Justice A.S. Oka: The judge known for taking suffering seriously

IT HAS BEEN 36 YEARS SINCE THE LEGAL SCHOLAR, PROF. UPENDRA BAXI wrote his seminal article "Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India", in which he extolled the virtues of social action litigation/ public interest litigation (PIL). In his words, the Supreme Court had, at the time, become the "last resort for the oppressed and bewildered".

In recent years, a critique of the PIL by various legal scholars and commentators, looking at the period subsequent to 1990 has emerged. The focus, which initially was on the most vulnerable, has shifted to concerns of the "general public" or the "middle-class", such as corruption, traffic management, environment related concerns, disposal of hazardous waste. On several occasions, the poor were understood to be the enemy of public interest, which explained, for instance, the scores of slum evictions resulting from orders passed in PILs, since the early 1990's.

Secondly, as legal academic Anuj Bhuwania argued, the entire endeavour was laced with contempt for procedure as something that comes in the way of substantial justice, through which the judges amassed massive powers to themselves. This way the petitioners' prayers became irrelevant, and the court had limitless power to do what it wanted.

Justice A.S. Oka's tenure as the Chief Justice of the Karnataka High Court (CJ) from May, 2019 to August of this year suddenly saw the Karnataka High Court becoming a constitutional shield for the protection of the rights of many marginalised communities including slum dwellers, sweepers, prisoners and transgender persons. The means to this end was the PIL.  His use of the PIL jurisdiction is a forceful response to the critics of PIL, mainly because of a few key things he did differently.

Justice Oka took the PIL's version of  locus standi seriously, played a facilitative role instead of a "command-and-control" role, ascertained factual determination from various sources including affidavits from public servants of the State, and exercised restraint when the rigors of a trial were required in ascertaining facts and when technical expertise was required.

Justice Oka's tenure as the CJ has been a case in point for exercising a delicate balance in the PIL jurisdiction, while simultaneously ensuring protection from fundamental right violations of the most vulnerable. Justice Oka often exercised restraint but at the same time, he was unafraid to fulfil the mandate of the Constitution, even if it meant displeasing the executive. Such judicial orders also came at times the people of Karnataka needed them the most.

The right to protest and requirements of Section 144 of CrPC

The Bengaluru Police Commissioner on December 18, 2019 passed an order under Section 144 of the Code of Criminal Procedure, 1973 (CrPC), banning all public rallies, which were to be held on December 19, against the Citizenship (Amendment) Act, 2019, in Bengaluru. Additionally, all permissions previously granted for conducting protests were cancelled as a result of the order. This order was challenged before the Division Bench headed by CJ Oka in the case of Sowmya R Reddy versus State of Karnataka.