Born to Advocate Shreeniwas W. Oka on May 25, 1960, Justice Abhay S. Oka completed his Bsc and LLM from Mumbai University and enrolled as an advocate on June 28, 1983, and started practicing in Thane District Court in the chambers of his father
♦Did You Know? In 1985-86, Justice Oka joined the chamber of V. P. Tipnis, a former judge of the Bombay High Court and former Lok Ayukta.
He practiced for 19 years in the High Court, Appellate Side, Bombay in Civil, Constitutional and Service matters and specialised in all the matters. In 2003, he was appointed as an Additional Judge of the Bombay High Court. In 2005, he was appointed as a permanent Judge in Bombay High Court. He was appointed as the Chief Justice of the Karnataka High Court in 2019, before being elevated as a Supreme Court judge in 2021.
During his tenure as a High Court judge, he passed many orders on environmental protection and for better living conditions in Bangalore and Bombay. He is known for his orders on civil liberties. During the Covid-19 pandemic, he passed several orders protecting the rights of migrant workers and questioned the handling of the government.
♦Did You Know? Justice AS Oka at one point decided to become an engineer but gave up the idea midway and decided to join the legal fraternity instead.[1]
Justice Oka and PIL
♦Did You Know? During the tenure of Justice A.S. Oka as the Chief Justice of the Karnataka High Court, the Karnataka High Court suddenly become a constitutional shield for the protection of the rights of many marginalised communities including slum dwellers, sweepers, prisoners and transgender persons.
Justice Oka took the Public Interest Litigation`s version of locus standi seriously and used it in facilitative role as opposed to a “command-and-control” position, ascertained real dedication from diverse reassets along with affidavits from public servants of the State, and exercised restraint while the pains of a tribulation had been required in ascertaining statistics and while technical knowledge changed into required.
Justice Oka`s tenure as the Chief Justice has been a living proof for exercising a delicate balance in the PIL jurisdiction, even as concurrently making sure protection from fundamental right violations of the maximum vulnerable.
Justice Oka frequently exercised restraint however at the same time, is unafraid to fulfil the mandate of the Constitution, even supposing it intended displeasing the executive. Such judicial orders additionally got here at instances the people of Karnataka wanted them the maximum.
His conviction to uphold justice, harbingering social change and preserving administrative accountability can be reflected through his judgments like – right to protest and requirements of Section 144 of CrPC, Rights of the urban poor: illegal evictions, Right to shelter: upholding the state’s obligation to provide shelter to the homeless under Article 21 of the Constitution and ordering the setting up requisite night shelters for the homeless across urban areas in the State, right of prisoners, Secularism, inviolable right to legal representation, combating atrocities against Scheduled Castes & Tribes, implementation of prohibition on manual scavenging and judicial intervention in the COVID-19 crisis.
Notable Judgements at Supreme Court
Maniben Maganbhai Bhariya v. District Development Officer Dahod, 2022 SCC OnLine SC 507
In a detailed judgment stressing on the importance of the work done by the Anganwadi workers/helpers at the grassroot level, the bench of Ajay Rastogi* and Abhay S. Oka*, JJ has held that Anganwadi workers/helpers are entitled to gratuity under the Payment of Gratuity Act, 1972.
Writing separate but concurrent opinions, both the judges agreed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits.
K. Shanthamma v. State of Telangana, 2022 SCC OnLine SC 213
In an interesting case relating to corruption, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., acquitted a Commercial Tax Officer in spite of proved recovery of tainted currency notes from her. The Bench observed that though the recovery was proved in the absence of demand being conclusively proved conviction cannot be made under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.
Ajmer Vidyut Vitran Nigam Ltd. v. Hindustan Zinc Ltd., 2022 SCC OnLine SC 208
The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.
UCO Bank v. Krishna Kumar Bhardwaj, 2022 SCC OnLine SC 201
The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that non-supply of demanded documents is not sufficient to challenge a disciplinary inquiry unless it is showed what prejudice has been caused due to non-supply.
Bihar Industrial Area Development Authority v. Rama Kant Singh, 2022 SCC OnLine SC 32
In a case where the bench of Ajay Rastogi and Abhay S. Oka*, JJ was deciding an issue relating to Bihar Public Works Contracts Disputes, the bench has held that if any of the provisions of the Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 are in conflict with the Arbitration and Conciliation Act, 1996, the 2008 Act shall prevail to the extent of the conflict.
Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99
While deciding the instant appeal wherein the appellant challenged the externment order issued against him under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., quashed the impugned externment order observing that that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. The Bench held that,
“If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under Article 19(1) (d) of the Constitution”.
Horticulture Experiment Station Gonikoppal, Coorg v. Regional Provident Fund Organization, 2022 SCC OnLine SC 223
The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that any default or delay in the payment of EPF contribution by the employer under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 is a sine qua non for imposition of levy of damages under Section 14B and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.
Debananda Tamuli v. Kakumoni Kataky, 2022 SCC OnLine SC 187
In a case where it was argued that merely because husband and wife are staying separately since a long time, an inference regarding desertion cannot be drawn, the bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.
“The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.”
S.K. Supiyan v. CBI, 2022 SCC OnLine SC 164
In a breather to SK Supiyan, West Bengal Chief Minister Mamta Banerjee’s Election Agent in the Vidhan Sabha Elections held in 2021, the bench of L Nageswara Rao and Abhay S. Oka*, JJ has granted him anticipatory bail in the Nandigram murder case but has directed him to fully cooperate with CBI for investigation and to remain present for investigation as and when called upon by the investigating officer. The Court made clear that the pre-arrest bail is liable to be cancelled if it is found that the appellant is not cooperating for the investigation.
Jagathy Raj V.P. v. Rajitha Kumar S., 2022 SCC OnLine SC 152
While addressing the question of law with regard to lifespan of relinquishment of claim for consideration for promotion in educational institutions, the Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed,
“…the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its predominance and opportunity be available to him to serve when the next rotation becomes due…”
Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43
In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,
“We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”
Punjab State Cooperative Agricultural Development Bank Ltd v. Registrar, Cooperative Societies, 2022 SCC OnLine SC 28
The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.
“If a person while entering into service, has a legitimate expectation that as per the then existing scheme of rules, he may be considered for promotion after certain years of qualifying service or with the age of retirement which is being prescribed under the scheme of rules but at a later stage, if there is any amendment made either in the scheme of promotion or the age of superannuation, it may alter other conditions of service such scheme of rules operates in futuro. But at the same time, if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of rules retrospectively, that certainly will take away the vested/accrued right of the incumbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution.”
Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156
In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi* and Abhay S. Oka, JJ has directed that the accused be released on post-arrest bail by the trial Court.
Vinod Kumar v. Amritpal, 2021 SCC OnLine SC 1150
The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that once the prosecution establishes the existence of the three ingredients forming a part of “thirdly” in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”.
Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156
After granting bail to a 74-year-old arrested under the Unlawful Activities (Prevention) Act, 1967, as after the charge-sheets came to be filed way back in 2012, the charges were framed after 7 years and hearing was taking place only one day in a month, the bench of Ajay Rastogi* and Abhay S. Oka, JJ said that if this procedure is being followed in conducting the trial under the National Investigation Agency Act, 2008, it frustrates the very purpose with which the special Courts are designated.
Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000
The bench of Ajay Rastogi and Abhay S. Oka*, JJ has granted bail to Thwaha Fasal and Allan Shuaib, booked under punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 for alleged links with Communist Party of India (Maoist).
It was argued before the Court that though the investigation of the case was later on, transferred to National Investigation Agency (NIA), the NIA did not seek sanction for prosecuting any of the accused for the offence punishable under Section 20. Sanction was sought to prosecute Fasal and Shuaib for the offences punishable under Sections 38 and 39. In addition, a sanction was sought to prosecute Shuaib under Section 13.
Hence, in view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, it was noticed that a prima facie case of the accused being involved in the said offence is not made out at this stage.
State of M.P. v. Somdutt Sharma, 2021 SCC OnLine SC 829
“Overall activities and functions of the Irrigation Department would have to be considered while deciding the question whether it is carrying on manufacturing activities.”
The Division Bench comprising of Ajay Rastogi and Abhay S. Oka*, JJ., held that Irrigation Department was not a factory within the meaning of Factories Act, 1948 as there was no indulgence in manufacturing process in the Department. The Bench expressed,
“Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process.”
Nagendra Sah v. State of Bihar, 2021 SCC OnLine SC 717
The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.
“…falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”
SY Azhar SY. Kalandar v. State of Maharashtra, 2021 SCC OnLine SC 701
While noting the mitigating factors and circumstances in which a crime had been committed and considering that the parties are residing in the same village and are peacefully residing after the uncalled for incident had taken place, the Division Bench of Ajay Rastogi* and Abhay S. Oka, JJ., reduced the quantum of sentence for a conviction under Section 307 Penal Code, 1860.
Notable Judgements at High Court
♦Did You Know? Justice Oka’s bench, when he was sitting with Justice Riyaz Chagla, was accused by Advocate General Ashutosh Kumbhakoni of bias. This was when the bench was hearing PILs regarding noise pollution. Following the allegations, the then Chief Justice Manjula Chellur took away the matter from Justice Oka but after public outcry and support from the bar associations, the petitions were returned to the bench. Three days after levelling charges against the judge, the state government withdrew the allegations, tendered an apology, and claimed that it held the judge “in the highest esteem”.[2]
Girish Bharadwaj v. State of Karnataka, 2020 SCC OnLine Kar 445
A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. while addressing a petition with regard to release of information of people who contracted COVID-19 at Nizamuddin, Delhi, stated that, it is a policy decision and Court cannot interfere in the same.
Sandhya U. Prabhu v. State of Karnataka, 2020 SCC OnLine Kar 441
A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., while addressing a petition held that,
“…decision to keep open super markets 24×7 relates to purely a policy decision and nothing arbitrary in the said policy decision is found.”
Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 391
A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. asked the State Government of Karnataka to take cognizance on various significant issues that have been raised in wake of the outbreak of Corona Virus.
Mohammed Arif Jameel v. UOI, 2020 SCC OnLine Kar 539
While addressing a petition dealing with issue of migrant workers who had applied to be accommodated to the Shramik Special Trains to their origin State, a Division Bench of Abhay Shreeniwas Oka, CJ and B.V. Nagarathna, J. held that,
“though several orders have been passed by this Court from time-to-time, the State has not placed on record any transparent and fair policy for selecting persons out of those who registered on Seva Sindhu website.”
Vijayakumar Rai v. State of Karnataka, 2019 SCC OnLine Kar 2186
A Division Bench of Abhay S. Oka, CJ. and Mohammad Nawaz, J. directed the state government to refund the amount already deducted from the salaries of judicial officers by the end of February 2020.
MONKEYS DEATH – SUO MOTU; decided on 30-07-2021
A Division Bench of Abhay S. Oka CJ and N S Sanjay Gowda J. remarked that it is necessary to lay down the guidelines to ensure that inhuman and shocking incidents of animal cruelty are hereafter prevented.
The Court took up suo moto cognizance of large number of monkey deaths on the roadside in Belur Taluk of Hassan District on Wednesday night after 15 alive monkeys who were put in a large bag were found as per news reports published in the leading newspapers – Deccan Herald, Indian Express, Times of India, Prajavani, etc.
Sanathana Kalakshetra v. Bruhat Bengaluru Mahanagara Palike, 2020 SCC OnLine Kar 871
A Division Bench of Abhay S. Oka, CJ and M. Nagaprasanna, J., while addressing a matter held that,
“…right to construct unauthorized temple and that also on a footpath cannot be said to be an essential part of any religion or religious practice which can be protected under Article 25 of the Constitution of India.”
V. Mara Nayaka v. State of Karnataka, 2019 SCC OnLine Kar 681
The Division Bench of Abhay S. Oka, C.J. and H.T. Narendra Prasad, J. while not going into the legal issue involved, dismissed the petition and held that the act of the petitioner is not pro bono and should not be allowed to invoke the extraordinary jurisdiction of this Court by filing a Public Interest Litigation.
High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 762
A Division Bench of Abhay Shreeniwas Oka, CJ and Vishwajith Shetty, J., laid down the guidelines to be followed for payment of dues to the claimants in Motor Vehicle Accident Claim cases, Workmen’s Compensation Act, 1923 Matrimonial Cases and Land Acquisition Compensation cases etc.
Due to the partial functioning of the district and trial Courts in the State in view of the COVID-19 Pandemic, entry of litigants in the Courts premises has not been permitted.
High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 543
A Division Bench of Abhay Shreeniwas Oka, CJ and S Vishwajith Shetty, J., while dealing with many issues held that no legal basis for Family Courts insisting on personal presence of petitioners at the time of filing cases and presence of complainant while filing S. 138 NI Act case not necessary.
Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 442
A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., asked for the State Government’s response with regard to breach of social distancing norms at a political leaders house, incident of assault on doctors, nurses and ASHA workers and action being taken on the complaints filed with respect to domestic violence.
Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 448
A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathnna, J. held that , owners of seized vehicles due to breach of COVID-19 Guidelines may approach jurisdictional Police Officers for the same.
“…in case of such seizure of vehicles for the offences relating to breach of the directions concerning COVID-19, it will be open for the jurisdictional Police Officers to exercise the powers under sub- section (3) of Section 102 of Cr.P.C and to give custody of the vehicles in terms of sub-section (3) of Section 102 to the owners.”
KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020
A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.
SEBI v. Franklin Templeton, 2020 SCC OnLine Kar 1650
A Division Bench of Abhay S. Oka CJ. and Ashok S.Kinagi J., while allowing the present writ petition held, “the decision of the Trustees (the Franklin Templeton Trustee Services private Limited) to wind up six Schemes mentioned in paragraph-1 of the Judgment by taking recourse to sub-clause (a) of clause (2) of Regulation 39 of the Mutual Funds Regulations cannot be implemented unless the consent of the unit-holders is obtained in accordance with sub-clause (c) of clause (15) of Regulation 18.”
High Court of Karnataka v. State of Karnataka, WP No. 7338 of 2020
A Division Bench of Abhay S. Oka, CJ and S. Vishwajith Shetty, J., in view of the present situation of COVID-19 outbreak held that,
“…course adopted by the Courts while recording the plea of the accused and recording the statement of the accused under Section 313 of CrPC through video conferencing hearing will be a step taken to reduce the physical presence of the stakeholders in the Courts precincts to meet the exceptional situation and to secure the functioning of the Courts by following the best possible health practice.”
Mohammed Arif Jameel v. Union of India, W.P. No. 6435 of 2020
A Division Bench of Abhay S Oka, CJ and Aravind Kumar, J. gave a slew of directions regarding vaccine allocation. The Court took stock of the various aspect related to COVID vaccination in the State.
† Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. has put this report together
* Judge who has penned the judgment.
[1] https://www.indiatoday.in/law/story/karnataka-hc-justice-abhay-shreeniwas-oka-elevation-supreme-court-collegium-1842605-2021-08-19
[2] https://www.indiatoday.in/law/story/karnataka-hc-justice-abhay-shreeniwas-oka-elevation-supreme-court-collegium-1842605-2021-08-19