By Satyaki Chakraborty
The Maharashtra Government headed by Uddhav Thackeray has started well with a human rights face by agreeing to consider the withdrawal of cases against the activists who were implicated in the famous Bhima Koregaon case by the state police under the earlier regime of Devendra Fadnavis. For the last eighteen months, these renowned activists and lawyers are in jail on bizarre charges of being urban naxals.
All indications suggest that the new Alliance Government will soon take a favourable decision to withdraw the cases against the activists and to release them to restore justice which was denied to them by the earlier regime. The NCP and the Congress, the partners of the alliance have already demanded the release and the Chief Minister has already shown his inclination. Once the final decision is implemented, that will give a big boost to the image of the new Maharashtra government, especially the Chief Minister. The human rights movement, throughout the country will get a moral boost. The movement in other states also in favour of dalits and the oppressed will get momentum.
Following this Bhima Koregaon, next on the agenda should be a fresh investigation into the mysterious death of Judge Loya who was hearing the controversial Sohrabuddin case in his court in Maharashtra. Already Sharad Pawar has mentioned that the new Govt might take up the issue of reinvestigation since there is a demand. The Mumbai based lawyers as also the lawyers of the country are concerned at the incident which took five years ago. Though the Supreme Court rejected the review petition in July 2018, the senior lawyers feel that the then Maharashtra Government put pressure and distorted reports were placed to influence the decision. This should be properly investigated to find out whether there is any truth in such allegations.
The fact of the matter is on April 19, 2018, the Supreme Court of India dismissed the series of petitions seeking 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 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.
Later in July 2018, the apex court had dismissed a review petition seeking an investigation into Loya’s death. The court was hearing a plea filed by the Bombay Lawyers Association seeking a review of the top court’s April 19 judgement dismissing pleas for an independent inquiry into Judge Loya’s death.
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.
Undoubtedly, this was one of the biggest cases in the history of the Indian judiciary. If these allegations were found to be true, it raises the chilling prospect of a judicial officer dying because of merely doing his job. The highest constitutional court failed to live up to the standards of judicial adjudication. This not only constitutes complete abdication of the judicial duty, but also casts a huge shadow on the independence of judiciary. (IPA Service)