The Loya verdict

Print edition : May 11, 2018

Judge Brijgopal Harkishan Loya.

The case was heard by a three-judge bench comprising Chief Justice of India Dipak Misra, Justice D.Y. Chandrachud (shown here) and Justice A.M. Khanwilkar. Photo: Rajeev Bhatt

The case was heard by a three-judge bench comprising Chief Justice of India Dipak Misra (shown here), Justice D.Y. Chandrachud and Justice A.M. Khanwilkar. Photo: Kamal Narang

Prashant Bhushan, a senior lawyer representing the petitioner in the case, addressing the media outside the Supreme Court after the judgment on April 19. Photo: Shanker Chakravarty

The Supreme Court’s judgment dismissing the petitions seeking an independent probe into Judge B.H. Loya’s death in 2014 leaves crucial questions unanswered.

ON April 19, the Supreme Court bench of Chief Justice of India (CJI) Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud held that there was no merit in the pleas seeking an independent and impartial probe into the death of Judge Brijgopal Harkishan Loya. The circumstances surrounding the death of Loya, a district judge in Maharashtra, on December 1, 2014, and the hearing by the Supreme Court of the petitions seeking an impartial probe into them had led to much of the turmoil in the Supreme Court in recent times.

“The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry,” the bench held in its judgment.

During the hearing, the bench dissuaded the petitioners’ counsel from wasting their time proving their bona fides and repeatedly assured them that they had its trust and confidence. However, the judgment concluded: “The conduct of the petitioners and the interveners is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process.” Therefore, the judgment, questioning as it does their bona fides and the nature of public interest in the matter, is nothing but bizarre.

On January 12, the four senior-most judges of the Supreme Court held a press conference to challenge the alleged arbitrary administrative decisions of CJI Dipak Misra. One of the points raised was his assignment of this case to a “preferred bench” of his choice without following the principles of roster allocation recognised under the Supreme Court rules and by convention.

That decision was soon reversed, and CJI Dipak Misra decided to have the case heard by a three-judge bench presided over by himself despite a plea by counsel for recusal of the other two judges on the bench, Justices Khanwilkar and Chandrachud.

The plea was based on the grounds that they hailed from the Bombay High Court and knew the two judges in the High Court—Justices Bhushan Gavai and S.B. Shukre—who were with Judge Loya hours before his death and had given interviews stating that his death was natural. The Supreme Court rejected this plea, stating that a decision whether a judge should hear a case was a matter of conscience for the judge. Maintaining institutional civilities between or towards judges is distinct from the fiercely independent role of the judge as adjudicator, the bench held.

Suspicious circumstances

The suspicious circumstances surrounding Judge Loya’s death were first brought to light by an investigative story that appeared in T he Caravan magazine in November 2017. Before his death, Judge Loya was hearing the Sohrabuddin Sheikh fake encounter case in which Bharatiya Janata Party president Amit Shah was an accused. Judge Loya had insisted that Amit Shah should appear before him during the proceedings of the case.

Judge Loya’s sister Anuradha Biyani and his father, Harkishan, had, in their interviews to The Caravan, alleged that Loya had complained about immense pressure being brought on him to acquit Amit Shah. Deeply disturbing questions emerged about Loya’s death, and they referred to inconsistencies in the reported account of his death, the procedures followed after his death, and the condition of the judge’s body when it was handed over to them. Although the family had sought a probe into Loya’s death, none was ever set up.

Importantly, the Supreme Court judgment records, citing The Caravan interviews, that both Anuradha Biyani and Harkishan alleged that former Chief Justice of the Bombay High Court Justice Mohit Shah, who has since retired, had offered Loya a bribe of Rs.100 crore and a house in Mumbai in return for a favourable judgment. But the Supreme Court strangely does not consider this vital circumstantial evidence or an allegation that merits a further probe. “The allegations against the Chief Justice of the Bombay High Court are hearsay,” the judgment concludes.

In 2012, the Supreme Court ordered that the Sohrabuddin Sheikh case be shifted from Gujarat to Maharashtra to preserve the integrity of the trial. It also ordered that the trial be heard by the same judge from start to finish. But, in violation of this order, the judge who first heard the trial, J.T. Utpat, was transferred from the CBI special court in mid 2014 and replaced by Loya.

The judgment, again, does not consider the decision of the Administrative Committee of the Bombay High Court to transfer Judge Utpat suspicious, which merits a probe. Judge Utpat was transferred on June 25, 2014, after he declined an application by Amit Shah for exemption from personal appearance. Strangely, the bench concluded that Judge Utpat’s transfer had no bearing on Judge Loya’s death.

On November 30, 2014, Loya was in Nagpur to attend the wedding of the daughter of a fellow judge, Sapna Joshi. He was purportedly staying at Ravi Bhavan, a government guest house for VIPs in Nagpur’s Civil Lines locality, along with the judges he had accompanied from Mumbai to Nagpur. But the records of the guest house do not show Loya’s name as one of its guests that day.

The Supreme Court did not find the statements of the four judicial officers—Shrikant Kulkarni, Member Secretary, Maharashtra State Legal Service Authority; S.M. Modak, Principal District Judge, Pune; V.C. Barde, District Judge, City Civil Court, Mumbai; and Roopesh Rathi, District Judge, Baramati—who were with Judge Loya on that fateful day suspicious. They had given statements to the Commissioner, State Intelligence Department of the Maharashtra government, which prepared a discreet inquiry report in the wake of The Caravan story. Citing their statements, the report concluded that Loya’s death was due to natural causes.

The Supreme Court held: “The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind…. Reading them, it is clear that they have been submitted without premeditation. The four judicial officers acted responsibly…. Each of the four judges has acted with a sense of duty….” It continued: “….the line of submissions in this case indicates an unfortunate attempt to use every possible ploy to cast aspersions on members of the district and higher judiciary. That senior counsel chose with all seriousness to make those submissions without a sense of responsibility, and without verifying the basic facts reveals a disturbing state of affairs.”

Judge Loya, as the statements of Judge Kulkarni and Judge Modak indicated, complained of chest pain at about 4 a.m. on December 1, 2014. “His colleagues who were with him took a decision in good faith to take him to Dande Hospital, which is in close proximity to Ravi Bhavan. The issue in the present case is whether Judge Loya died a natural or unnatural death. To attribute motives to his colleagues who were with him and took immediate steps to shift him to a hospital nearby is absurd, if not motivated. In hindsight, it is easy to criticise actions which were taken by human beings when faced with an emergency. It is easy for an observer sitting in an armchair at a distant point in time to assert that wisdom lay in an alternate course of action. That can never be the test for judging human behaviour. The conduct of the colleagues of Judge Loya in attending to him is not in question. They did their best under the circumstances, acting entirely in good faith,” the Supreme Court concluded, thus dismissing the allegations that Judge Loya could have been taken to a hospital better equipped to deal with his chest pain than Dande Hospital. He was shifted from there to the Meditrina Institute of Medical Sciences in Nagpur, where he was declared dead on arrival.

“To find fault with the judges for this course of action is unacceptable,” the Supreme Court held, adding: “They acted in good faith to ensure medical treatment to their colleague. Their conduct cannot be questioned.”

The bench further observed: “We must lean in favour of the version of the four judicial officers unless strong and indisputable circumstances are shown to doubt their credibility. This would be in the larger public interest, to uphold the independence and integrity of the institution.” The bench made a reference to The Caravan story where it reported the conversation Judge Loya had with his wife on the night of November 30, 2014, informing her of the fact that he was staying at Ravi Bhavan with the judges who had accompanied him to Nagpur. “By casting unfounded aspersions on the judicial officers who had accompanied Judge Loya, the petitioners have revealed the real motive of these proceedings, which is to bring the judiciary into disrepute on the basis of scurrilous allegations. We find no basis or justification to allow the (petitioner’s) request for cross-examination (of the four judges),” the bench observed before rejecting the application for cross-examination.

The bench also alleged that the Centre for Public Interest Litigation (CPIL), an intervener in the case, sought to create evidence to cast doubt on the theory that Judge Loya had suffered a heart attack. The CPIL’s counsel, Prashant Bhushan, had submitted the views of medical experts that Judge Loya’s ECG report, which the State government submitted to the court, did not reveal any heart attack. The bench alleged that Prashant Bhushan’s efforts to collect evidence in this regard bordered on an attempt to misrepresent the facts and mislead the court. Holding that the conduct of the petitioners and the interveners scandalises the process of the court and prima facie constitutes criminal contempt, the bench took a “dispassionate view” and chose not to initiate contempt proceedings against them “if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law”.

If the credibility of the judicial process is based on its moral authority, as the Supreme Court claims in this judgment, to many, it seems seriously compromised, with its rejection of the demand for a fair probe into the circumstances of Judge Loya’s death.

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