Executive tends to violate rights, courts must act: Justice AS Oka at KHCAA event

Former Supreme Court judge Justice Abhay S Oka on Thursday underscored the role of the judiciary in maintaining a balance between individual rights and executive authority.

Addressing the Kerala High Court Advocates’ Association’s Constitution Day Law Lecture, he highlighted how the judiciary plays a vital role in upholding rights and ensuring accountability.

"There is always a tendency or attempt made by executive to violate the fundamental rights. Courts have to keep a check on such arbitrary actions to ensure that the executive follows law and constitution," said Justice Oka.

Presided over by Kerala High Court Chief Justice Nitin Jamdar, the lecture was centred on the theme “Holding the Executive to Account – Responsibility and Duty of the Judges.”

Kerala High Court judge Justice Anil K Narendran, KHCAA President Yeshwanth Shenoy, and KHCAA Secretary M.R. Nandakumar were also present on the dais.

Justice Oka emphasised that the judiciary's ability to hold the executive accountable is crucial to constitutional governance, noting that citizens are increasingly driven to approach courts for rights and entitlements that ought to be routinely granted.

"If the police or executive failed to honor and protect the fundamental rights guaranteed under Article 19 (1) (a) of the Constitution, it is the duty of the courts to step in and protect the fundamental rights and there is no other institution which can uphold fundamental rights," said Justice Oka.

He pointed to cases involving denial of pensions to armed forces personnel, failure to provide potable water to slum dwellers, and routine governmental inaction where basic rights are concerned.

"Someone must clearly ... say what is illegal... and what is legal. What is unconstitutional. And that somebody can be only the courts, our trial courts, and our iron juries... High Court(s) and Supreme Court," said Justice Oka.

Justice Oka emphasized that courts are crucial in defending fundamental rights and that this duty starts at the local level rather than just with the Supreme Court or High Courts.

He said that judicial oversight is an essential mechanism for safeguarding individuals and exercising administrative power in compliance with established legal standards.

“It is only when every non-constitutional action of the executive is checked, prevented, or shut down by the Court that the executive can remain within its bounds. Ultimately, the object is not to curtail the powers of the executive... the object is to ensure that the executive follows the law and the Constitution,” said Justice Oka.

Justice Oka cautioned that executive overreach frequently takes the form of subtle but systemic actions, such as illegal speech restrictions, denial of procedural rights, or decisions about the environment that disregard human dignity.

"Seventy-five years into our Republic, we cannot be seen to be so shaky on our fundamentals that the mere recital of a poem, or for that matter any form of art or entertainment such as stand-up comedy, can be alleged to lead to animosity or hatred amongst different communities. Subscribing to such a rule would stifle all legitimate expressions of view in the public domain, which is so fundamental to a free society,” explained Justice Oka.

Recalling historic examples like the trial of Bal Gangadhar Tilak, he said that merely because those in power find criticism objectionable, it cannot amount to sedition or criminal wrongdoing.

Justice Oka added that judicial responsibility extends beyond technical interpretations of law and requires moral courage. He said,

"We don’t become judges to become popular but for delivering judgments which may not be liked by many, by upholding the oath taken and not by worrying about the consequences but doing the duty as per the Constitution."

He also underscored the importance of dissenting opinions, citing the role of dissents in landmark decisions like Kesavananda Bharati, which have shaped constitutional limits on executive power.

As his address drew to a close, he also touched upon the need to increase public awareness about the Constitution of India.

"Today, a large section of our population is unaware of the Constitution. Has it worked in the way Dr Ambedkar expected? The answer, I’m afraid, would be very awkward," he said.

Chief Justice Jamdar supported Justice Oka's statements, stressing on the judiciary’s duty to remain independent and uphold constitutional values.

"An independent judiciary is essential to keeping the executive in check and its the duty of every judge to consciously uphold independence within themselves and remain free from bias or external influence," said Chief Justice Jamdar.

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