Judges should be prepared to deliver verdict against popular morality: Justice AS Oka

Judges shouldn't be swayed by popular opinion and personal morality when deciding cases and delivering verdicts, former Supreme Court judge Justice Abhay S Oka said on Wednesday.

Once a decision is made, a judge should not be concerned about its future implications, he added.

"The basic rule is that judges shouldn’t be swayed by popular opinion. That is the concept of morality for judges. When a judge heard a case, he should apply his mind and decide on which side is the law. Once he has decided how to deliver verdict, he should not be bothered about future prospects - he must boldly deliver the verdict," Justice Oka said.

He was speaking at a lecture series hosted by The Global Jurists on the topic Morality in the Judiciary: A Paradigm or a Paradox.

He further said that a judge should be prepared to deliver judgments which might not be to the liking of the majority.

"The traditional concept of morality is always controlled by popular opinion and as judges we don't get controlled by popular opinions. As a judge, I should be ready to deliver a verdict which is not liked by majority. That’s the duty of a judge….judges are bound by the oath under the Constitution."

The retired judge also cited an instance of how Justices S Muralidhar and Anup Bhambhani made a direct impact on the life of people by sitting at midnight to ensure safe passage for riot victims.

He noted that the bench not only convened around midnight to ensure the victims were given safe passage but also took steps to ensure compliance with their orders.

Such instances show how judges take responsibility for the consequences of their decisions and this must be duly acknowledged, he stated.

"We talk about dissenting judgment and why there are dissenting judgments? We talk about Justice HR Khanna. He was bound by his oath, he was not bound by what politicians feel, people in power feels. We talk about Kesavananda Bharati but younger generation of lawyers have forgotten that three judges who gave majority verdict within a day or two days, they were superseded…," Justice Oka highlighted.

Justice Oka in his speech emphasised that judges must keep aside personal beliefs, religious views or philosophies from decision making.

"When we talk about morality in the context of judges you must remember that it is not the morality of common parlance. A judge of any court, when takes an oath to uphold the law and the constitution. A judge before assuming office he may have his own ideas of morality. It may be a religious belief or a faith. A judge may have particular concept about morality. He may practice a particular religion or believe in a particular philosophy. We all are human beings. When he becomes a judge he must keep his views in a watertight compartment while discharging duties as a judge. What should be concept of morality for judges? 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.

Justice Oka also opined that judges while dealing with criminal cases, are often not in a position to separate their personal notions of morality from law.

"Judges are concerned with law and not morality in common parlance. I can site several examples. After reading the statements of witnesses, it is possible that the judges do get influenced by the nature of allegations and sometimes it may happen that you may get influenced by such incidents…there are heinous crimes which are committed nobody can deny that. There are crime against woman. But where sometimes minds of judges get influenced, judges are also human beings, you must remember that."

He also flagged instances when politicians, including Chief Ministers, publicly declare an accused will be hanged.

Such public discourse puts undue pressure on trial court judges, he stated.

However, a judge cannot decide the case based on societal morality but has to weigh the evidence and decide the matter as per law.

On moral convictions, Justice Oka stated that they have no place in the judicial system and convictions must be based solely on legal evidence.

Justice Oka recalled being asked how bail could be granted in economic offences involving public money. He responded that while financial stakes may be a factor, if legal conditions for bail are satisfied, a judge’s personal sense of morality has no role to play.

"We, as judges who have taken oath under the constitution, all that we have to see is weather the procedural requirement has been followed before passing order. Because of you don't follow norms and procedure, the order will be in complete violation of Article 21 of the constitution."