Justice Abhay S Oka does not sidestep difficult questions. His responses are marked by a constant return to principle: propriety in judicial appointments, independence from ideological labels and restraint in speaking on ongoing matters. For him, the judiciary’s credibility rests not on convenience, but on discipline and transparency.

In Part I of this conversation with Bar & Bench’s Debayan Roy, Justice Oka shares his views on appointments, bail and more. He addresses the elevation of the Chief Justice of India’s nephew to the Bombay High Court, how the Collegium should deal with government inaction on judicial appointments, the perception that his father was connected with the RSS and more.

Debayan Roy (DR): You began your career in your father’s chamber in Thane. Looking back, how much did those formative years with him shape you as a lawyer and a judge?

Justice AS Oka (J Oka): I practiced almost for two years before the trial court. That is one court where you learn basics...Pleadings is something which is of vital importance, because entire edifice is built on pleadings and the art of cross examination. These basics helped me throughout my career as a lawyer in the High Court and till Supreme Court...Therefore, I always tell young members of the Bar that if you want to practice in the High Court, it is necessary for you to practice before a trial court at least for a couple of years.

DR: Judicial appointments have been seen as a 'give and take' exercise between the judiciary and executive, with the latter sitting on a number of recommendations despite having no real say in the process. Do you think it is time the Collegium took drastic steps to tackle these delays? What would you suggest?

J Oka: If we go by the record, now we have recommendations of the Supreme Court on the website for the last several years. Then we have a record in the form of notifications issued by the Central government appointing judges of the High Court. Invariably, you will find a delay of 9 months, 10 months, more than that. So it has become order of the day.

I will tell you something interesting. On 28th of July 2025, the Supreme Court Collegium recommended 3 names for being appointed as judges of the Bombay High Court. Their names were cleared on 13th August 2025, hardly within two weeks...On 19th of August 2025, the Supreme Court Collegium approved the names of 14 advocates for being appointed as judges of the Bombay High Court.

Most interesting thing is...on 25th August, there was a recommendation made for appointing 2 judges of the Supreme Court. On 27th August, both, all 14 recommendations for the Bombay High Court and 2 recommendations for the Supreme Court were cleared...

In my long experience, I have seen it happening for the first time that the time gap between the date of Collegium recommendation and date of actual appointment to High Court is less than four months. I have never seen it happening. That is number one. Number two, I have never seen the Government of India clearing a list of Bombay High Court judges within a span of 8 days. This has never happened. And the third interesting thing is all 14 names were cleared. This has also never happened. Some names are usually held back.

Now, I am part of the Bombay High Court. I am very happy that Bombay High Court got these 14 plus 3 judges very quickly. But we are discussing here the issue of principles. When 27th August, 14 names were cleared within a span of eight days. As on that date, there are number of other recommendations pending of other High Courts, for months together.

In fact, one of the last recommendations for the Bombay High Court was in September 2024. It took almost 8 months for the government to clear those names. And I can understand that while Bombay High Court names were cleared in a great speed, the same urgency could have been shown in respect of other recommendations which are pending.

If this is going to become a new normal - government clearing all names recommended by Collegium within 8 to 10 days - it must be welcome. But if it is not normal, it is not a rule, it is by way of exception, then it is a cause for concern.

Now, there are limitations on the Collegium taking up the matter with the government. I think the simplest thing which can be done is there is a contempt petition pending filed by Bangalore Bar Association alleging breach of directions issued in two judgments of the larger bench. Even that petition can be taken up on the judicial side. In fact, I have flagged this issue in one of the judgments which I delivered in April. I referred to the data published on the website of the Supreme Court and I have mentioned how there is a delay. So, therefore, the best thing will be to take up that contempt petition which is pending before the Supreme Court for quite some time.

DR: Does clearing the name of CJI Gavai’s nephew, Raj Wakode, as Bombay High Court judge, while CJI is in office not compromise the perception of judicial independence?

J Oka:  I will make my views very clear. Firstly, if this situation arises that there is a recommendation made by a High Court of a candidate who is a close relative of the Chief Justice or member of the Supreme Court Collegium or a consultee judge...obviously, the judge concerned has to recuse. If there is a really meritorious candidate, the question is whether the judiciary should be deprived of him. But then the Chief Justice in this case should have recused. I do not know whether he has recused and then he should have expanded the Collegium by adding one more senior judge. Secondly, even the interaction should have been with the newly constituted Collegium...This is the legal aspect.

The other issue is of propriety, whether it should have been done. Now, as far as propriety is concerned, the concept of propriety differs from person to person.

DR: Would you have allowed your nephew to take an oath of office while you were the Chief Justice of India?

J Oka: It is a hypothetical question, but still I can say that I would have avoided.

DR: The recent publication of a Collegium dissent has triggered debate. Should the reasons for all Collegium decisions be made public? How do we balance transparency with the privacy of the concerned judges?

J Oka: We have to balance transparency with privacy, no doubt about it. And part of the dissent could have been uploaded. We do not know what are the contents of that dissent. I am not on this case of Justice Pancholi. Take a case where in dissent, a Collegium member writes something adverse personally about the candidate. Maybe that can be masked and the relevant portion can be published. But, only by publishing a resolution, we do not bring about transparency. I am worried about something else.

If one judge had a strong objection, the question is whether the other Collegium members debated on those objections...and then there was a conscious dissent taken by four others that we do not agree. So, this is actually the real part of transparency.

We are dealing with dissent by a sitting Supreme Court judge...Of course, a judgment of the Supreme Court says that dissent can be taken by majority. If the process has to be conducted in an appropriate manner, the dissent should have been discussed threadbare. The grounds of dissent should have been gone into and then a decision could have been taken.

Of course, we are groping in the dark. We do not know whether there was any detailed discussion. But, normally my experience is that it is not a one-time process. Unofficially, the Chief Justice discusses the names with the members of the Collegium, maybe with some other senior judges who come from the same High Court. And then ultimately in the Collegium meeting, a decision is taken. But in this case, what was the decision making process, we do not know.

All that I can say is part of the dissent, without compromising on the privacy of the person concerned, should have been published because we are dealing with not only appointment of a judge of the Supreme Court, but appointment of a judge who is going to become Chief Justice of India for a pretty long time...And I hope that there was a very detailed discussion, debate on the views expressed by a member of the Collegium. And that's the real transparency - that if somebody raises an objection, you go into that objection.

DR: There is a belief that your father was linked to the RSS. Did that belief ever have any influence on your judgeship, or is such a linkage entirely misplaced?

J Oka:  Factually, I must correct you. My father was alive till 2017. I became a judge in 2003. From my childhood, I have not seen him attending any RSS shakha. At most, he may have been associated one of one or two trust with which RSS may have been associated. So, I don't think that anybody can say that he was a member of RSS...

...secondly, before you are appointed a judge, you deal with various cases. Now, as a lawyer, I must have appeared for almost all political parties...as a lawyer, I don't think we are concerned with any philosophy and the kind of practice which was there in Bombay High Court and the time which we are required to devote to the work, it was impossible for at least me to do anything except practice.

When you become a judge, you are a completely different person, you take oath under the Constitution...to uphold ideals. When you sit as a judge, you look at the case, there's a law laid down about bail...it is your duty to uphold Article 21 - liberty is the most important thing - or freedom of speech and expression...

...In the case of a bail, you may feel that this is a very heinous offence. But you don't get influenced by that. Ultimately, there are parameters laid down for grant of bail, whether case is made out for or not. For example, if the offence is under UAPA, those stringent conditions (for bail) may not have been fulfilled. But if there is long incarceration and trial is not likely to start, the law is very clear: then you must give benefit of Article 21, release him. Your personal inclinations cannot and should not influence your role as a judge.

I'll give you one example. We consider Justice Krishna Iyer as one of our greatest judges. No doubt, even his orders were criticised. His order granting stay in Prime Minister Indira Gandhi's election petition was criticised. But we can't forget that he was an active member in politics; he was a minister in one of the cabinets in Kerala. And I don't think anybody has alleged any bias against him - that he belonged to a particular political philosophy and that was reflected in his judgments. So we are least concerned with the personal inclinations as a lawyer. The question is whether he is a good lawyer, sound lawyer, whether he has inclination to do work of a judge.

DR: Years ago when the State accused you of bias in the noise pollution matter, you faced it directly. What should be the standard response when governments allege bias against a judge?

J Oka: Firstly, only because some litigant alleges bias against you, you should not recuse. In what cases judge should recuse, there are standard norms...But in the facts of the case, when I was told in the morning that application for transfer has been moved, though I declined to recuse, I stayed my hand till afternoon because I told the lawyers that since a transfer petition is pending before the Chief Justice of the Bombay High Court, we'll defer the hearing till afternoon.

So this should be the approach - that after alleging bias, you are told that transfer application has been moved before the appropriate court, then you should stay your hands for a while.

If only because bias is alleged, judges start recusing, it will be very easy thing for party to get rid of a judge. The proper approach is: don't get bogged down because of allegations. Only if you feel that you should recuse, then you should recuse...

DR: Is India's judiciary truly independent? What are some of the realities we have to face and how do we remedy them?

J Oka:  This question has to be really answered by members of the Bar, the litigants and the common man. I can talk about me, I can't talk about others. But if there are allegations with material against somebody, which indicate that there is some kind of a compromise on independence, surely that has to be dealt with in accordance with law.

And I believe that lawyers or litigants can always make constructive criticism of a judge. But it can't be that without any basis motives are attached to a judge. Because we have to take the overall picture. We live in adversarial system, one party is bound to lose. Therefore, only because somebody has lost or suffered an adverse order, without any basis, such allegations should not be made and if at all they are made, they should not be entertained.

DR: If you had the power to make three changes to the way the Supreme Court functions, what would you suggest?

J Oka: Firstly, I always said, even during the time when I was a judge, that there should be a fixed roster as in the High Court. There should be an order of the Chief Justice laying down that if there is a recusal, it will go automatically to a particular bench...so that it rules out manual intervention by the registry.

The second reform I suggest is that there should be auto listing, in the sense that if a case is ready after rectification of objections, the day all objections are rectified, it should be immediately placed...so that the lawyers don't have to go out of the way and make some efforts to get the case listed.

On a day, there are 50 cases before the court. I'm talking about Tuesdays, Wednesdays and Thursdays. It is impossible to take all 50. The practice which should be followed is that cases which cannot be taken up should be assigned a date, maybe a longer date, which personally I used to do...It can't be that the case has not reached, there is no date given and the lawyer has to make a lot of efforts to get it listed.

So these are the basic three changes which are very simple and these changes are only with a view to bring about transparency and help the cause of litigants.

DR: In the context of the recent stray dogs order, do you think the Court sometimes does more harm than good by passing impractical orders, despite having the best of intentions? How does the Court ensure that it does not do this?

J Oka: I will not comment upon this case, but I will give an example. There are rules under the Environment Protection Act. One set of rules deals with solid waste management; they lay down what every local authority should be doing. Now if you don't comply with those rules, then what you are doing is you are helping pollution. So ultimately it is the function of the writ court to issue directions that those rules must be implemented in a time-bound schedule and continuing mandamus should be exercised in such cases.

Now the question sometimes crops up is when the orders of the court run contrary to the rules...I don't find fault with the courts, because the authorities, the state, they don't implement rules. For example, in this case, the issue was of implementing Animal Birth Control (ABC) rules. So surely the courts can direct them to implement the rules and court can monitor it...

DR: The Supreme Court has been a polyvocal institution since inception. While you consistently held that bail is the rule and jail is the exception, other judges sometimes held otherwise. On principles like these, do you think it is necessary for judges of the Court to speak in one voice?

J Oka: Now, we are talking about bail. Now, as far as law relating to bail is concerned, it is fairly well settled...And when you say this, there's no question that anybody can make departure from the settled law. Law has to be implemented.

But in bail, what happens is, if you study the orders passed by the court, not only law, but factual situation has to be considered while granting bail. What are the allegations which are reflected against the accused in the charge sheet? If there are antecedents, what is the kind of criminal record? Merely saying that he has 10 cases will not be sufficient. Suppose in all 10 cases, out of 10, he is acquitted. In 5 other cases, he is on bail.

So there are many factual aspects involved when you apply law to the facts. And maybe while applying the factual aspects, the approach of the court may be differing, because judges are after all human beings. But as far as law is concerned, there can't be any departure. Settled law has to be applied to the facts of the case.

Justice Bashir Ahmad Khan is a former Chief Justice of the Jammu & Kashmir High Court. He also served as Acting Chief Justice of the Delhi High Court and judge of the Madhya Pradesh High Court.

In conversation with Bar & Bench' s Ummar Jamal, Justice Khan speaks on infrastructural challenges faced by courts, corruption in the judiciary, the conduct expected of judges and more.

Edited excerpts follow.

[Watch the full interview here]

Ummar: In 2024, Justice Gita Mittal voiced concerns over the inadequate infrastructure of the J&K High Court. Do you think such deficiencies impact the justice delivery system?

Justice BA Khan: Lack of infrastructure is not an issue limited to Jammu and Kashmir. It's an issue which is there, confronting the institution at the national level...It all depends on whether your Chief Justice is dynamic. If he is, then he can get the requisite things done. But mostly, you see that Chief Justices come from outside, and they go on leasing their time here, and so they don't focus on the requirements of infrastructure, nor do they care to assert to get requisite funds, because funds are to be given by the government. Now, unless you compel the government to give you funds...for example, the infrastructure which I created in my time was not done for about 20–30 years. I remember a block of the High Court, which I ultimately discovered was pending for 20 years. That was because of inaction...

...If you talk in terms of budget, the judiciary has a minimal budget. It's in the national budget and the state budget also. It is being treated as a no-priority. Judiciary is a no-priority as against the government, which is the executive branch, and the executive branch is holding the purse...if you have to make the judiciary actually independent, then it must be enjoying its own financial jurisdiction and financial domain.

Ummar: With e-filing and virtual hearings rising post-COVID-19, do you think greater technology adoption will improve access to the courts?

Justice Khan: Technology will help only when you have a basis created for use of that technology...We were given training in Delhi in computerisation. None of the judges took it seriously, and none of them, except Justice Madan Lokur, knew what to do with it. So, if you use technology, the waste of time caused by physical appearances and all those things will stop, and it will facilitate the quick disposal of cases, only if the judges are trained.

Ummar: The J&K government has finally approved the establishment of a National Law University. Do you think existing legal institutions in Jammu & Kashmir have been able to provide quality education? How will the new National Law University transform the region’s legal education landscape?

Justice Khan: Legal education has not been satisfactory, and not only in Jammu & Kashmir. I was a part of this revival of legal education at the national level. The National Law University at Bangalore (NLSIU) was the first which was established at that time. Justice AM Ahmadi, who was the Chief Justice of India, was leading the campaign for legal education because it had come down to a level where, if a student would not get anything anywhere, he would ultimately seek admission in some law college and come out with a certificate and then go to the court.

That is how this five-year course started. And first, it was established in Bangalore. Then we had a number of quality institutions...

...If your faculty is not good enough or competent enough, your product is not going to be good enough. I’m not talking of private colleges here, because those are only fulfilling a formality. So, that way, you can’t expect that from a private college in Jammu & Kashmir...

...Second is that the education given in such institutions is unrelated to the field of litigation in the courts practically. For example, if you study in a private college here and if you go to the court and if somebody asks you, “Please draft this application for me,” you will not be able to draft because you have not been told how to do it.

Ummar: What is your take on the Justice Yashwant Varma controversy? How much of a reality is corruption in the judiciary?

Justice Khan: Corruption is something which necessarily nobody can detect at the time of appointment. Yes, we take care of going through his records. There are agencies like Intelligence Bureau (IB) and others who go and investigate, but their investigation is also faulty...

...corruption is something that exists. I have said it in many debates and interviews that it will be unrealistic to say that 'no, no, we are dudh ka dhula (pure as milk)' and all that stuff. Nobody is dudh ka dhula, even in the judiciary. (Former Chief Justice of India) Justice SP Bharucha once said that it is 20%; some say it is 50%. But the fact of the matter is that corruption exists in judiciary in varying degrees.

Now, I don’t know how this truckload of cash came into this judge’s house and how it was set on fire and how it vanished suddenly and why no FIR was filed at that time, why the police did not act; these are all mysterious things. And ultimately, they justified it in the name of the independence of the judiciary: “Oh, if we had acted then, it would have harmed the independence of the judiciary.” That’s a bakwas (nonsense) argument.

But in Justice Varma's case, I was satisfied that the Chief Justice Sanjiv Khanna acted according to the rulebook. See, we have no accountability law existing at this time. The only law we have is the Judges (Inquiry) Act of 1968. This comes into play when a judge is under impeachment. Now, Justice Varma’s case should go to that inquiry under that Act. If they are dispensing that inquiry, that is going to be a flaw, a legal infirmity which Justice Varma can challenge tomorrow because this gives him an opportunity of being heard.

Ummar: What are the qualities that a judge must embody to uphold the independence of the judiciary?

Justice Bashir: I repeatedly say that a judge is a human being; he comes from the same place, same society. You are a lawyer today; tomorrow, you’ll be a judge. So why should I expect that you should be angelic? Now, broadly, the qualifications a judge must have first is his honesty and integrity. Then his knowledge of law...he must be fair and impartial. You can’t be a judge subscribing to an ideology like that of (Allahabad High Court judge) Justice Shekhar Kumar Yadav - condemning a community or attacking a community. How can that happen? When you subscribe to the oath of a judge you, owe your allegiance to the Constitution. You cease to be a Muslim or Hindu...Every person, up to the point of appointment, may have whatever ideology, but the moment he takes an oath, he has to shed all his past...

...You know what is the biggest problem in the judiciary today? The biggest problem is lack of judicial approach, lack of judicial attitude, lack of judicial compassion. These have to be in the candidate. If you have a candidate like a bureaucrat who gives tarikh (adjournments), then what are you selecting?

Now, if I dismiss 10 revision petitions in a day, I’m a good judge? He may be a very 'fast-moving' judge...But nobody knows whether he is doing justice by doing that or not. Whether he is getting hold of the aggrieved person’s issue or not - that is non-existent.

Ummar: What are some of the reasons why pendency figures are only growing? What role do judges play in alleviating the situation?

Justice Khan: 80–90% judges are bureaucratic. They move the file from here to here. Just as in a secretary, you’ll find file moving here and there, and if you pay somebody something, then your file will go from one table to the other table. Judges are not bureaucrats. They have to do justice...you are getting your salary only for that. You are not getting it for listening to Queen’s English from a big lawyer.

Lack of infrastructure is another problem. I have seen my subordinate courts, where civil judges are writing judgments that take them five hours only because they don't have a stenographer. In that five hours, they could have disposed of five cases. They don’t have a place to sit. You’ll see in most of the states, you have some 50% subordinate courts working in tenanted premises. In Madhya Pradesh, I saw a civil judge sitting on a cotton box because he had no chair.

Similarly, shortage of judges...Even if you increase the judges’ population, it’s not going to get rid of the problem because unless you change their attitudes, what problem will get solved? I had suggested that you have some few thousand retired judges just now, and last time, there was a proposal that they should be appointed as ad-hoc judges. You can have most of the things cleared by them — engage them for one or two years.