Was the SC Right to Refuse a Probe Into Judge Loya’s Death?

We assess why the SC decided to dismiss the requests for a probe, and whether there are grounds for review.

Prashant Bhushan claims that it was a “black day for the judiciary”. Is he right?

(Photo: The Quint)

Editor: Mohd. Irshad Alam

Cameraperson: Abhishek Ranjan

After months of speculation, detailed investigations by The Caravan, and explosive hearings in the Supreme Court, a Bench comprising Chief Justice of India Dipak Misra, Justice DY Chandrachud and Justice AM Khanwilkar has dismissed all PILs requesting an independent probe into the death of Judge BH Loya.

Calling the petitions frivolous, the judgment penned by Justice Chandrachud held that the petitions were an “attempt to scandalise the judiciary” and that there is no merit to them.

Instead, the judges held that the “documentary material on the record indicates that the death of Judge Loya was due to natural causes.”

The Case Before the Supreme Court

Judge Loya was hearing the the Sohrabuddin Sheikh fake encounter case back in 2014, in which BJP President Amit Shah was the chief accused (till he was later discharged). Judge Loya was the second judge to hear the case – the original judge presiding over the case, Judge Utpat, was transferred upon the directions of the Bombay High Court.

Judge Loya passed away on 1 December 2014 while attending a wedding in Nagpur, which was attributed to a heart attack.

Based on a year-long investigation, The Caravan published articles on 20 and 21 November 2017 that raised several questions about the judge’s death. This sparked a national conversation regarding the issue, with a few other media houses attempting to follow up, and political parties trading blows.

Eventually, petitions were filed in the Bombay High Court asking for an independent probe into the circumstances of his death. These were then merged with two additional PILs filed in the Supreme Court asking for the same thing, and a number of intervention petitions including by Admiral Ramdas (represented by Indira Jaising) and the Centre for Public Interest Litigation (represented by Prashant Bhushan).

The Discreet Inquiry and the Statements of the Judges

During the hearings, the state of Maharashtra claimed that a discreet inquiry had already been conducted which refuted the claims by The Caravan, and backed up the narrative that Judge Loya died of natural causes.

This included the versions of four district judges and two high court judges. The district judges’ (Judges Kulkarni, Modak, Barde and Rathi) written statements were submitted to the court, in which they said that they had taken Judge Loya to Dande Hospital and then Meditrina Hospital, and that they didn’t note anything suspicious. Their statements also contradicted certain factual elements of The Caravan articles.

This became a huge point of contention during the hearings as the petitioners raised a number of questions about these statements, including how they were prepared within a day of the discreet inquiry being authorised, and some factual inconsistencies.

Further objections were also raised by the petitioners’ lawyers about discrepancies in an alleged ECG report of the judge, the guestbook from the guesthouse where Judge Loya stayed, and the changed stance of the family.

‘Veiled Attempt to Launch an Attack on the Independence of the Judiciary’

The Supreme Court rejected all these arguments, holding instead that there was no reason to disbelieve the statements of the judges, and that as a result, “the court must stand by the statements of the judicial officers.”

The apex court was very critical of the way Dushyant Dave, Indira Jaising and Prashant Bhushan argued for the petitioners, and has held that their arguments showed that the petition was “a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions.”

The judges were “anguished” at insinuations against the judges who gave the statements as it was felt that the line of questioning implied they were co-conspirators. The Bench was not pleased with criticisms of the judges of the Bombay High Court, whether the Administrative Committee which transferred Judge Utpat or the judges who agreed to the quashing of a case involving Maharashtra Chief Minister Devendra Fadnavis.

They also took exception to Bhushan’s suggestion that Justices Chandrachud and Khanwilkar consider recusing themselves because they were from Maharashtra and might have known some of the judges whose conduct was in question.

The Supreme Court therefore considered the petitions to be an attempt to “scandalise” and “malign” the judiciary, and an example of the misuse of the PIL process. On this basis, they were dismissed as being without merit.

Though they found the conduct of the petitioners to be contemptuous on the face of it, the judges decided against initiating any contempt proceedings or other punishment against the lawyers.

Was This the Correct Decision?

It is being reported that some of the petitioners are considering filing a review petition against the judgment. But are there any grounds to ask for this?

First off, the petitions in this case relied on a lot of documentary evidence that came to light because of media reports on the issue, and follow-up stories from The Caravan have brought to light further information which also found its way to the court through the CPIL petition.

The Supreme Court doesn’t really address the relative merits of this evidence, instead noting that the statements of the judicial officers seem sound, and that the narrative in them should be believed. Despite making pretty strong findings, there was no definitive evidence placed on record – even the judges’ statements weren’t in the form of affidavits, and the court turned down a request for these to be provided.

The judgment criticises the way in which the petitioners have questioned the judges, and held that:

“...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.”

They also say that they must lean in favour of the version of the four judges. However, it is difficult to see why their statements are being placed on such a pedestal. The statements were not given by the judges while performing their official roles, but like anyone else would when asked to give a statement to investigators. Since when have statements of judicial officers not made in their official capacity become so sacrosanct that they can’t be questioned?

Regardless of how trustworthy the Supreme Court thought those judges were, the petitions were only asking for an independent probe, not a judgment declaring that Judge Loya had been murdered. Such an investigation is merited unless all the additional evidence provided by the petitioners is entirely worthless – but the court never says that and in fact says it cannot go into the veracity of the evidence.

Another jarring aspect of the decision is that the Supreme Court specifically complains about the “aspersions cast” on the Administrative Committee of the Bombay High Court, when setting out the basis on which it considers the petitioners to have mala fide motives.

However, the reason why the petitioners brought this Committee up was because the Committee had transferred the original judge hearing the Sohrabuddin case, despite a Supreme Court order directing that one judge was to hear the whole case. Transferring the judge was a violation of the Supreme Court’s own orders. So how was it wrong to point to this as contempt of the Supreme Court?

Prashant Bhushan claims that this is a “black day for the judiciary”. Even if one does not go that far, there are certainly grounds to be dissatisfied with the judgment.