At the Supreme Court, Dushyant Dave traced the sequence of events to argue how the judiciary had been unwillingly drawn into the murky side of the case.
New Delhi: The role of Maharashtra’s commissioner of intelligence in the preparation of a “discreet inquiry” report on judge B.H. Loya’s death on December 1, 2014 in Nagpur, came in for intense scrutiny by the petitioner’s counsel, Dushyant Dave, as the Supreme Court continued its hearings Thursday on petition seeking an independent probe into the matter.
The Supreme Court bench comprises Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud.
Tracing the sequence of events since the publication of the first article in Caravan magazine on November 20 last year on Loya’s death, Dave questioned the “extremely hurried and cavalier” fashion in which the state intelligence commissioner conducted the inquiry without even stepping out of his office.
“Hundreds of articles are published every day. Why did [he] feel the urge to initiate an inquiry following the Caravan report? The aim was apparently to prevent any other investigation, Dave alleged.
If the Caravan report is rubbish, as the Maharashtra government claims now, why did it act with alacrity to bring out this report, he asked. This is a strong circumstance to show the suspicious nature of the report, he underlined.
Although the first article by Caravan did not name three of the four judges who were with Judge Loya between November 29 and December 1, 2014, the commissioner, intelligence, got their names, without even conducting any inquiry, on November 21 itself. Calling his efforts “pre-conceived” and “pre-determined”, Dave asked whether it did not suggest obstruction of justice. The four judges are Shrikant Kulkarni, V.C. Barde, S.M. Modak and R.R. Rathi, but Caravan had identified only Barde.
Describing it as bizarre, and a matter of deep regret, Dave alleged that the judiciary was unwittingly drawn into this. On November 21, the commissioner, intelligence, sought permission to record the statements of these Judges. The Bombay high court gave permission the same day. “Does not the chief justice of the high court have to call a meeting of the full court or the administrative committee before granting permission? It is unusual for a chief justice to straightaway give permission,” Dave told the bench.
Dave was categorical that the commissioner of intelligence would not stand cross-examination if subjected to it. “He did not even step out of his office to conduct the inquiry himself; no searching questions were posed to those whose responses were sought. Everyone was working for one man, as if there was no other work,” Dave said.
He then focussed on the inconsistency which was apparent in the responses of the four judges. Singling out Justice Rathi’s submission that the ECG machine at Dande Hospital, Nagpur, was not working that fateful day, whereas the other judges claimed that an ECG was performed on Loya at Dande Hospital that day, Dave argued that one cannot accept one statement and reject the other.
“The judiciary was really working overtime, like school children,” he said, and asked the bench whether it was right on its part to suggest that one has to believe the judges whose statements were recorded for the purpose of the inquiry report. “Judges are not at the beck and call of the commissioner, intelligence,” Dave said, pointing out that he did not even meet these four judges and personally record their statements. Had he met them to record what they said, they might have come forward with more details; but the purpose was to “create documents”, and therefore, they were asked to give statements, Dave claimed.
Debate on affidavits
Dave, relying on case law, drew the attention of the bench to a few precedents in which the Supreme Court had struck down government actions in the absence of an affidavit. “We have no opportunity to ask these judges. Their statements cannot go unchallenged, or uncontroverted,” Dave emphasised.
When Justice Chandrachud suggested that the filing of affidavits cannot improve the value of the documents submitted by the state government, and that it has to stand by the documents, even in the absence of affidavits, Dave remarked: “It puts us on a backfoot”.
When Justice Chandrachud insisted that the bench can determine the adequacy or inadequacy of inquiry on the basis of the documents filed before it (in the absence of affidavits), Dave asked how he would rebut what the state government is claiming.
“Counsel bears responsibility for the authenticity of documents,” Justice Chandrachud continued.
Dave, at this point, regretted that Justice Chandrachud was always trying to pick holes in his argument, whereas he was largely silent when the state’s counsel, Mukul Rohatgi was making submissions. To this, Justice Chandrachud explained that his drawing attention to the alternative view must not be misunderstood, and that pursuit of justice was the goal of the bench, as well. Dave agreed that there are two ways of looking at everything.
Earlier, Dave deplored the adversarial and even hostile approach of the state government in this matter. The state government, he contended, cannot say that the petitioners should get away because their argument is bogus, and employ counsel, who represented those who benefitted from Loya’s death. “Why is the state not seeking the assistance of the attorney general in this matter?” he asked.
This irked the state’s counsel, Mukul Rohatgi, who said that as advocates, he and Dave had appeared for different parties. To this, Dave responded saying there was no conflict of interest in his case. Rohatgi, calling Dave’s contention absurd, advised him to talk about the case, and not the counsel.
Rohatgi again intervened when Dave asked why the then chief justice of the Bombay high court, Mohit Shah, who was in Nagpur on the fateful day, was not woken up when Loya was being taken to the hospital. Rohatgi alleged that the petitioners’ only aim is to attack one man under the garb of the judge who died three years ago, and engage in yellow journalism soon after the Supreme Court dismissed the appeal against the discharge of Amit Shah in the Sohrabuddin case.
In fact, the Supreme Court ruling Rohatgi referred to came in August 2016, more than a year before the ˆ article.
‘Suspicion’ meaning explained
Dave, drawing reference to CJI Dipak Misra’s observation during the previous hearing that even if the bench had the “slightest suspicion”, it would not hesitate to order an inquiry into Judge Loya’s death, explained the many definitions of the word “suspicion”. He claimed that dictionaries define the word as a feeling that somebody has done something wrong, illegal or dishonest, even though there is possibly no evidence. What he had argued, Dave said, clearly arouses “serious suspicion”. A questionable character or distrustful action, also invites suspicion, he said citing Oxford Dictionary’s definition of the word.
The court, Dave claimed, cannot ignore the totality of circumstances, as revealed by the Sohrabuddin case, in which three people have been killed in fake encounters (Sohrabuddin, his wife, Kauser Bi, and witness, Tulsiram Prajapati).
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Secondly, the Supreme Court’s 2012 dictum that the judge conducting the Sohrabuddin trial would have to remain with the trial from beginning to end, was violated by the high court with impunity, when judge J.T. Utpat was replaced by Loya in 2014. When Loya required the presence of the accused – especially BJP president Amit Shah – and adjourned the case to December 15, 2014, he died on December 1, 2014. Loya’s successor then discharged the accused subsequently before the end of that month. More so, the CBI didn’t care to appeal against the discharge of Amit Shah.
Dave, who also made a six-page written submission, urged the Supreme Court to direct the CBI to file appeal suo motu. “Be you ever so high, the law is above you” is the maxim that should guide the Supreme Court in this case, he said.
Dave also wanted the bench to consider that all the family members had given identical letters on November 22, 2017, to the commissioner, intelligence, saying they did not suspect any foul play in Loya’s death. He, therefore, urged the bench to reject the official report on his death, as it is not beyond reasonable doubt, and order an investigation by a former Supreme Court judge, and monitor it. “We have not seen a situation like this since independence,” Dave said, concluding his response submissions.
Prashant Bhushan’s submissions
Prashant Bhushan, arguing on behalf of the Centre for Public Interest Litigation, an intervener in this case, referred to a Caravan story published on February 11 carrying the opinion of Dr. R.K. Sharma, former head of the forensic medicine and doxicology Department at the All India Institute of Medical Sciences in Delhi. Sharma was also the president of the Indian Association of Medico-Legal Experts for 22 years.
After examining Loya’s post-mortem report, and the related histopathology report, Dr Sharma had ruled out death due to a heart attack; rather, according to him, the documents showed signs of trauma to the brain and even possible poisoning.
Bhushan claimed that he downloaded the ECG report on Judge Loya, as published in the Indian Express, and mailed it to Dr. Upendra Kaul, India’s reputed cardiologist, and a former professor of cardiology at AIIMS, seeking his views on it. Kaul is the chairman and dean, academics and research at Batra Heart Centre & Batra Hospital and Medical Research Centre. He has been awarded the Padmashri and the Dr. B.C. Roy Award.
According to Dr Kaul and other reputed cardiologists, whom Prashant Bhushan consulted, the ECG report on Loya is normal, and does not show any signs of any serious recent heart attack. They had opined that had he died due to a heart attack, some part of the heart muscle would have died, and that would have shown in the analysis of the heart tissue in the histopathology examination.
The withholding of the ECG report and the histopathology report from the set of documents handed over by the Maharashtra government to the court (without any affidavit), therefore, assumes significance, Prashant Bhushan claimed. “The government appears to have withheld these documents since they were aware that they would demolish the claims of the government that Loya died of a heart attack,” he mentioned in his intervention application.
Prashant Bhushan will continue his submissions at 2 pm on Friday.