Justice AS Oka: A Tribute

For a young practitioner, the early days in litigation are a daunting experience. Even while the monolith that is the Indian judiciary is renowned for its glacial pace, there were some courtrooms that made you wonder if the problem of pendency was really as acute as they said. Justice Oka’s courtroom at the Bombay High Court was one such place. The pace that you had to keep up with was as real as the lectern on which you rested your brief.

The world sped up when you walked in. His online board would not merely move, it would jump. Courts generally progress at a steady clip through the day, which prompts lawyers to describe a board’s sudden rapidity as “a collapse.” Suffice it to say that in his courtroom, even with all parties present, the board often moved like it was collapsing.

The first time I was to appear before him, I missed my matter—it was listed as item no. 20; I was shadowing my senior in another courtroom and waited until item 15 to run down a single spiral staircase only to find that he was already at item 25. Aghast, I made inquiries and was told that the counterparty had been directed to take instructions on an aspect of the matter and it would be listed the next day. Phew. I was then helpfully informed, "If you’re at item20 before Justice Oka, you should be sitting there at item 1.”

The judges you appear before in the first few years of your career have the most profound effect on your development as a litigator. Anyone watching could see that a large part of the work Justice Oka did was done quietly, behind the scenes. Being in his courtroom was an education, not least because he often knew your brief better than you did.

If you had not pleaded your factual case as you must, you were in trouble. If you made it to the lectern on time, you were frequently directed to your weakest link (usually with an identified para and page number) and asked what you had to say about it. A wordy or waffling response was swiftly interrupted. Arguments were brief; courtroom exchanges with the judge were Socratic. And then before you knew it, he was on to the next matter asking someone else what they had to say about para 17 at page 36 of their affidavit.

Justice Oka did this in matter after matter, every single day, for years, as a single-judge at the Bombay High Court. When he headed a Division Bench, a heavy daily board would be followed by a production board, a clutch of extremely urgent matters to be taken up at 5 PM to ensure that nothing would be lost for want of time.

As days went by, that sense of being overwhelmed was replaced by appreciation and sheer awe for what we were witnessing. My chamber colleagues and I would frequently watch him and whisper, "How does he do it? Does he have more hours in a day?"

We all know the answer. Justice Oka does not have any secret reserves of time. What he has is a deep, abiding commitment to his oath as a judge, an enduring capacity for hard work and an unparalleled work ethic. His last week at the Supreme Court has shown that his capacity and commitment is as remarkable as it is rare.

Despite his laser-sharp focus and speed, Justice Oka did not strike one as impatient. It did not seem to matter if you were a senior or a junior—if you had a point to make, he would listen and if you meandered, that would be it. Justice Oka was no-nonsense, but never disrespectful. And he was the uncontested centre of his own courtroom, commanding it effortlessly, without having to resort to aggression.

Justice Oka’s impact on Bombay and the State of Maharashtra (the seat of his parent High Court, where he served for over a decade) has been significant.

He grappled with questions of competing interests with a firm but humane hand. One such matter was a Public Interest Litigation (PIL) (Animal and Birds Charitable Trust v. MCGM & Ors.) dealing with the plight of horse and ponies used to run horse-carriages in South Bombay. Often run without procuring licenses under the Mumbai Municipal Corporation Act, 1888, this activity was found to be cruel to animals and illegal, but also required a balancing of the interests of carriage-owners. The final judgment included directions to the State government to ensure the rehabilitation of the families running such businesses.

In another PIL (Bombay Environmental Action Group v. State of Maharashtra) that sought the protection and preservation of mangroves in the State, Justice Oka applied the public trust doctrine and found that the State was not only duty-bound to protect and preserve mangroves but was also required to anticipate and attack the causes of their degradation. With each of these matters, he did not rest at pronouncing a detailed judgment but ensured that petitions were listed for compliance from time to time, recognising that far-reaching solutions often require continuing engagement with the authorities.

In a challenge to a provision of the Maharashtra Regional and Town Planning Act, 1966 (Janhit Manch v. State of Maharashtra) which permitted the en bloc regularization of illegal structures constructed before 31^st December 2015, Justice Oka questioned whether the entire purpose of town-planning would be “thrown to the winds” if this provision was implemented. He held that the provision did not enable Planning Authorities or the State government to compound unauthorized developments that were contrary to the Development/Regional Plans or the Development Control Regulations. All illegal constructions were ordered to be demolished. The decision is currently in appeal before the Supreme Court.

He has also been a champion of fundamental rights and civil liberties, interpreting Article 25 of the Constitution as encompassing the right of an individual to declare on official documentation that they do not belong to any religion (Ranjit Mohite v. Union), and striking down as unconstitutional a provision that made illegal the possession of beef within the State of Maharashtra though procured outside its territorial jurisdiction (Shaikh Zahid Mukhtar v. State of Maharashtra).

His time as Chief Justice in Karnataka and his tenure on the Supreme Court have also been eventful. Those who see success of the sort that Justice Oka has seen often start to buy into the myth of their own greatness, shedding any humility they may have come with. Curiously, he seems immune even to this. Being self-referential has extended only to admitting error. More than once, he has spoken of how the judiciary must introspect, must acknowledge its faults and grapple with public criticism. His critique of the dismal quality of access to justice, the neglect of our trial courts and his open acknowledgement of the erosion of public trust in the judiciary is unique. It reveals a person who cares deeply enough to view the world he inhabits with the eyes of truth.

Over the last few days, much has been said about Justice Oka and his “spine”—his independence and fearlessness have been plain to see and are worthy of note. But it is only one of many remarkable features that define his judicial career and, arguably, the man himself.

Abhay Oka is not just a great judge; he is the ideal judge. It has been our privilege to witness him.

Gulnar A Mistry is a litigator at the Bombay High Court.