Judiciary & Media Need To Be Independent To Avoid Criticism That They Are Close To Ruling Party: Justice Abhay Oka

To avoid the criticism that the media and the judiciary are now-a-days inclined towards the ruling party, both the pillars of the democracy need to be fearless and independent, said former Supreme Court judge Justice Abhay Oka on Friday.

The judge in his lecture at Mumbai Press Club on the topic "Holding the Government to Account: The Role of an Independent Judiciary and a Free Press" spoke about the role of the media and also the courts to uphold fundamental rights of citizens and also on the criticism of falling standards in the press and the criticism of the judiciary. 

"Today, we speak about falling standards of media and it being controlled by corporates and the inclination of the media to ruling parties... Similar criticism has been for the judiciary in some quarters. Though I am part of judiciary, I have to accept that, that criticism is being offered. The solution to avoid such criticism is there has to be a fearless, independent judiciary and press to keep the executive in its bounds," Justice Oka said. 

The judge said that the media and the courts must come down heavily whenever there is a violation of the fundamental rights of the citizens, especially of the rights of free speech and expression and also the right to life. He emphasised that courts and the media must protect citizens against injustice. 

"Judiciary has to enforce the fundamental rights of citizens especially the ones guaranteed under Article 19(i)(a) and Article 21 of the Constitution of India. It should not only protect the fundamental rights but also protect citizens against injustice and in fact it must come down heavily against any injustice...Even the Press must be vigilant and come down heavily against violation of fundamental rights and injustice to common man...Press is in a better position to influence the opinion of the common man, capacity to influence opinion of its readers," the judge said. 

The judge further stressed that unless there is satire, art, literature etc, humans won't be able to survive.

"We have dramas, movies, cartoons in existence... All this of course, includes free speech... So without freedom of speech and expression, we can't live a dignified life or meaningful life... Thus, when someone violates this right, it also encroaches on our right to life...More the responsibility of the courts to enforce the fundamental rights because they are in position to enforce the fundamental rights .. they can come down on illegalities, which they see around," the judge said.

Justice Oka explained how judges sitting in the court hall can only decide whether something is legal or not, but it is for the media to discuss whether something is proper or not. 

"When a matter comes to me, wherein Article 19(i)(a) right is breached by the government because that person spoke something or wrote something etc... my duty as a judge is to see if his rights are violated or any offence is made out...But I as a judge cannot say what that person has said may be proper or not. That is for the media to say if it is proper or not. I as a person may not like some drama, some stand up comedy, speech, etc but when I sit as a judge it doesn't depend on my personal likes or dislikes... My duty is to check if there is any violation of free speech or if there is any offence etc... my duty is to write a strong judgment and come down heavily...But the media has the power to say that whatever was said was proper or inappropriate," the judge explained. 

On Justice Varma's Case

On a question as to why no FIR against Justice Yashwant Varma despite cash being uncovered at his residence, Justice Oka said he would not be able to comment on this as he was part of the consultative process for the in-house committee. He, however, junked the contention that 'judges are above law.'

He said, "If there is no protection to judges, imagine how many FIRs would be lodged against the judges.. will they be able to perform their duties then?"

No Data To Show Only Those Close To Ruling Party Get Bail

Justice Oka also refused to accept that the likes of Umar Khalid and Stan Swamy are denied bail only because they are not close to the ruling party but people like Ram Rahim are given parole regularly because they are close to the ruling dispensation.

"A person, who is entitled to bail as per law, must get bail and there cannot be any dispute on this...However, the contention that the ones close to a ruling party get bail is one perception. It may be true also but a systematic study is required as to in which all cases who have got bail, etc. Study is needed to see if only people close to ruling party get bail and once such a study indicates that, then you can say so," the judge said. 

Courts Should Not Be Concerned About Cause For Protests

During his speech, when the judge was asked about the recent order of the Bombay High Court refusing permission to Communist Party of India (Marxist) for protesting the genocide in Gaza and asking the party to 'be patriots', he said it is not the job of the judges to look into the issue for what the protests are being held. 

"Protests are also part of Article 19(i)(a) rights. Court only must see whether there is violation of fundamental right... it should not be concerned about the issue for which the protests are to be held..." Justice Oka said. 

Tilak's Words Still Relevant 

The judge recounted the words of Lokmanya Tilak, he uttered during the famous sedition trial.

"We have forgotten what Lokmanya Tilak said to Justice Davar... He has spoken only about free speech and expression... He calls upon the jury to perform their duty... There are very two important sentences. First one is:  Only because someone feels I have committed offence of sedition by writing something in my newspaper, it doesn't become sedition because somebody feels so... It must satisfy the law... Second he says that he knows he isn't favourite of British government but that doesn't mean he should be prosecuted... These lines are relevant even today after 117 years..." the judge said. 

Every Party In Power Has Tendency To Curtail Rights Weaken Institutions

In his speech, Justice Oka said underscored that every political party, when comes to power, has this tendency to trample upon rights of citizens and to also weaken the Constitutional Institutions and in such situations, the responsibility is on the media and the judiciary to uphold the rights. 

"Irrespective of party in power, there is always a tendency on the executive (rulers, ministers) to encroach upon rights guaranteed in the Constitution and to weaken the Institutions under Constitution and to curtail the fundamental rights of citizens... That is where role of courts and media come in place," the judge said, while further referring to the days of Emergency, wherein courts be it Bombay or any other High Court upheld the rights of individuals.

"One of the leading newspapers protested emergency by keeping the editorial place blank... Those were the days when media and judiciary performed their duties..." the judge pointed out.

Breach of Environment Laws Violates Right To Life

The judges pointed out that Article 21 provides for right to live in pollution free environment and therefore emphasised that it is the duty of the court to ensure that law relating to environment are strictly enforced.

"Because the moment you violate laws related to environment you breach rights under Article 2... Issue of felling of trees, destruction of forest... Question needs to be asked is whether media is vigilant about this? Has the judiciary done enough to protect the rights ? There will always be a debate about this..." the judge said while further citing a case of an old environment activist from Thane district, who fought for protection of lakes in the city, was named in a frivolous FIR but the media did not question the State's action.

The judge highlighted the fact that the government usually tries to overreach orders of the court, when courts try to protect the environment.

"When an order is passed with respect to environment it is not only certain elements of the society but even politicians come down heavily on court orders when courts try to protect environment... Always, an attempt is made by the executive to overreach the orders of the courts in respect of environmental issues," the judge said.