Justice Oka’s Legacy: Liberty, Law, and Integrity

Justice Abhay Shreeniwas Oka’s retirement has stirred deep emotion within the legal fraternity. His elevation to the Supreme Court was a rare and hard-won victory for judicial merit—a welcome aberration in a system often clouded by opacity and executive pressure.

It came after a prolonged standoff led by former Supreme Court judge Justice Rohinton Fali Nariman, then a member of the Supreme Court’s five-judge collegium for appointments to the Supreme Court. For nearly 22 months, Justice Nariman stalled judicial appointments, insisting that both Justice Oka, then Chief Justice of the Karnataka High Court and the seniormost judge across all High Courts, and Justice Akil Kureshi, then Chief Justice of the Tripura High Court and second in seniority, be elevated to the Supreme Court.

By Nariman’s retirement in August 2021, the Supreme Court had eight vacancies against a sanctioned strength of 34 judges. After his retirement, the collegium headed by Chief Justice N.V. Ramana went ahead with Justice Oka’s name but chose not to pursue Kureshi’s. “The government would’ve been extremely unhappy if Kureshi’s name was pushed,” a retired Chief Justice of a High Court told this author.

The sidelining of Justice Kureshi, widely seen as retribution for having remanded Amit Shah to two-day CBI custody in the Sohrabuddin Sheikh fake encounter case in 2010 during his tenure in the Gujarat High Court, remains a stark reminder of the political shadow over judicial appointments. In any case, the government cleared Justice Oka’s name the same month Nariman retired.

One can now reasonably conclude that Justice Oka’s approach to judging was fundamentally grounded in the principle that the law must serve justice rather than perpetuate institutional convenience. His dedication to this philosophy was perhaps most poignantly demonstrated on his final working day, May 23, when he delivered 11 verdicts despite having attended his mother’s last rites in Thane just the day before. This commitment reflected his broader judicial ethos: that the administration of justice should not be constrained by convention or personal circumstances.

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While serving under Chief Justices like D.Y. Chandrachud—who, as this author argued in a profile of Justice Chandrachud for The Caravan, often hedged his judicial stance to avoid direct confrontation with political power—Justice Oka appeared to take a commendably different path. His approach, it seemed, was to uphold constitutional principles regardless of whom it might offend.

As he declared on his final day on the bench: “I always believed that a judge has to be very firm; a judge has to be very strict. And a judge should not hesitate to offend anyone. But I was harsh only for one reason. I wanted to uphold the principles laid down by our Constitution.” This was an articulation of a judicial ethic rooted in constitutional fidelity, not popularity or political accommodation—a stance that, in today’s India, is increasingly rare.

Oka’s integrity at the Bar

Justice Oka’s integrity as a legal professional was evident long before his elevation to the Bench. An illustrative episode from his time at the Bar reveals a man deeply committed to the ethics of the profession and the sanctity of the courtroom. In a case from 2002, Chandrakant Govind Sutar v. M.K. Associates, then-Advocate Oka successfully argued a matter before Justice A.M. Khanwilkar in the Bombay High Court, who pronounced a favourable judgment in open court.

However, Oka immediately brought to the judge’s attention that certain relevant precedents on the maintainability of the petition had not been cited during arguments. He requested the judge not sign the judgment and instead be re-heard, and at that hearing, placed those very decisions before the court, even though they went against his own client’s case. The petition was ultimately dismissed.

Justice Khanwilkar, moved by this rare display of professional honesty, recorded in his judgment a tribute to Oka’s conduct, praising his “sense of detachment” and his balancing of duty to the client with his overriding duty to the court. “The Code which obligates the Advocate to disregard the instructions of his client, if they conflict with his duty to the Court, is not a code of law— it is a code of honour,” Justice Khanwilkar said in his judgment, holding up Oka’s actions as a model for the Bar.

In a legal culture where partisanship can often override principle, Oka’s conduct—marked by integrity and a quiet courage—gave genuine meaning to the title that precedes every judge’s name: “Honourable”. Few judges have worn the tag with such quiet distinction.

Before analysing how Justice Oka’s judgments in matters of liberty stood tall, it is important to mention how one particular thing—his inability to take a decisive stand on the case of declared foreign nationals—disappointed some.

In April 2020, Rajubala Das, whose husband was declared a “foreigner” by a Foreigners Tribunal (FT) in Assam and has been languishing in a transit camp since 2018, had petitioned the Supreme Court seeking an end to the indefinite detention of persons who are declared foreigners by an FT—particularly those whose nationality could not be confirmed and whose deportation was not foreseeable.

These individuals, held in transit camps under very poor conditions, are effectively trapped in legal and humanitarian limbo. It was Justice Oka’s bench, which started hearing the matter in February 2023, that ordered the formation of a fact-finding committee, which went on to confirm the appalling sanitary and living conditions in these camps. However, the case never reached a conclusive outcome during his tenure.

While Justice Oka’s bench ordered deportation of those whose nationalities were identified, in February 2025, it prodded the Central government to file an affidavit outlining how it intended to deal with the other set of cases where nationalities were not known. The government dragged its feet but assured the bench that the issue was being “dealt with at the highest executive level”. The matter languished until Oka’s retirement.

It remains one of the few issues where Justice Oka’s moral clarity did not translate into judicial resolve: a missed opportunity to usher in any substantial reform or change in how courts approach the issue of stateless persons, contrary to the expectations his otherwise rights-affirming record might have generated. The issue of indefinite detention of declared foreigners will now be before a new bench.

Reining in the ED and PMLA

Justice Oka was one of the few Supreme Court judges who consistently and publicly held the Enforcement Directorate (ED) to constitutional scrutiny, even as the agency emerged as perhaps the most powerful arm of executive coercion in Modi’s India. Unafraid to call out its overreach, Justice Oka’s courtroom became one of the rare spaces where the ED’s sweeping powers were interrogated with rigour—and scepticism.

Just days before his retirement, a bench led by Justice Oka, consisting of Justice Ujjal Bhuyan, granted bail to Abdul Sathar, former Kerala secretary-general of the now-banned Popular Front of India (PFI), who was accused in a conspiracy to murder RSS worker Sreenivasan. Justice Oka remarked during the hearing: “For ideology, you cannot put someone in jail… This is the trend we find. It is because they have adopted a particular ideology [that] they are put in jail.” He expressed disquiet over the ED’s logic of preventive incarceration, noting sharply: “That’s the problem with the approach… The approach is we will keep the person behind the bar [to prevent future crimes].”

Justice Oka was unhesitant in politically sensitive cases too. In the ongoing Chhattisgarh liquor scam case, heard just weeks before his retirement, he lashed out at the ED’s vague and unsubstantiated claims. He noted a disturbing “pattern” in ED prosecution complaints, where sweeping accusations were made “without referring to specific material to support them.” Pressing for details, he asked the agency to explain its claim that the accused had earned 40 crores in proceeds of crime: “These are general allegations. What is the material to show that he has earned Rs.40 crores?” The ED had no credible answer.

As early as November 2024, Justice Oka had publicly questioned the ED’s track record, remarking in court: “Someday you must find out how many cases of a complaint under PMLA [Prevention of Money Laundering Act, 2002] have ended with trial and how many have resulted in a conviction.” It was a quiet indictment of the gap between the ED’s prosecutorial aggression and its dismal success rate—a reminder that the process often is the punishment.

These instances were a breath of fresh air. Justice Oka reaffirmed a basic principle too often forgotten in today’s India—the insistence on specific evidence, a fair and speedy trial, and the presumption of innocence. In that sense, Oka’s courtroom was a constitutional check, not a silent accomplice.

Laying down the law

It was not merely Justice Oka’s probing questions that ultimately brought relief to many caught in the ED’s dragnet. His authored judgments on the PMLA were far more consequential, for it is the written word that carries the force of law. Through a series of rulings, Justice Oka significantly clarified and limited the scope of the ED’s powers under the Act.

In Pavana Dibbur, he drew a sharp line against the ED’s habit of invoking PMLA through the backdoor: by clubbing non-scheduled offences with Section 120B of the Indian Penal Code (criminal conspiracy). Only when an accused commits a scheduled offence, as notified under the PMLA, like robbery, causing hurt to extort property, dishonestly receiving stolen property, etc., and uses those proceeds to commit money laundering, can the PMLA be invoked.

The Court held that the PMLA cannot be triggered via conspiracy charges if the underlying offence is not a scheduled one. This judgment ended this legally dubious tactic, and ought to force greater discipline in invoking the PMLA.

In Tarsem Lal v. Directorate of Enforcement, Justice Oka established a vital procedural safeguard: once the Special Court has taken cognisance of a PMLA complaint (akin to a charge sheet), the ED cannot subsequently arrest the accused unless authorised by the court. This, because filing a complaint and the court taking cognisance would mean the probe is over and hence, arrest would not be necessary. Moreover, if an accused appears before the court on summons, the stringent twin bail conditions under Section 45 of the PMLA do not apply. This created a crucial distinction between custodial arrests and summons-based appearances, offering significant protection to those targeted by the agency.

Another important ruling authored by Justice Oka came in Directorate of Enforcement v. Bibhu Prasad Acharya. Here, the Court held that sanction under the Prevention of Corruption Act is a prerequisite for cognizance of a PMLA offence against a public servant. By reaffirming the need for prior sanction, the Court closed a loophole that allowed the ED to bypass statutory safeguards in politically sensitive prosecutions.

Justice Oka stressed on the principles of transparency and fairness in Sarla Gupta v. Directorate of Enforcement, where the Court held that accused persons are entitled to access “unrelied materials”—documents and evidence in the ED’s possession that were not included in its complaint (charge sheet). This ruling was crucial because such material may contain exculpatory evidence, that is, material that could support the innocence of the accused.

While the ED typically discloses only “relied material”—the evidence it bases its case upon—Justice Oka underlined that the right to a fair trial requires the accused to be informed of all material in the agency’s possession, whether favourable or unfavourable. Denying access to unrelied documents could compromise the constitutional guarantee of a meaningful defence and an accused’s bail rights.

In a connected ruling, the Court affirmed that under the new Bharatiya Nagarik Suraksha Sanhita, an accused is entitled to a hearing before cognisance is taken of a PMLA complaint, thereby introducing another vital check on arbitrary prosecution.

In Ajay Ajit Peter Kerkar v. ED, Justice Oka granted bail to the former Cox & Kings promoter under Section 436A of the Code of Criminal Procedure (which prescribes a maximum period for which an undertrial prisoner can be detained, which is half of the possible sentence for the offence) after over three years in custody without commencement of trial. In doing so, he reiterated that an accused could get relief under Section 436A in a PMLA case too.

Perhaps the most sweeping relief came in Yash Tuteja & Anr. v. Union of India, where the Court quashed money laundering charges against former IAS officer Anil Tuteja and his son in the Chhattisgarh liquor scam case. Justice Oka and Justice Bhuyan underscored a foundational point: if there is no scheduled offence, there can be no proceeds of crime and hence, no offence under the PMLA.

Finally, in ED v. Subhash Sharma, the Court dismissed the ED’s appeal and held that when an arrest is illegal or procedurally vitiated, bail cannot be denied merely because of the strict twin bail conditions under Section 45 are unmet. This was a forceful reminder that legality of process is inseparable from legality of detention.

Together, these rulings form a significantly comprehensive pushback against the ED’s unchecked powers. Justice Oka’s judgments restored some procedural balance to a law that had come to symbolise state overreach.

What makes Justice Oka’s legacy even more striking is that he did not hesitate to push back—gently but firmly—against a bench of the Supreme Court itself that appeared to dilute the very safeguards that the Court had installed in the PMLA, which is that bail could still be granted under the Unlawful Activities (Prevention) Act and the PMLA if the accused suffered prolonged incarceration and there was no possibility of trial concluding anytime soon.

In February 2025, Justice Oka’s bench was confronted with the ED’s reliance on Assistant Director v. Kanhaiya Prasad, a judgment delivered by a bench led by Justice Bela Madhurya Trivedi, who was extremely conservative when it came to criminal matters. Her bench had cancelled bail in that case on the grounds of non-fulfilment of the stringent twin conditions under Section 45 of the PMLA. Justice Trivedi’s bench had observed that money laundering was a grave offence and criticised what it called the “casual” grant of bail by courts.

However, rather than allow that precedent to become a blanket bar on bail, Justice Oka’s bench carefully distinguished how that case was different. It noted that in Kanhaiya Prasad, the accused had been in custody for less than seven months and the trial was proceeding without undue delay—circumstances vastly different from the case before Oka, where prolonged incarceration was at play.

Justice Oka’s bench reaffirmed that bail jurisprudence under the PMLA must be grounded in factual context and guided by constitutional standards, as laid down in the Senthil Balaji and KA Najeeb cases. In this way, he ensured that Justice Trivedi’s order did not become another tool in the hands of the ED to jail individuals for years together. His interpretive response was not confrontational, but it was resolute, marking him as a judge willing to defend the principle of “bail, not jail”, even from within.

A judge for liberty

Justice Oka was equally committed to introspecting—and advocating for reforms—the judiciary’s own institutional failures. His repeated observations, both from the bench and in public forums, reflected a deep unease with the system’s growing insensitivity to liberty and procedural fairness.

In August 2024, while hearing a case involving cheating and forgery—offences triable by a Magistrate—Justice Oka remarked with visible concern: “Very unfortunate that now people are not getting bail even in magistrate triable cases…. And people have to come to the Supreme Court for this.”

In February 2025, he was even more direct: “There’s an element of truth in the allegation that courts aren’t granting bail in deserving cases.” He lamented how a once-simple bail hearing had now become a protracted ritual of “reply, rejoinder, sur-rejoinder”, consuming time and clogging dockets. His critique pointed not merely at the executive or investigative agencies, but at the judiciary’s own drift away from its constitutional duty to safeguard personal liberty.

Justice Oka’s concern for systemic decay extended beyond bail jurisprudence (philosophy). Delivering a lecture in March 2025, he offered one of the most searing self-critiques heard from a sitting Supreme Court judge: “In the last 75 years, we committed one fundamental mistake—we neglected our trial and district courts by describing them as subordinate or lower courts.”

He challenged the oft-repeated judicial self-congratulation that the common man has great faith in the judiciary. “I think we had no right to say that. This should be said by citizens, by litigants. We should ask whether the citizen is actually saying this.” Drawing from his visits to villages and prisons, he offered a counterpoint: “With a pendency of 4.54 crore cases, out of which 25–30 per cent are over ten years old, can we really believe the common man has great faith in this institution? We must acknowledge our flaws and deficiencies.”

That same month, in open court, Justice Oka expressed his dismay that the Supreme Court was routinely hearing bail pleas in cases that should have been disposed of at the trial court level. “The system is being burdened unnecessarily,” he said, warning that “a democratic country must not function like a police state.”

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At his farewell function, Justice Oka took the rare step of critiquing the institutional functioning of the very court he was retiring from. He contrasted this with what was in his opinion, a more democratic functioning of High Courts, where administrative decisions are taken by a committee of the five senior-most judges. This, he pointed out, stood in stark contrast with the apex court’s excessive centralisation. “Somehow I found, during the last three years and more, that the Supreme Court is a Chief Justice-centric court. And I think we need to change that,” he remarked.

He specifically flagged the opaque and selective listing of cases—a long-standing concern within legal circles. For instance, during Chief Justice Chandrachud’s tenure, this author had written about eight politically sensitive cases concerning critics of the ruling BJP government being withdrawn from senior judges and listed before a bench either headed by or consisting of Justice Trivedi, where relief was most definitely not granted. This was in violation of the Supreme Court’s own listing procedures and long-standing convention.

Justice Oka too was a casualty of such an opaque listing system when a matter related to a green ridge in Delhi was ultimately shifted from his bench by Chief Justice Chandrachud. In that case, Justice Oka had found Delhi Lieutenant Governor Vinai Kumar Saxena possibly lying to the Court in a tree-felling-related incident and was raising heat to uncover the truth. The matter has remained in limbo ever since.

Calling for a fixed roster system akin to that in High Courts, Justice Oka argued that such a reform would reduce arbitrariness and enhance institutional fairness. This, he said, could be achieved only by reducing manual interventions in the listing process to the least and suggested that AI and technology could be deployed to make case listing more rational, transparent, and just.

These were not mere farewell flourishes. They were the distilled concerns of a judge who had spent over two decades inside the judiciary and chose, even in his final moments on the bench, to speak truths that many of his peers prefer to whisper in private—if at all. Justice Oka’s institutional honesty, like his courtroom integrity, was uncompromising. It stemmed from a deep conviction that introspection is not a threat to the judiciary but a vital service to it.

With Justice Oka’s retirement, the Supreme Court has not merely lost a judge. It has lost a conscience and a believer in the idea that the Constitution must be protected not just in rhetoric but in practice. Justice Oka’s departure leaves the Court poorer—and the idea of justice a little lonelier.

Saurav Das is an investigative journalist writing on law, judiciary, crime, and policy.