Know Thy Judge | Supreme Court of India: Justice Abhay Shreeniwas Oka

In the realm of Indian judiciary, Justice Abhay Shreeniwas Oka stands as a distinguished figure, known for his profound legal acumen, unwavering commitment to justice, and relentless pursuit of upholding the rule of law.

Early Life and Education

Born on 25-05-1960, Justice Abhay S. Oka hails from a family with legal background as his father, Shri Shreeniwas W. Oka was a renowned lawyer.¹ Justice Oka did his bachelor’s in science (BSc) from Mumbai University and decided to become an engineer.

✤ Did You Know? Justice AS Oka at one point decided to become an engineer but gave up the idea midway and decided to join the legal fraternity instead.²

As a Lawyer

Justice Oka enrolled as an advocate on 28-06-1983 and started practising in Thane District Court in the chamber of his father.³ He practised for 19 years in the High Court, Appellate Side, Bombay in Civil, Constitutional and Service matters and specialised in all the matters.

✤ Did You Know? In 1985-86, Justice Oka joined the chamber of V. P. Tipnis, a former Judge of the Bombay High Court and former Lokayukta.⁴

Judgeship

On 29-08-2003, he was appointed as an Additional Judge of the High Court of Bombay and became a Permanent Judge in High Court of Bombay on 12-11-2005. He was appointed as the Chief Justice of the High Court of Karnataka in 2019, before being elevated as a Supreme Court Judge in 2021.⁵

During his tenure as a High Court Judge, he passed many orders on environmental protection and for better living conditions in Bangalore and Bombay. He is known for his orders on civil liberties. During the Covid-19 pandemic, he passed several orders protecting the rights of migrant workers and questioned the handling of the government.

Justice Oka and PIL

✤ Did You Know? During the tenure of Justice A.S. Oka as the Chief Justice of the High Court of Karnataka, the High Court of Karnataka suddenly become a constitutional shield for the protection of the rights of many marginalised communities including slum dwellers, sweepers, prisoners and transgender persons.⁶

Justice Oka took the Public Interest Litigation’s version of locus standi seriously and used it in facilitative role as opposed to a “command-and-control” position.⁷ His conviction to uphold justice, harbingering social change and preserving administrative accountability can be reflected through his judgments like – right to protest and requirements of Section 144 of CrPC, Rights of the urban poor: illegal evictions, Right to shelter: upholding the state’s obligation to provide shelter to the homeless under Article 21 of the Constitution and ordering the setting up requisite night shelters for the homeless across urban areas in the State, right of prisoners, Secularism, inviolable right to legal representation, combating atrocities against Scheduled Castes & Tribes, implementation of prohibition on manual scavenging and judicial intervention in the COVID-19 crisis.

On Technology and Courts

Justice Oka while delivering a lecture on ‘The Role of Technology in courts: Accessible justice, timely justice’ at the High Court of Bombay, recommended all high courts to start using technology to rule out manual intervention and automate the listing of new cases. According to him, technology will help in bringing transparency in Constitutional Courts and their way of working.⁸

On Importance of District Court

Justice Oka believes that if one must succeed in the high courts or the Supreme Court, they must spend a few years as a lawyer in trial courts. He himself has credited his success to his time in the trial courts.⁹ Justice Oka said that District and taluka courts play an important role in providing justice to common people therefore they are the core of the judicial system and should not be looked upon as “secondary courts”.¹⁰

Important Judgments

Justice Oka is known for his deep knowledge of the law, impartiality, and dedication in upholding the principles of justice and his tenure as the Chief Justice of High Court of Karnataka has been a living proof for exercising a delicate balance in the PIL jurisdiction, even as concurrently making sure protection from fundamental right violations of the maximum vulnerable. Some of his prominent Supreme Court and High Courts judgements are discussed below.

Supreme Court

In Raj Kumar v. State (NCT of Delhi), 2023 SCC OnLine SC 609, a Criminal Appeal against conviction by the Trial Court in 2003 for offences under Ss. 302, 307 read with S. 120-B of the Penal Code, 1860, sentence of life imprisonment and rigorous imprisonment for 7 years, which was confirmed by the High Court, the Division Bench of Abhay S. Oka* and Rajesh Bindal, JJ., set aside the appellant’s conviction for being vitiated and directed the State to set him at liberty. The Court observed that the only circumstance appearing against the appellant was not put to him in the statement under Section 313 of CrPC, remaining untouched by the High Court as well, and that the Trial Court also did not produce submissions made by the counsel for accused.

In Shanti Bhushan v. State of U.P., 2023 SCC OnLine SC 489, a case related to determination of the market value of a property at Allahabad, registered in 2010 for the purpose of stamp duty, the Division Bench of Abhay S. Oka* and Rajesh Bindal, JJ., allowed the appeal and set aside the impugned judgment of the High Court of Allahabad and Assistant Stamp Collector (Collector) and has remanded the case for fresh consideration to the Collector. The Court held that market value is the one which a bona fide and willing buyer will offer. It was further noted that there was no doubt that a property in possession of a tenant will fetch lesser value in the open market than the market value of a similar property exclusively in possession of the vendor.

In Shiva Kumar v. State of Karnataka, 2023 SCC OnLine SC 345, the division bench of Abhay S. Oka* and Rajesh Bindal, JJ., allowed an appeal against the order of life-time sentence to the accused by the Trial Court for offence punishable under S. 302 of Penal Code, 1860 (IPC) and modified the sentence to a fixed-term period of 30 years. The appeal before the Court was limited to the modification of the awarded sentence by the Trial Court for the offence punishable under Section 302, IPC. The Court held that Constitutional Courts could exercise power of imposing a modified or fixed-term sentence even where capital punishment is not imposed or proposed.

In Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. State of Maharashtra, 2023 SCC OnLine SC 326, the full bench of Sanjay Kishan Kaul, Abhay S. Oka* and Manoj Misra, JJ. held that affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case.

In a criminal appeal filed against order of the Delhi High Court upholding the order of conviction the Special Judge, Delhi, wherein the Court convicted the appellant/convict for the offences punishable under S. 7(i) and (ii), S. 13(1)(d) read with S 13(2) of the Prevention of Corruption Act, 1988, the division bench of Abhay S. Oka* and Rajesh Bindal, JJ., in Neeraj Dutta v. State (NCT of Delhi), 2023 SCC OnLine SC 280, reiterated that in absence of direct evidence for offences punished under Prevention of Corruption Act, reliance can be placed on circumstantial evidence to prove demand of gratification and set aside the order of conviction.

In a detailed judgment of Maniben Maganbhai Bhariya v. District Development Officer Dahod, 2022 SCC OnLine SC 507, the bench of Ajay Rastogi* and Abhay S. Oka*, JJ., while stressing on the importance of the work done by the Anganwadi workers/helpers at the grassroot level, held that Anganwadi workers/helpers are entitled to gratuity under the Payment of Gratuity Act, 1972. Writing separate but concurrent opinions, both the judges agreed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits.

“If we look towards the problems plaguing the Anganwadi workers/helpers, the first and foremost, they are not holders of civil posts due to which they are deprived of a regular salary and other benefits that are available to employees of the State. Instead of a salary, they get only a so called paltry ‘honorarium’ (much lower 24 than the minimum wages) on the specious ground that they are part-time voluntary workers, working only for about 4 hours a day.”

In K. Shanthamma v. State of Telangana, (2022) 4 SCC 574, an interesting case relating to corruption, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., acquitted a Commercial Tax Officer despite proved recovery of tainted currency notes from her. The Bench observed that though the recovery was proved in the absence of demand being conclusively proved conviction cannot be made under Ss. 7 and 13(1)(d) read with Section 13(2) of the PC Act.

In Bihar Industrial Area Development Authority v. Rama Kant Singh, (2022) 3 SCC 237, a case relating to Bihar Public Works Contracts Disputes, the Division bench of Ajay Rastogi and Abhay S. Oka*, JJ held that if any of the provisions of the Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 are in conflict with the Arbitration and Conciliation Act, 1996, the 2008 Act shall prevail to the extent of the conflict.

While deciding an appeal in Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99, where the appellant challenged the externment order issued against him under S. 56(1)(a)(b) of the Maharashtra Police Act, 1951, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., quashed the impugned externment order observing that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. The Bench held that,

“If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under Article 19(1)(d) of the Constitution”.

In Debananda Tamuli v. Kakumoni Kataky, (2022) 5 SCC 459, a case where it was argued that merely because husband and wife are staying separately since a long time, an inference regarding desertion cannot be drawn, the bench of Ajay Rastogi and Abhay S. Oka*, JJ held that whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.

“The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.”

In a breather to SK Supiyan, West Bengal Chief Minister Mamta Banerjee’s Election Agent in the Vidhan Sabha Elections held in 2021, the bench of L Nageswara Rao and Abhay S. Oka*, JJ in S.K. Supiyan v. CBI, 2022 SCC OnLine SC 164, granted him anticipatory bail in the Nandigram murder case but has directed him to fully cooperate with CBI for investigation and to remain present for investigation as and when called upon by the investigating officer. The Court made clear that the pre-arrest bail is liable to be cancelled if it is found that the appellant is not cooperating for the investigation.

In Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43, a Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

“We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

In Vinod Kumar v. Amritpal, 2021 SCC OnLine SC 1150, a Division bench of Ajay Rastogi and Abhay S. Oka*, JJ held that once the prosecution establishes the existence of the three ingredients forming a part of “thirdly” in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”.

In Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, a Division bench of Ajay Rastogi and Abhay S. Oka*, JJ granted bail to Thwaha Fasal and Allan Shuaib, booked under punishable under Ss. 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 for alleged links with Communist Party of India (Maoist). The Court noticed that in the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under S. 20, a prima facie case of the accused being involved in the said offence is not made out at this stage.

In State of M.P. v. Somdutt Sharma, (2021) 12 SCC 53, a Division Bench comprising of Ajay Rastogi and Abhay S. Oka*, JJ., held that Irrigation Department was not a factory within the meaning of Factories Act, 1948 as there was no indulgence in manufacturing process in the Department. The Bench expressed that, “even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process.”

“Overall activities and functions of the Irrigation Department would have to be considered while deciding the question whether it is carrying on manufacturing activities.”

In Nagendra Sah v. State of Bihar, (2021) 10 SCC 725, a bench of Ajay Rastogi and Abhay S. Oka*, JJ held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.

“…falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”

High Court

In Girish Bharadwaj v. State of Karnataka, 2020 SCC OnLine Kar 445, a Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. while addressing a petition about the release of information of people who contracted COVID-19 at Nizamuddin, Delhi, remarked that it is a policy decision and Court cannot interfere in the same.

In Sandhya U. Prabhu v. State of Karnataka, 2020 SCC OnLine Kar 441, a Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., while addressing a petition held that “…decision to keep open super markets 24×7 relates to purely a policy decision and nothing arbitrary in the said policy decision is found.”

In Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 391, a Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. asked the State Government of Karnataka to take cognizance on various significant issues that have been raised in wake of the outbreak of Corona Virus., like – Supply of hot meal to pregnant women, lactating mothers, malnutritioned children & needy people.

In Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 539, a petition dealing with issue of migrant workers who had applied to be accommodated to the Shramik Special Trains to their origin State, a Division Bench of Abhay Shreeniwas Oka, CJ and B.V. Nagarathna, J. held that, “…though several orders have been passed by this Court from time-to-time, the State has not placed on record any transparent and fair policy for selecting persons out of those who registered on Seva Sindhu website.”

In Vijayakumar Rai v. State of Karnataka, 2019 SCC OnLine Kar 2186, a Division Bench of Abhay S. Oka, CJ. and Mohammad Nawaz, J. directed the state government to refund the amount already deducted from the salaries of judicial officers by the end of February 2020. The Court held that the State has no power to tinkle with quantum of salaries and pension payable to judicial officers and new defined Contributory Pension Scheme not applicable to them.

In Monkeys Death – Suo Motu, in re, 2021 SCC OnLine Kar 15713, a Division Bench of Abhay S. Oka CJ and N S Sanjay Gowda J. remarked that it is necessary to lay down the guidelines to ensure that inhuman and shocking incidents of animal cruelty are hereafter prevented. The Court took up suo moto cognizance of large number of monkey deaths on the roadside in Belur Taluk of Hassan District on Wednesday night after 15 alive monkeys who were put in a large bag were found as per news reports published in the leading newspapers – Deccan Herald, Indian Express, Times of India, Prajavani, etc.

In Sanathana Kalakshetra v. Bruhat Bengaluru Mahanagara Palike, 2020 SCC OnLine Kar 871, a Division Bench of Abhay S. Oka, CJ and M. Nagaprasanna, J., while addressing a matter held that“…right to construct unauthorized temple and that also on a footpath cannot be said to be an essential part of any religion or religious practice which can be protected under Article 25 of the Constitution of India.”

In V. Mara Nayaka v. State of Karnataka, 2019 SCC OnLine Kar 681, the Division Bench of Abhay S. Oka, C.J. and H.T. Narendra Prasad, J. while not going into the legal issue involved – PIL against construction of hostel building for girl students belonging to Scheduled Caste, dismissed the petition and held that the act of the petitioner is not pro bono and should not be allowed to invoke the extraordinary jurisdiction of this Court by filing a Public Interest Litigation.

In High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 762, a Division Bench of Abhay S. Oka, CJ and Vishwajith Shetty, J., laid down the guidelines to be followed for payment of dues to the claimants in Motor Vehicle Accident Claim cases, Workmen’s Compensation Act, 1923 Matrimonial Cases and Land Acquisition Compensation cases etc. Due to the partial functioning of the district and trial Courts in the State in view of the COVID-19 Pandemic, entry of litigants in the Courts premises has not been permitted.

In High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 543, a Division Bench of Abhay S. Oka, CJ and S Vishwajith Shetty, J., while dealing with many issues held that no legal basis for Family Courts insisting on personal presence of petitioners at the time of filing cases and presence of complainant while filing S. 138 of the NI Act case not necessary.

In Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 448, a Division Bench of Abhay S. Oka, CJ and B.V. Nagarathnna, J. held that, owners of seized vehicles due to breach of COVID-19 Guidelines may approach jurisdictional Police Officers for the same. The Cour stated that “…in case of such seizure of vehicles for the offences relating to breach of the directions concerning COVID-19, it will be open for the jurisdictional Police Officers to exercise the powers under sub- section (3) of Section 102 of Cr.P.C and to give custody of the vehicles in terms of sub-section (3) of Section 102 to the owners.”

In K.C. Kondaiah v. State of Karnataka, 2020 SCC OnLine Kar 2419, a Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

In SEBI v. Franklin Templeton, 2020 SCC OnLine Kar 1650, a Division Bench of Abhay S. Oka CJ. and Ashok S.Kinagi J., while allowing the present writ petition held, “the decision of the Trustees (the Franklin Templeton Trustee Services private Limited) to wind up six Schemes mentioned in paragraph-1 of the Judgment by taking recourse to sub-clause (a) of clause (2) of Regulation 39 of the Mutual Funds Regulations cannot be implemented unless the consent of the unit-holders is obtained in accordance with sub-clause (c) of clause (15) of Regulation 18.”

In High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 557, a Division Bench of Abhay S. Oka, CJ and S. Vishwajith Shetty, J., in view of the present situation of COVID-19 outbreak held that, “…course adopted by the Courts while recording the plea of the accused and recording the statement of the accused under Section 313 of CrPC through video conferencing hearing will be a step taken to reduce the physical presence of the stakeholders in the Courts precincts to meet the exceptional situation and to secure the functioning of the Courts by following the best possible health practice.”

* Judge who has penned the judgment.