Justice Abhay Shreeniwas Oka’s tenure as the Chief Justice at the Karnataka High Court shines bright as an example of judicial activism within the four corners of the law, imbued with a constitutional philosophy, write MOHAMMED AFEEF and BASAWA PRASAD KUNALE, as he gets set to serve at the Supreme Court.
IT has been 36 years since the legal scholar Prof. (Dr.) 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.
The court did not go into the question of whether the State Government had grounds available to pass a valid order under section 144(1) CrPC. Instead it examined whether the order would stand the judicial scrutiny in the light of well-settled parameters laid down by the Supreme Court last year in its judgment in Anuradha Bhasin versus Union of India. The court examined whether a) there was a prior inquiry before issuing the order and a justification for such a blanket ban, b) it was the least restrictive measure in terms of restricting the right to protest, c) such a prohibitory order was a proportionate action with respect to the requirements of law and order, and d) this was being exercised in an urgent situation.
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These questions needed to be answered in the order passed under section 144 CrPC itself but instead it stated it was “in the interests of maintaining law and order”, etc. and hence, was declared illegal by the court. The significance of this judgment is that it reiterates that power must be backed with justification.
Rights of the urban poor – illegal evictions
The cases pertaining to the urban poor or marginalised communities show that CJ Oka exercised the PIL jurisdiction while keeping the most vulnerable population in mind, and effectively deployed two techniques, the dialogic review and the continuing mandamus to ensure enforcement of fundamental rights.
The Karnataka Police on January 18 and 19, 2020, demolished more than 100 makeshift huts on a private land during an eviction drive in Kariyammana Agrahara, a locality in the suburb of Bellandur, and rendered almost 1000 slum residents homeless in a span of 2 days. The Police, in its eviction notice, stated that the reason for eviction was that the tenants were “illegal Bangladeshi migrants”.
The eviction and the notices were challenged by the People’s Union for Civil Liberties, Karnataka (PUCL-K). Firstly, the court immediately stayed any further evictions. Subsequently, the court on several occasions, inquired about the authorization for the evictions and pushed the state and its instrumentalities to respond. Thereafter, the Bruhat Bengaluru Mahanagara Palike (BBMP) confirmed that the demolitions were unauthorised and the official who had given the order was identified and suspended.
However, the court did not stop here, and through the continuing writ of mandamus, the court asked the state what steps would be taken to rehabilitate or compensate the victims of the illegal eviction. The court then issued orders directing the State Government to pay INR 14,100 as compensation amount for loss of property and INR 29,000 towards the cost of building temporary sheds.
Right to shelter
More recently in March this year, while hearing the constitutional challenge to the Karnataka Prohibition of Beggary Act, 1975, in which the petitioner PUCL-K had prayed for the court to ensure voluntary shelter to homeless persons, the court first ordered the State Government to conduct a survey of homeless persons in the state and submit its results along with the details of night shelters.
Subsequently in July this year, the court noted with shock, the shortage of homeless shelters vis-a-vis homeless persons and as per the requirement under the applicable law to set up 1 shelter per a population of a lakh in urban areas. While holding that it is the obligation of the state to provide shelter to the homeless under Article 21 of the Constitution, the court ordered the setting up of all requisite 166 night shelters for the homeless across urban areas in the State in a time bound manner.
Rights of prisoners
Based on the direction of the Supreme Court with regard to unnatural deaths in prisons, a suo motu PIL was initiated by the Karnataka High Court. Subsequently, a Division Bench headed by CJ Oka passed a slew of orders, from computing compensation amount to the next kin of prisoner who died due to unnatural cause, to reiterating the law that a prisoner cannot be deprived of their rights under Article 21 of the Constitution. The court made a critical examination of the prison system itself and the prevalent inhumane conditions.
Similarly, when an under-trial prisoner approached the Division Bench seeking better health conditions considering the rising number of COVID-19 cases within the prisons, the court directed the state to implement appropriate guidelines for rapid testing of jail inmates and for quarantine facilities within the prisons. Further, the Bench considered the petition as an opportunity to monitor the implementation of the decongestion of prisons, responding to the Supreme Court’s call as a solution to curb the spread of the virus.
The court directed the State to comply with the Karnataka Prison Manual, 1978, in a time-bound manner, and to appoint medical and para medical staff in the prisons as mandated. It was a shocking revelation during the hearing when it was observed that all 7 posts of the Chief Medical Officer were vacant and out of the 20 posts for Medical Officers, 13 were vacant and out of the 114 sanctioned posts of paramedical and medical staff, only 28 posts were filled.
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Being cautious of the overreach of the PIL jurisdiction, the Division Bench of the High Court headed by CJ Oka dismissed a plea in Bharata Punarutthana Trust versus The State Of Karnataka to stop non-Hindus from working in offices under the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (the “Act of 1997”). The court interpreted the Act of 1997 in the spirit of constitutional philosophy and secularism, while noting the fact that there was no general prohibition on appointing an officer or servant who does not profess the Hindu religion. The restriction of appointing Hindus only under the provision, was applicable only to statutory offices, and the court further clarified that the restriction would not be applicable to the employees appointed for carrying out day to day activities such as Group ‘D’ employees or persons appointed for data entries.
In its order, the court also observed that the State Government officers or the Police officers, irrespective of their religion, faith and belief, should effectively assist all religions in celebrating their respective religious festivals.
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The Inviolable Right to Legal Representation
In February 2020, 24 advocates practicing in Karnataka challenged a resolution passed by the Hubli Bar Association, holding that none of its members would be allowed to appear for three Kashmiri Students, arrested on sedition charges for allegedly raising pro-Pakistan slogans and posting it on social media. The Division Bench of the Karnataka High Court headed by CJ Oka observed in this matter that the resolution passed by the Bar Association records that the accused are anti-nationals who have committed heinous crime. The court noted that as far as the criminal justice delivery system in our country is concerned, one can proudly say that Kangaroo trials are not conducted and even foreign nationals, against whom there is an allegation of commission of a serious offence, are given a fair trial.
The court had also directed the Hubli Commissioner of Police to provide police protection to the advocates who were travelling from Bangalore to file a bail application for the students, as it was practically impossible to find a local advocate willing to file a Vakalatnama due to the chilling effect of the resolution.
Subsequently, relying on the Supreme Court’s 2010 decision in A S Mohammed Rafi versus State of Tamil Nadu, the court held the resolution to be illegal, after which the Hubli Bar Association themselves withdrew the impugned resolution. This allowed the advocates of the Kashmiri students to apply for bail and argue it before the Hubli Sessions Court.
Combating atrocities against Scheduled Castes & Tribes and implementation of prohibition on manual scavenging
The Division Bench headed by CJ Oka took an active role in the effective implementation of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the “Atrocities Act”) and the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (the “Manual Scavengers Act”), the two pioneer welfare legislations in furthering the interest of the Dalit communities.
With respect to a huge number of pending cases in violation of Section 4(2)(e) of the Atrocities Act, which mandates completion of investigation within 60 days from filing the FIR, the court directed the state to provide an explanation for the delay and to arrange regular training for the Investigating Officers and the Special Public Prosecutors appointed under the Atrocities Act.
With respect to the delay in appeals filed against the acquittals under the Atrocities Act, it was observed that the prosecuting officers were preparing opinion of appeal only after obtaining certified copy of the judgment. However, the court, while embracing the e-courts facility, encouraged its effective usage by directing the Director of Prosecution to frame guidelines to rely on the judgment made available on Computerized Information System or National Judicial Data Grid, and remarked that there was no need to wait till receipt of the certified copy to form an opinion.
Furthermore, the meetings of the District Level Vigilance and Monitoring Committees constituted under Rule 17 of the Rules under the Atrocities Act for the purpose of reviewing the implementation of the provisions of the Atrocities Act, as well as the relief and rehabilitation facilities provided to the victims, were not being conducted regularly as contemplated under sub-rule (3) of Rule 17. Therefore, the court directed the State to ensure such meetings are held at least once in 3 months.
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The court took a similar line of reasoning in passing interim orders for effective implementation of the Manual Scavengers Act and the Rules thereunder, wherein it expressly noted that there was a need for “continuous monitoring” and exercising the power of issuing “continuing mandamus”.
While examining the root cause of the manual scavenging being open defecation, the court accordingly directed the local authorities to construct an adequate number of sanitary community latrines and to maintain it with cleanliness and hygiene and most importantly, to sensitize the citizens about the effects of open defecation. Further, the court directed proper constitution of the State and District Level Survey Committees as contemplated under the said Rules and to ensure the Committees publish the final list of manual scavengers after conducting a survey and that thereafter, based on the list, the State was directed to come up with the rehabilitation measures for the manual scavengers as mandated under the Manual Scavengers Act and Rules thereunder.
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Judicial intervention in the COVID-19 crisis
One of the most crucial interventions by the Karnataka High Court was during the first and then, the second wave of the COVID-19 pandemic. During this crisis, the question was of basic survival of the most vulnerable population.
In the first wave, the emphasis was on food security of the poor, children, transgender communities, sex workers and other marginalised sections of the society which were most adversely impacted by the lockdown. At the critical juncture when migrant workers were desperately trying to get back home and the Supreme Court refused to intervene, CJ Oka did. Notably, the Karnataka High Court very clearly held the position that it would not substitute its wisdom for the Government and take over the running of the Government but instead ensure that executive action and policy conform to the Constitution.
Meticulously applying the dialogic review method, the court’s approach had been to ask the State Government of Karnataka to respond to the grievances put forward by the petitioners regarding violations of fundamental rights. The court often puts forward suggestions to the Government to ensure constitutional compliance and elicits responses both in terms of executive action and policy. In case of a response deemed insufficient by the court, it has gone on to pass orders.
Through this method the court ensured that ration was distributed to all, by the production of any Government ID as opposed to only the ration card. The State was to additionally provide a “dry ration kit which shall consist of 5kg rice, 2kg dal, half litre oil, half kg sugar, half kg salt and appropriate quantity of spices as a minimum requirement”.
The court ensured dignified travel of migrant workers through free trains for a period of time, ensured protection kits to frontline workers (Powrakarmikas), ensured payment of wages due to the workers, etc. Importantly, many of these plans that allowed for these reliefs were provided by the State Government to the court by way of affidavits, after a nudge from the court.
During the second wave, a similar method was deployed to attempt the efficient allocation of hospital beds, adequate oxygen supply and life-saving drugs.
Pointing to Justice Oka’s sensitive approach with the COVID-19 crisis, Justice D.Y. Chandrachud of the Supreme Court remarked, “When the dust settles, what we will have in mind is CJ Oka holding out a flower to a staff member in the registry who resumed work after quarantine”.
This gesture was emblematic of the empathy and care characterized his orders, especially in the COVID-19 PIL.
Justice Oka’s legacy as Karnataka High Court Chief Justice
Justice Oka’s tenure as Chief Justice at the Karnataka High Court was an example of judicial activism within the four corners of law but imbued with a constitutional philosophy.
Justice Oka’s judgments, while within the four corners of the law, embodied a vision of the Constitution rooted in respect for the dignity of the suffering individual, be he/she a prisoner, manual scavenger, transgender, slum dweller, illegal migrant or a Kashmiri student. All those whose rights were dispensable in the dominant imagination of the nation, are not marginal within the four corners of the Constitution.
Justice Oka’s constitutional craft embodied an unfailing allegiance to the spirit of the Constitution based on an equal respect for all persons.
(Mohammed Afeef and Basawa Prasad Kunale are advocates practicing in the courts of Bangalore including the Karnataka High Court. The authors thank Arvind Narrain for his inputs. The views expressed are personal.)