Economic & Political Weekly
💥Death of a Judge💥
👉The Supreme Court’s ruling in the Judge Loya case bodes ill for India’s judiciary.
On 19 April, the Supreme Court delivered its verdict in the case of Justice B H Loya’s death, which occurred on 1 December 2014. It concluded that the sessions court judge’s death was from natural causes. Considering the allegations and doubts raised from many quarters, including media reports about the sudden death, this verdict raises more questions.
It was on 12 January 2018, the day on which the petition concerning Judge Loya’s case was first mentioned before the chief justice, that four senior-most judges took the unprecedented step of holding a press conference raising issue with the functioning of the chief justice and the allotment of cases by him. To a pointed question on whether the trigger was Judge Loya’s case, Justice Gogoi (one of the four) replied in the affirmative.
In such a situation, to maintain transparency and objectivity, it was desirable that the chief justice did not hear this case. However, it was heard by a bench comprising Chief Justice Dipak Misra, and Justices A M Khanvilkar and D Y Chandrachud. In its judgment, the Supreme Court relies on a “discreet inquiry” conducted by the Intelligence Bureau wherein the statements of the four judges who accompanied Judge Loya to the hospital were recorded. This enquiry had not been asked for by the Supreme Court, but by the chief minister of Maharashtra. The lawyers for the petitioners demanded that a fresh and independent probe be conducted into Judge Loya’s death. However, the approach of the Court towards the petitioners and their advocates was shocking. Instead of welcoming the fact that they were trying to bring to light a possible interference and an attack on the judiciary, they were castigated and virtually found guilty of contempt.
The Judge Loya case begins with the Sohrabuddin Sheikh and Kausar Bi encounter deaths of December 2005. The Supreme Court, on being petitioned by Sheikh’s brother, had directed the Central Bureau of Investigation (CBI) to take over the case. Even after the arrest of Amit Shah (then Gujarat’s home minister who managed to get bail), the apex court directed that the trial be shifted to Mumbai and a sessions court judge be appointed to conduct the trial. More importantly, it ordered that the trial be conducted by the same judge from beginning to end. Obviously, the Supreme Court would have been conscious of the likely political interference in Gujarat. Again, in the encounter death of Tulsiram Prajapati, who was a witness to the Sohrabuddin encounter, the Supreme Court directed the CBI to investigate. The Court ultimately linked both the cases and ordered the Bombay High Court to try it. It is obvious that various judges, from time to time, found the entire issue extremely sensitive and felt that the original investigation was being compromised.
Judge J T Utpat was initially appointed to try the case in Mumbai. However, when Shah applied for exemption from appearing in court for each hearing, the judge was unwilling to grant it beyond a point and directed him to remain present in court. Before this could happen, Judge Utpat was transferred and Judge Loya was brought in by an order of the High Court Committee. The first question that arose, which was not dealt with by the Supreme Court, was that when the Court had ordered the trial to be conducted by the same judge from beginning to end, why was its permission not taken before transferring Judge Utpat?
Once Judge Loya took charge, Shah’s lawyers seemed to be in a tearing hurry to have his discharge application decided. Judge Loya, however, functioned in a neutral manner as is required of an independent judge. It was at this stage that he travelled to Nagpur for the wedding function of a colleague and was found dead. Subsequently, Judge Gosavi was appointed and Shah was discharged within a month. The CBI, which had arraigned Shah as an accused and arrested him, did not even challenge the discharge order. Sheikh’s brother, who did challenge it, withdrew the application in the high court. Amit Shah was free.
Considering the controversy involved—the doubts in various narrations, the context in which the case had arisen, the Supreme Court’s intervention in the Sohrabuddin case in an extremely proactive manner, and the large number of witnesses turning hostile —it was imperative that the Court order an independent probe into the matter. In such a probe, the relatives could have been talked to in confidence, the judges could have been asked to clarify matters, and the post-mortem report could have been verified independently by an expert. Instead, the Court based its verdict on information submitted to it by the Intelligence Bureau, which was asked to carry out the probe by the political party to which Shah belongs. Even if the Supreme Court itself wanted to go into detail, it could have summoned the journalist who had done an investigative report on the death, Judge Loya’s relatives, and the four judges, and could have conducted an independent probe. It could have looked at the call records of various persons, and asked an independent person to visit the guest house and the hospitals to satisfy itself.
The approach of the Supreme Court was found wanting, that too in a matter concerning the independence of the judiciary, which essentially arose from an investigation it was monitoring, and regarding which four of its judges had expressed concerns. No prejudice would have been caused if the Supreme Court was seen to support a sessions court judge by ordering a probe. Perhaps, nothing would have come out of this probe. But, at least, the judiciary would have been able to hold its head high.
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