By Amritananda Chakravorty
On 19th April, 2018, the Supreme Court of India dismissed the series of petitionsseeking an independent probe into the death of CBI Special Judge Loya, who allegedly died of cardiac arrest on 1st December, 2014. Judge B.H. Loya was hearing the Sohrabuddin encounter case, wherein Amit Shah was the main accused, when he died. The story first brought out by the Caravan in November, 2017 indicated many suspicious circumstances surrounding the death of Judge Loya, and how it seemed ‘unnatural’. This created a huge outrage in the media and in public domain, thereby forcing the State Government to institute a ‘discreet enquiry’ into the matter on 23rd November, 2017.
Following this, two petitions were filed in the Bombay High Court asking for an independent and fair investigation into Judge Loya’s death. Surprisingly, similar petitions were filed in the Supreme Court, which then ordered the transfer of the petitions filed in Bombay High Court to itself, much to the chagrin of the Petitioners in the High Court, i.e., the Bombay Lawyers Association. It must be remembered that the case of Judge Loya was initially allocated to Justice Arun Mishra’s bench, which seemed to have triggered the unprecedented press conference by the four seniormost judges on 12th January, 2018.
Consequently, Justice Arun Mishra recused himself from the matter, and the Chief Justice of India, Dipak Mishra, allocated the matter to his own bench, though concerns about the bench allocation still remained. Some of the apprehensions were also expressed during the proceedings, wherein the Court did not ask the State of Maharashtra to even file a reply affidavit in 10 hearings, and it reserved the judgment on 16th March, 2018.
In a judgment running into 114 pages, which is more rhetoric than substance, written by Justice D.Y. Chandrachud, the Supreme Court dismissed the petitions, leaving more questions unanswered than before. The judgment is basically premised on the fact that the statements of four judicial officers made to the Director General of State Intelligence Department during his ‘discreet enquiry’ were infallible and there was no need to impute any mala fide to the four of them. According to the Court, these judges had no personal connection with the matter and promptly responded with their statements and questioning their veracity would be an insult to the judiciary, while ignoring the inconsistencies between the statements. However, the Court failed to note that there exists no law that places judicial officers on a higher footing than other citizens. Importantly, these statements were not made on oath, and the Court refused to direct the judicial officers to tender their statements on affidavits, or to be subject to cross examination.
The Supreme Court dealt with the two most important issues, i.e., lack of ECG on record and the doubts about the veracity of the post mortem report, in the most perfunctory fashion. It completely ignored the critical fact that there was huge doubt whether any ECG was conducted on Judge Loya when he was taken to Dande hospital or not, but the Court relied on other documents, which made a passing reference to ECG, to conclude that an ECG was conducted, without actually having it on record! Similarly, the Court glossed over the doubts pertaining to the post mortem report, which noted that there were no ‘injury marks’ on the body, which were contrary to the claims of the family members.
Be that as it may, the crux of the issue is that the Supreme Court proceeded to answer all the doubts raised by the Petitioners, and in effect, substituted its judgment for an actual investigation, thereby not following any due process of law! No where the Court looked at the broader picture of how conveniently Mr. Amit Shah got discharged weeks after Judge Loya’s death, and the number of witnesses who have turned hostile in the case. The Court completely failed to appreciate the sensitive nature of the Sohrabuddin trial, and how Judge Loya had expressed tremendous pressure being exerted on him to his family members, and how his security was withdrawn a week before he died. It is incomprehensible that a case of this nature would be not be looked in all its wide ramifications, including the basic question of who gained from Judge Loya’s ‘sudden death’.
The Supreme Court spent paragraphs castigating the Petitioners for questioning the statements of the four judicial officers, including the High Court judges, and casting aspersions on them, thereby attempting to scandalise the judiciary and obstructing justice. The Court noted that “the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions”, and that the Petitioners’ conduct prima facie constituted criminal contempt, but the Court chose not to initiate any contempt proceedings. This is a classic case of shooting the messenger, and in fact, parties may now fear asking uncomfortable questions in politically sensitive matters.
Undoubtedly, this was one of the biggest cases in the history of the Indian judiciary, wherein the entire edifice of the independence of judiciary was at stake. In no other case, a judge was alleged to be killed, owing to the controversial case he was hearing. If these allegations were found to be true, it raises the chilling prospect of a judicial officer being killed because of merely doing his job. But, alas, the highest constitutional court failed to live up to the minimum standards of judicial adjudication, let alone the highest standards of judicial decision-making. This not only constitutes complete abdication of the judicial duty, but also casts a huge shadow on the independence of judiciary, wherein the Executive is trying with all its might to damage the counter-majoritarian role of the Supreme Court.
At the end of the day, this was a case where the judiciary’s own member was allegedly killed in the line of duty, but the highest constitutional court of the world’s largest democracy could not even order an investigation into his death, let alone ensure a fair investigation. The people of India will never know the truth behind Judge Loya’s death. There is no shame greater than this. [Tehseen Poonawalla v Union of India, Writ Petition (Civil) No. 19 of 2018, date of judgment: 19.04.2018] (IPA Service)