By Prof Upendra Baxi
On May 24, 2025, Justice Abhay S Oka retired from the Supreme Court after close to four years on the bench and 383 judgments and served on 594 benches, testifying to hard juristic labour of creative interpretation of law and the Constitution. Most of Justice Oka’s (40 percent) judgments relate to criminal cases, whereas 14 percent of judgments relate to Civil matters apart from service (10 percent) and property (8 percent) matters. But these percentiles derived from the Supreme Court Observer may not be wholly persuasive because Justice Oka administered a “Midas touch” (converting base metal into gold) of a 75-year-plus constitutionalism to almost every sphere of law and litigation. It is difficult to analyse Justice Oka’s contribution to the constantly evolving jurisprudence of Indian Constitution@75; this article only addresses some salient aspects of his normative labours.
FEARLESS INTEGRITY AND HARD WORK
Perhaps, in today’s world where social media posts lead to the persecution, and even prosecution, on the grounds of the jurisprudence of hurt feelings, Justice Oka’s decision (with Justice Ujjal Bhuyan) in Javeed Ahmad Hajam, is obvious when police action on “hurt sentiments” has become rampant.
The petitioner was a professor at Sanjay Ghodavat College and a member of a parents and teachers WhatsApp group. He posted (between August 13, 2022, and August 15, 2022), two messages: 1. “August 5 – Black Day Jammu & Kashmir and “14th August – Happy Independence Day Pakistan. Furthermore, was included on their mobile with the message: “Article 370 was abrogated, we are not happy.”
Justice Oka described the day of the abrogation a “Black Day” an “expression of protest and anguish” and as legitimate comments and criticisms. He observed: “If every criticism or protest of the actions of the state is to be held as an offence under Section 153-A, democracy, which is an essential feature of the Constitution of India, will not survive”. Further, “opportunity to peacefully protest against the decisions of the government is an essential part of democracy”. Not fully resting there, he added: “Now, the time has come to enlighten and educate our police machinery on the concept of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution and the extent of reasonable restraint on their free speech and expression. They must be sensitised about the democratic values enshrined in our Constitution”.
Must this remain a dialogue of the hearing-impaired or the national and regional police academies and their state cohorts will soon act on the matter? I need not elaborate on the significance of their Lordship’s decision; it is writ large in its date of delivery: March 7, 2024 (the death anniversary of Govind Ballabh Pant, one of the architects of modern India and its illustrious Union home minister for a long time).
THE CONSTITUTIONAL PEDAGOGY OF NOISE POLLUTION
The legendary contribution of Justice Oka will long be remembered by grateful Indian citizens, and “scholactivists”, much beyond the shores of Maharashtra. The prelude to Mahesh Vijay Badekar case (2017) is of interest. As reported in the local media, Justice Oka was brought back after three days by Chief Justice Manjula Chellar, despite serious allegations of bias levelled by the state. So swift was the anguished response by the Bombay Bar, and others, that the case was restored to Justice Oka who proceeded to hear substantial submissions on merits of the case. The learned Justice decided many a matter, but the primary holding was to fully enforce the provisions of the Noise Pollution Act, towards implementation the state seemed to be scandalously indifferent.
Notable remains the insistence that any situation seeming conflict of fundamental rights must be resolved, as an integral aspect of the judicial duty, and a constitutional resolution of the matter ought to be scrupulously devised. Significantly, Justice Oka does not rely on the fatigued doctrine of “reasonable classification” or the more newly fangled notions of proportionality. Rather, appealing is the Supreme Court’s ruling that “noise can disturb our rest, sleep and communication. It can damage our hearing and evoke other gynaecological and pathological reactions.
The apex court has considered the ill effects of noise pollution. Research has proved that a loud noise during peak marketing hours creates tiredness, irritation and impairs brain activities so as to reduce thinking and working abilities. Further, noise pollution… engulfs every nook and corner of the globe, reaching its peak in urban areas. Industries, automobiles, rail engines, aeroplanes, radios, loudspeakers, tape recorders, lottery ticket sellers, hawkers, pop singers, etc., are the main ear contaminators of the city area and its marketplace”. On this register, Justice Oka proceeds to archive alarming situations that arise from the indifference of the state towards the implementation of the law and the rules against such pollution.
He thus quotes from a US scientific report saying that such acts “threaten foetal development. Noise has been linked to low birth weights. Levels of noise which do not interfere with the perception of speech by adults may interfere significantly with the perception of speech by children as well as with the acquisition of speech, language, and language-related skill”. Not merely it stresses foetal health, but emphasizes the finding that “children have more difficulty in understanding language in the presence of noise than adults do. Reading ability also may be seriously impaired by noise.”
This poignant concern with the rights to health of the yet unborn elevates a new social learning formation to a new role and status, going much beyond the legislation and rule, even when deeply solicitous of these. The learned justice insists on “creating general awareness towards the hazardous effects of noise pollution”.
Towards this end, he proposes that “Suitable chapters may be added in the textbooks which teach civic sense to the children and youth at the initial/early-level of education. Special talks and lectures be organised in the schools to highlight the menace of noise pollution and the role of the children and younger generation in preventing it. Police and civil administration should be trained to understand the various methods to curb the problem and also the noise pollution and the role of the children and younger generation in preventing it. Police and civil administration should be trained to understand the various methods to curb the problem and also the laws on the subject.” Further, while “the state must play an active role in this process, Resident Welfare Associations, service clubs and societies engaged in preventing noise pollution as a part of their noise pollution and the role of the children and younger generation in preventing it. Police and civil administration should be trained to understand the various methods to curb the problem and also the laws on the subject.”
THE RIGHT TO PRIVACY [R2P]
In the context of a PIL challenging a complete ban imposed on the slaughter of bulls and bullocks in Maharashtra, including a “ban… on possessing the flesh of cow, bull or bullock slaughtered within and outside the state”, Justice Oka observed that “by introducing Section 9B, at the trial of certain offences, a negative burden was put on the accused”. We do not here tarry with the reasoning of Justice Oka, and the wisdom of precedents cited that compels the conclusion that “violation of Article 25(1) of the Constitution of India is not at all attracted” in this case; what is more interesting is the judicial articulation, in seven leading cases, of R2P, prior to its fuller recognition later as a fundamental and even natural right by the apex court in Puttaswamy decision (in 2017).
What strikes, with awe and wonder, is the following passage (in Para 192) of the learned opinion:
“As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health. As observed earlier, even a right to sleep is held as a part of right to privacy which is guaranteed under Article 21 of the Constitution of India. In fact, the state cannot control what a citizen does in his house which is his own castle, provided he is not doing something which is contrary to law. The state cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice. A citizen has a right to lead a meaningful life within the four corners of his house as well as outside his house. This intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21. The state cannot prevent a citizen from possessing and consuming a particular type of food which is not injurious to health”.
My high regard for the rights of animals (who I name as NHA (non-human animal persons) raises here a question: In what situations good constitutional practices may abrogate altogether social plurality and diversity? I am content, on this score, to accept some limits offered here by Justice Oka.
In a sense, Justice Oka must be recognised as among the founders of the R2P because he finally holds that “Section 5D will have to be struck down as being violative of fundamental right guaranteed by Article 21 of the Constitution of India”. Subsequent to the Puttaswamy decision—the ongoing Frank Vitus case (see, Upendra Baxi, India Legal, “Big Brother Watching You”. April 11, 2024), proceeds to suggest how the R2P may confront even the newly pursued practice of the Indian police, making it a mandatory, as a condition for the grant of the bail to share the google pin during investigation.
COURAGE OF CONVICTION
The creativity in judicial interpretation always marches in Justice Oka with a rare courage of conviction that the responsibly for adherence to the rule of law and constitutionalism lies not just upon the leaders of governments (the executive and political parties) or the judiciary. All agencies of the State must act fully, and more rigorously, in accordance with the law and Constitution in conjunction with social action movements for change serving the rights to freedom guaranteed by the Constitution.
Courts and justices may function to establish a constitutional culture of peace and plurality, and co-equal dignity of esteem for all citizens. This necessarily vetoes (as Justice Oka said in his farewell address) a “Chief Justice-centric court” and calls for “a more democratic… administrative approach”, considering “the court’s diverse composition…”
Justice Abhay S Oka has diligently occupied a place of pride in the Indian judicial pantheon in difficult national times in a turbulent world.
—The writer is an internationally-renowned law scholar, an acclaimed teacher and a well-known author, always keen to learn from other views