

In an interview with HT, justice Abhay S Oka, who retired from the Supreme Court earlier this year, spoke with candour on some of the pressing issues before the judiciary. From the “Chief Justice-centric” image of the apex court, judicial independence, to delays that discourage prospective judges, his views on bail, personal liberty and the polyvocality of benches, as well as his strong stand against post-retirement positions, justice Oka reflected on the challenges before the institution.

Justice Abhay S Oka. (sc.gov.in)

You said at your farewell the Supreme Court is “Chief Justice-centric” and this image must change. How do you see the balance of power between the CJI as master of the roster and the need for more democratic functioning?

There are two parts. First, the roster. In high courts, every bench is assigned specific cases. So, a litigant knows which bench the matter will go to. In Bombay and Karnataka high courts, the roster is set for two months or ten weeks, signed by the chief justice and published. There are also “drop benches” so if one recuses, it goes to another. Once notified, the registry and even the chief justice have no discretion, except for transfer applications. In the Supreme Court, there is no such fixed roster. Subjects are assigned to multiple benches -- say, bail to three or four benches So, when a fresh petition is filed, the registry has discretion. In practice, the registry goes with 50-60 cases before the Chief Justice in the evening, and then cases are assigned. The Chief Justice is too busy to apply his mind to all. Therefore, there is a lot of discretion with the registry and also the Chief Justice. In my opinion, a fixed roster like in high courts will help. The important thing is minimal manual intervention.

Can the CJI ask or urge a Supreme Court judge to change a judicial order, as in the Allahabad high court matter where Justice Pardiwala’s bench tweaked his order after receiving a letter from the CJI?

First of all, if a bench is of the view that there is some error committed in the order, the bench always has the power to recall such order. But the matter has to be re-listed for hearing and parties must be given notice that the bench proposes to modify the order. This is perfectly legal. I have not read that (Justice Pardiwala’s) order. But it is obvious that a chief justice cannot write to any bench asking them to modify an order.

In 2017, the Maharashtra government alleged you were biased in the noise pollution matter, but the then chief justice of the high court constituted a three-judge bench with you. Recently, in contrast, Justice Pardiwala was excluded from the re-hearing of the stray dog matter after criticism. What is at stake when a judge is left out?

In 2016, I had delivered a final judgment directing strict implementation of noise pollution rules and action against pandals blocking roads. This was confirmed by the Supreme Court. Later, an amendment in 2017 did away with silent zones unless specifically notified. The state argued my earlier judgment would not apply, but petitioners said the zones had to be declared ineffective through a notification. In August of that year, the advocate general moved an application before the chief justice seeking a transfer, saying I was biased. The case was transferred, but the Bar and citizens protested. The chief justice then modified the order -- first to a different bench, and then restoring all cases to my bench. The Maharashtra government later tendered an unconditional apology, and we decided to show magnanimity.

Now, about the stray dog matter, we have to see if it was per se transferred or if a connected case was already pending. But as a matter of principle, if one bench passes an order that is criticised, it should not be transferred to another bench because it sends a wrong signal. This practice is not correct…Even assuming the CJI was within his powers to transfer it, why should it go to a bench of three judges when the first bench had two? That is another issue. And if it had to be transferred to a larger bench, the same bench could have been continued and one more judge could have been added.

In your 2017 order in the same matter, you said no authority can lower the dignity of the judiciary. Do you think that currently the judiciary in its present form holds the same opinion about the executive?

Ideally, when such a situation arises namely where one makes allegations against a judge, judges should not get bogged down. Because the idea is to seek recusal. The grounds for a judge seeking recusal are well settled. It is usually the case that the executive or anybody for that matter makes an allegation against a judge with the main purpose of getting the case transferred. So, that cannot be tolerated.

Does judicial independence vary between high courts and the Supreme Court? Are high courts more democratic in functioning?

High courts are insulated, but even the Supreme Court is similarly insulated. It all depends on individual judges. On being more democratic, high courts are so because important administrative decisions are taken by a committee or a full house. That normally does not happen in the Supreme Court, so high courts may be more democratic.

You had praised the previous CJI Sanjeev Khanna for transparency in putting the Collegium recommendations on the Supreme Court website. Yet, the process of appointment of judges remains contested. There is criticism that the Centre either delays or virtually rejects names by simply sitting on them. What reforms do you think are essential?

Once the Collegium approves the recommendation, the law is clear -- the government can send it back only once for reconsideration. If the Collegium reaffirms its decision, the government is bound to accept it. This is the law. However, the latter part is not being implemented. The delays are happening after the Supreme Court Collegium makes its recommendation. I have also noted this in one of my judgments.

Your PMLA judgments limiting ED’s arrest powers, recognising the accused’s right to unreliable documents, and granting bail in prolonged trials were seen as championing personal liberty and checks against misuse of power. What guided you, particularly on pre-trial detention? And linked to that, how do you view the Supreme Court’s polyvocality in bail matters, with some benches liberal and others restrictive?

According to me, the law is very clear for there exists Article 21. Now, if courts cannot enforce Article 21, who else is going to enforce it? About pre-trial detention, the law is so clear. The basic principle laid down by Justice VR Krishna Iyer that “bail is the rule and jail is the exception” even prevails today with some modification in view of specific provisions of UAPA, PMLA, or NDPS. But that rule prevails. If parameters are settled, and if there is long incarceration with no possibility of trial commencing, the accused has to be granted the benefit of Article 21. So, my approach was strictly constitutional and legal.

The law of precedent is significant on the issue of polyvocality. If a law is laid down by a bench, the coordinate bench is bound by it, unless it feels reconsideration is needed, in which case it should refer to a larger bench. When it comes to bail, a court has to necessarily consider the factual aspects.

When you were presiding over the bench on environmental issues in Delhi, you passed landmark orders, banning firecrackers and halting construction during peak pollution. While hailed as bold steps to protect health and environment, they also drew criticism for hurting livelihoods of small traders and workers. How did you balance these competing concerns?

First of all, about construction workers, I must state the facts correctly. We had introduced a complete ban on construction activities in the Delhi-NCR region to combat severe levels of pollution. But while we did that, we simultaneously passed an order directing payment of compensation to all affected workers. We followed the formula which had been laid down during Covid times. There was a fund available, and we directed all state governments to pay the construction workers from that fund. In fact, I had to issue a notice calling upon chief secretaries to remain present in court over compliance with the compensation order. The other issue is firecrackers. Now, ideally, if some workers are affected because firecrackers cannot be manufactured in Delhi, the state government should protect them. The state can come up with a scheme to give them some kind of alternative employment.

The 2018 Supreme Court order requiring end-of-life vehicles to go off Delhi roads has now been stayed, allowing them to ply again. Doesn’t this inconsistency affect the court’s approach to environmental matters?

In 2018, orders were issued by the court after several factors were considered, so the court should have been slow in staying that order. I believe it is only an interim order. Pollution in Delhi will rise from October or November onwards, so it is for the environmentalist to move the bench and satisfy the court that the stay deserves to be vacated. In a sense, you are right that there has to be a consistency in the orders of the court, especially when dealing with the environment.

You declined post-retirement jobs and observed a cooling-off period before speaking to the media. Was this a conscious statement?

After almost 22 years of judgeship, I felt I should avoid doing any work involving adjudication, namely arbitrations. Therefore, I said I will not do arbitrations. I may do opinion and consultation work, and I wanted to devote time to teaching in our law schools and judicial academies. Personally, I am of the firm view that after occupying the post of a Supreme Court judge, we should not accept any other post. Because that is the highest post as far as the judicial hierarchy is concerned. That’s my personal view. I cannot say that if somebody accepts the post, it is wrong, because there are statutes which require retired judges. So, I cannot blame others, but my strong personal view is that after occupying the highest office of Supreme Court judge, you should not take any post. As for interviews, of course there are no restrictions post-retirement. But some constraints you have to observe because you were part of this institution. The mind is full of emotions when one demits office, and therefore it is better to avoid at least for two or three months.