State government counsel Mukul Rohatgi questioned the petitioners’ locus standi in raising the issue, and argued that “you can’t make castles in the air”.
New Delhi: As senior counsel for the State of Maharashtra, Mukul Rohatgi appeared to have had his task cut out before the Supreme Court bench headed by Chief Justice Dipak Misra, which resumed its hearing on Judge B.H. Loya’s death on 12 February.
With the counsel for the petitioner and the interveners on the questionable circumstances surrounding Loya’s death on December 1, 2014 in Nagpur having had their turn, it was expected that Rohatgi, whose opposition to the plea for an independent probe into Loya’s death was already known, would seek to demolish their claims one by one.
However, Rohatgi, who was attorney general for the Narendra Modi government till he resigned last year, surprised everyone by spending the first half of Monday’s hearing on the petitioners and the interveners “lack” of locus standi to seek an inquiry into Loya’s death.
“Whose public interest” is involved here, he repeatedly asked, questioning the credentials of the petitioners. He alleged that the petitioners and the interveners had a private oblique motive in this case – to scandalise the judiciary by raising the issue after three years. “If they were genuinely concerned because Judge Loya was conducting a sensitive trial, then somebody would have done something?” he asked.
Normally the court, he said, does not entertain petitions merely based on newspaper articles and hearsay evidence. Primary evidence must be brought, he said. “All these petitions are based on the Caravan magazine’s article. None of them, on their own, took any effort to approach the government. Instead, they have followed a cut-and-paste approach.”
Rohatgi, however, agreed that the petitions need not be dismissed at the threshold on this ground, perhaps realising that it was too late in the day to raise the question of maintainability of these petitions.
“There is nothing amiss. The state is satisfied with the discreet inquiry that it ordered. Don’t keep it hanging by further enquiry,” he told the bench.
The Maharashtra Intelligence Department, during its discreet inquiry, had recorded the statements of four judges, after getting due permission from the chief justice of the Bombay high court. The judges were Shridhar Kulkarni, Shriram Madhusudan Modak, deputy registrar of Nagpur bench of the high court, Rupesh R. Rathi, and a local judge, Vijaykumar Barde. On Monday, Rohatgi referred to the statements of these four judges.
The only way to order an inquiry, is to reject the statements of the judges, who were with Judge Loya, till the ambulance carrying his dead body left Nagpur for Gategaon, his native place, Rohatgi said. “These judges who were with him like his shadow from November 29 have issued statements pointing out that his death was natural. Their statements have to be totally rejected, and they must be treated as conspirators in the crime (if the court were to order an inquiry)”, Rohatgi contended.
During Monday’s hearing, the three judges on the bench – CJI Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud – took an unusual break for ten minutes about 25 minutes after the hearing began. They left the court, and resumed the hearing again, surprising those present in the court room.
Despite agreeing that the petitions could not be dismissed at the threshold stage, Rohatgi went on to describe the petitioners as absolutely cavalier and reckless in their allegations.
Justifying the post-mortem done on Loya, even though it was a natural death, Rohatgi explained that had he died in the hospital, it would have been easy to give a death certificate. “If someone died on arrival, the hospital cannot give a death certificate. A post-mortem has to be necessarily undertaken for this purpose. No consent is required of the family by the hospital for the post-mortem”, Rohatgi argued.
Accusing the petitioners of not doing their homework before filing their petitions, Rohatgi claimed that they relied on hearsay evidence presented by the media, and then moved the Supreme Court; their counsel argued on the basis of the material that the state government supplied, he added.
Rohatgi alleged that the petitioners’ counsel argued the case like an appeal (from a lower court), and they did not bother to read pleadings. “It is for ulterior purposes, that it is going on,” he said.
When Rohatgi claimed that the pending petition, transferred from the Bombay high court to the Supreme Court, and filed by the Bombay Lawyers Association, had no explanation on why nothing happened during the past three years on the issue, the BLA’s senior counsel, Dushyant Dave, retorted: “It is the Supreme Court which brought it here.”
Rohatgi said that if the BLA was aware of the suspicious circumstances – including the transfer of Loya’s predecessor, J.T. Utpat, who was conducting the Sohrabuddin Sheikh trial, in which BJP president Amit Shah was an accused – someone would have had the material to approach the court earlier. But only after Caravan published the story did the BLA become active. “Who is standing behind the petitioner?” he asked.
When Justice Khanwilkar queried Dave on this point, he said in a Public Interest Litigation, technicalities are not relevant.
Rohatgi argued that the statements of the judges on Judge Loya’s death constitute unimpeachable evidence. All the statements are signed by the judges, there is no transcribing, Rohatgi averred. Their statements, Rohatgi claimed, have contemporaneous value, as the judges were with Loya all the time, before his death.
Reading a statement of one of the judges, Rohatgi referred to the doubts expressed by the petitioners’ counsel over the judges’ claim that three of them, including Loya, slept in one room at the VIP Guest House, Ravi Bhavan, in Nagpur, between November 30 and December 1, 2014, and said:
“There could be any number of explanations for this. Loya woke up. He woke up others. Who called whom is irrelevant. They stated from their memory of three years. There is no reason to create suspicion and doubt about their statements. There could be minor variations. That is irrelevant. There is no reason to disbelieve the sequence of events. There is no shred of doubt.”
Arguing that “you can’t make castles in the air”, Rohatgi claimed he was trying to convince the conscience of the apex court, and that there is no semblance of doubt that Loya died in the car itself (while moving from Dande hospital to Meditrina hospital, Nagpur, where Loya was declared dead on arrival).
Rohatgi argued that natural discrepancies in the statements of witnesses underline the essential truth of a story. “If every statement of the witnesses says the same same thing, it is a ground for suspicion,” he suggested.
“The judges went to the paan shop, had Nagpur’s unique paan. Loya answered nature’s call. He had the presence of mind to call a local judge before collapsing”, Rohatgi said, while narrating the sequence of events preceding Loya’s death.
Answering the question as to why and how an ECG was done on Loya at Dande hospital, where it was claimed he was first taken after he complained of chest pain, Rohatgi said: “These are natural contradictions. Judges are laymen insofar as medicine is concerned.”
Arguments will continue on Friday at 2 pm.