A Judge Should Not Bother About Future Prospects Or Popularity: Justice AS Oka On Morality In Judiciary

Former Supreme Court judge Justice Abhay S Oka on Wednesday said that judges must not allow personal beliefs or popular sentiment to influence their decisions, and that morality for judges must be rooted entirely in legality and constitutionality.

He was speaking at a lecture series organised by The Global Jurists on the theme “Morality in Judiciary: A Paradigm or a Paradox.”

Justice Oka said that before assuming office, judges may hold personal views on morality, religion, or philosophy, but once appointed, they are constitutionally bound to keep those views aside.

“When we talk about morality in the context of judges you must remember that it is not the morality of common parlance. A judge takes an oath to uphold the law and the constitution. Before assuming office he may have his own ideas of morality. It may be a religious belief or a faith. He may practice a particular religion or believe in a particular philosophy. When he becomes a judge he must keep these views in a watertight compartment while discharging duties as a judge. My personal view for judges is that something which is legal and constitutional is moral and something which is not legal and constitutional is immoral”, he said.

He emphasised that judges must not be swayed by consequences, future prospects, or popularity, once they are convinced about the legal correctness of a verdict.

“A judge should not be swayed by popular opinion. When a judge decides a matter he should not bother about the consequence of that verdict. He should not bother about future prospects and he should not bother about popularity once he is convinced of the legal correctness of the verdict.”

According to him, pressure from society and political figures, especially in cases involving serious offences, can influence judicial decisions. “In a bail application after reading the statements recorded of the witnesses it is possible that the judges may be influenced by the nature of allegations. Then there are cases where the accused deserves to be enlarged on bail but bail is refused.”

He noted how public figures, including Chief Ministers, make premature pronouncements of guilt, which could affect the conduct of sessions judges.

“There are very heinous crimes nobody can deny that, especially against women. There is a pressure on the police to get hold of the accused and the trial should be expedited. Then the politicians and even Chief Minister go and say that the accused will be hanged. What will be the position of a sessions judge at grassroots level? The politicians and some intelligent members of the society also pronounce the guilt of the accused. They forget that it is the job of the court to decide based on evidence and to decide how sentencing should be done based on existing law. If I am judging a criminal case I have to say see whether there is legally admissible evidence sufficient to come to the conclusion that guilt is proved beyond reasonable doubt”, he said.

Justice Oka emphasised that there is no place for moral convictions in jurisprudence.

“For judges morality is only what is legal and what is constitutional, nothing else. It is a duty of every judge to apply strictly legal parameters to decide whether a person is guilty. He has to brush aside the concept of traditional morality or societal morality. We see cases where people are in jail for 10 years, 12 years and there is no legal evidence. This is called a moral conviction. Moral convections have no place in our jurisprudence.”

He recounted being asked how bail can be granted in economic offences involving public money. His response, he said, was that financial stakes may be one consideration among others, but if the legal criteria for bail are met, “there is no question of traditional morality of the judge coming into picture.”

Justice Oka said that traditional morality is shaped by popular opinion, which judges must consciously resist. “As a judge I should be prepared to deliver a verdict which will not be liked by the majority. That is the duty of a judge,” he said. He cited Justice H R Khanna's dissent in the ADM Jabalpur case as an example of a judge bound by constitutional morality, not societal approval.

“Judges are bound by the oath of the constitution and not by traditional morality. That is why judges give dissent. Justice Khanna gave dissent because he was bound by constitutional morality. The judges who gave the majority opinion in the Kesavananda Bharti case got superseded within a few days…These judgements were delivered because the judges were not influenced by the opinion of the ruling party.”

Turning to the issue of judges appointments, Justice Oka flagged the delay in processing names after they are recommended. He said the biggest challenge for Chief Justices today is persuading competent lawyers to accept judgeship, but even after consent, the appointment process takes 9 to 10 months.

“The moment I am recommended as judge, my practice stops. No litigant will come and give me a brief,” he said. “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 said that since the names go through scrutiny by the Chief Minister, Governor, and the Intelligence Bureau before reaching the collegium, the delay after recommendation is inexplicable and must be addressed immediately.

On trial courts, Justice Oka said they should not be referred to as “lower” or “subordinate” courts, calling such language contrary to constitutional ethos. “They are the main courts of the country because these are the courts where the common man can go,” he said, adding that his first administrative order as Chief Justice of the Karnataka High Court was to eliminate the use of the term “subordinate courts.”

He said that in 75 years of the Constitution, the worst mistake has been the neglect of the trial judiciary, which he called “the real judiciary.”

Responding to comments made earlier by former Hindustan Times Political Editor Vinod Sharma about judgments on free speech, Justice Oka said, “He has the right to criticize the system. There are other judgements of the Supreme Court which in very strong words upheld the right under Article 19(1)(a). Those judgements cannot be ignored. When you criticize, please give credit to the Supreme Court for some of the good judgements because there has to be constructive criticism.”

He acknowledged that delays in the system often result in verdicts not being delivered during a litigant's lifetime. He said the caseload in trial courts is overwhelming, with hundreds of cases pending before magistrates on a wide variety of subjects. These structural issues, he said, require serious debate.

Justice Oka concluded by saying, “I thank all of you for giving me a patient hearing because as a judge I was not known for giving a patient hearing.”

Also from the event - Why Outstanding Advocates Not Being Appointed As Judges? Need Answers From Central Govt : Justice MB Lokur