In Part I, former Supreme Court judge Justice Abhay S Oka spoke about the elevation of the Chief Justice of India’s nephew to the Bombay High Court, how the Collegium should deal with government inaction on judicial appointments and more.

In Part II of this interview with Bar & Bench's Debayan Roy, Justice Oka talks about free speech in India, a healthy distance between the judiciary and the government, and more.

Edited excerpts follow.

Debayan Roy (DR): In quashing an FIR against a poet, you cautioned against criminalising dissent. What doctrinal test should replace the vague standard of 'hurt sentiments' in such cases?

Justice Abhay S Oka (J Oka):  The answer lies in two aspects. One is Article 19 (1)(a), which provides for freedom of speech and expression. The exceptions are contained in clause 2 of Article 19. Unless a case falls under the exceptions under clause 2 of Article 19, the right under 19(1)(a) has to be upheld. There is no dispute about it...

...Second is, when an offence is alleged all that you have to do is just find out whether offence is really made out. Judges can't be influenced by any other consideration except this...

...maybe some people may have got offended because of the utterances, because of writing or speeches, or maybe a show by a stand-up comedian. That's not the test. The test is whether his right under Article 19(1)(a) should be protected and whether the exceptions will apply. This is the only purely legalistic test that has to be applied, because ultimately, the function of a constitutional court is to uphold the Constitution.

DR: In that judgment, you observed that even after 75 years of independence, the police don't understand the contours of free speech. How do we remedy this? What role do the lower courts play in nipping frivolous, politically-driven cases in the bud?

J Oka: There can't be any dispute that there needs to be more training; now a lot of training is happening in state judicial academies. Now, we have very modern judicial academies in all states, but we must continuously improve the quality of training, make some innovation - that is absolutely necessary. There is a National Judicial Academy, which is now even arranging training courses for all civil judges...

...Now, about the trial courts and session courts. How criminal law is set in motion - one is by a private complaint. Then, the judicial magistrate has to apply his mind whether the offence is made out...If no case is made out at that stage, he can simply dismiss the complaint.

The second category is where an FIR is filed and after charge sheet is filed, a court takes cognizance on the basis of FIR. At that stage also the court can, after reading the charge sheet, say that a particular offence is not made out...At the time of framing of charge, accused has to be heard on charge. So accused satisfies on the basis of material forming part of the charge sheet that there is no case made out of any offence against him, then the court can discharge him.

In a private complaint, if a court takes cognizance, then that can be challenged by revision application before the sessions court. So if the sessions court find that cognizance ought not to have been taken on the basis of private complaint, sessions court can interfere and quash the complaint...

...See about free speech, I'll tell you something...there is a duty vesting in the citizens to abide by the Constitution. So if I exercise my right to freedom of speech and expression, it is the duty of the other citizen to protect that right, to uphold that right. That is not happening.

People don't understand that it is their duty to uphold the right of others to speak and they have the right to controvert what others say. If I say something, somebody can controvert it...But that does not happen. Therefore, people go to the police and police sometimes work under pressure also. Today, we have a scenario where if an offence is not registered, people agitate in front of the police station. So, this is something which is wrong in the society, where we are not able to recognise the importance of fundamental rights, or we are not able to respect the fundamental right available to the others. So, a lot of changes in society are also needed.

DR: In the recent Delhi Riots cases, the Delhi High Court denied bail to Umar Khalid and others, noting that a hurried trial would not benefit the accused either. From a purely jurisprudential standpoint, do you believe bail ought to have been granted in such circumstances, or was the Court right in letting the trial run its course?

J Oka: We need to correct our approach. Yesterday, that order was passed. I read on these channels or on mobile apps that bail has been rejected. But till yesterday night, I could not locate that order. So before we offer any comment, we'll have to read the order...

...There can no dispute that trial cannot be hurried at all...The reaction which I saw was that there is no possibility of trial being proceeded with in near future and there is long incarceration. So, this appears to be a basic argument...If these are the only facts, then you are right, but we have to see what are the grounds given for rejection. The grounds given relate to the antecedents. So that we have to see. I have openly said this - that we must follow the well-settled principle that bail is the rule and jail is the exception. But when we comment upon bail orders, we must first read the bail order.

DR: Indira Jaising criticised your judgment in Jitendra Kalla, saying that it took the Senior designation system '10 steps back'. The judgment says that qualities like 'ability' and 'standing at the Bar' should be assessed for designation. How can these criteria be quantified?

J Oka: Firstly, I would not like to offer any comment about my own judgment, because I have myself said that everybody has the right to criticise my judgement. I respect the right of Madam Indira Jaising to criticise my judgement.

And I think I should not offer any comment about the tests laid down by us or what is the reasoning given. It is for others to assess whether they are right or wrong...

DR: At your farewell, you said that a judge must not shy away from offending. How do you personally draw the line between principled firmness and being "offensive"?

J Oka:  I said that in the context, in the sense that when you sit in the court, you decide to pass an order. I'll give you an example. I passed an order in Bombay, that you should not construct pandals for festivals that will obstruct the footpaths and roads. Maybe some people got offended...The point which I wanted to make was that when you sit as a judge, after hearing both the parties, you come to a conclusion that this is the legal position and this is how a case should be decided, or this should be the order which is passed in accordance with law. Then, you should not hesitate to pass that order by thinking that somebody will get offended. If you're doing the right things and people get offended, you should not be bothered about it.

DR: Do you think that's something the judge should take in his stride?

J Oka: I am on consequence. Consequence of a judgment results in offending certain people. That should not be a criteria for deciding a case. The criteria is only law. You have to follow law.

DR: In the context of the ongoing Vice-President election, do you believe that a retired judge who enters politics can still claim the same shield of judicial independence when past judgments are criticised, or does public scrutiny then become legitimate?

J Oka: My personal view is that after demitting office, judges should not get into electoral politics. They should not contest elections...there were some great judges who had done that...

...let us take a judge who files his nomination and contests elections for an important post. Again, like any other judge, you can criticise the judgments...But if somebody says that a judgment has to be read in a particular way, and that is how it is wrong. The others are right to say that this is not the correct interpretation. You can't say something against a judge only because he's contesting an election...you don't criticise the judge, you criticise the judgments...It has to be a debate about the correctness of the judgment. It's not a debate about that judge...

DR: You have spoken about the need for visible distance between the judiciary and the government. Should judges stop attending government-hosted events altogether?

J Oka: There are certain norms governing which functions judges should attend where government is the host. Number one, when there is a function of opening of a new court. Now, normally for that function, the funds come from the government, the public works department...the law minister has to be called or local guardian minister has to be called...Here, there's nothing wrong if we attend such functions and it is our duty as judges to attend...

...The second category of function is activities of legal services authority, where legal aid fairs are conducted. Now for discharging our duty as part of the legal service authority, if there are some functions which are hosted by the government, it is our duty to attend...

...So I think the judges should remain confined to official functions - either laying down foundation stone or opening of court building and legal services authority functions. There's no question of attending any other function hosted by the government.

DR: Not personal, religious functions?

J Oka: No, never, never, never.

DR: Despite strong expectations, the latest Supreme Court collegium recommendations did not include a single woman judge. Why does this persistent gap remain? Is it a flaw in the selection process or in the availability of meritorious women judges?

J Oka: On principle, you are right that there should be more women judges in the Supreme Court. Now, today there's only one. At one point of time, in 2021, when three were appointed, there were four.

The more important question is whether the Collegium considered the cases of those women judges of the High Courts who are in the zone of consideration. If cases of the women were considered, and for good reasons, they felt that somebody else should be recommended, then perfectly alright. The real debate is whether cases of women were considered. They should have been considered.

DR: The Court itself has said that perception matters in a democracy. When citizens see no women judges making it to the Supreme Court, and the Collegium’s reasons remain opaque, how do we remedy this? And what message does it send to women judges aspiring to reach the top court?

J Oka:  While I agree with you that this is the perception - that there are so many women judges in the High Court and they are senior also. If you go by the all-India seniority list, that perception is right, but the real question is whether the Collegium considered the cases of those judges...

...So again, it boils down to the transparency in the process. Maybe the Supreme Court could have said that we are considered cases of so many candidates. But there also, there is a slight issue. I will not name the judge - I have the highest respect for that judge, who is no longer a judge of the Supreme Court. He was from a particular High Court. [While appointing him], the Collegium said we want to give representation to that High Court and we won't follow all-India seniority...but the Collegium resolution said that we found him to be more suitable than other judges who are more senior to him. Now, this sometimes can send wrong signals. So therefore, again, the privacy has to be balanced with the transparency.

DR: You have kept away from adjudicatory roles post retirement, though you accepted a mediation assignment. Should there be a uniform code drawing clear lines between adjudication, mediation and commissions of inquiry for judges after retirement?

J Oka: It is my personal view that I should not do anything which is adjudication. Under the Commission of Inquiry Act, the law provides for a retired High Court judge or Supreme Court judge to be appointed. And that's not really adjudication.

Now, you're talking about the other appointments to tribunals etc. If the law provides that a retired Supreme Court judge can be appointed or a retired Chief Justice can be appointed to a particular post, and somebody accepts that post, it is not illegal because law provides for it...

...It is purely my personal view that after occupying the highest office, we should not do any adjudicatory rule.