A 'Probe' Into Some Probes Ordered by the Supreme Court

In some legal matters, much like in the Loya case, there were no conclusive findings of fact and the Supreme Court had to merely take a prima facie view.

The case of the death of Judge Loya judgment has employed its own, unique basis, in arriving at the conclusion that no probe was required into the matter. There were so many factors that were perplexing and grave about the case that have already been considered previously. Briefly, the ones that were most egregious were the fact that there was enough material on record to suggest that the post mortem report was questionable and that there may have been a head injury given that even the Meditrina Hospital bills accounted for neurosurgery, non-invasive lab and diet consultation – matters which have nothing to do with a cardiac arrest but which the court side-steps by saying we are not dealing with a case of medical negligence of the hospital (it was no one’s case that the argument was regarding medical negligence.

The argument was that you do not require neurosurgery in cases of cardiac arrest and if there are bills for such a procedure, they must be investigated. In fact the “medical negligence” argument suggests that the court assumes that the medical bill likely records incorrect fact which could be the subject-matter of a separate medical negligence case but that was not even why these entries were brought before the SC. The Maharashtra government constituted an unusual “discreet inquiry”. Even the sequence of events in the main Sohrabuddin matter that played themselves out – that of Judge Utpal being transferred, Judge Loya being replaced and dying, Judge Gosavi being appointed and the immediate discharge, CBI not appealing – do raise doubts sufficient to seek inquiry.

In the context of the above – serious issues that were presented before the SC – why did the SC still deem it fit to dismiss the petition to the extent of suggesting that it was a motivated petition in the nature of criminal contempt? To apply context and precedent to see if a pattern emerges when examining the threshold the SC has applied to its own previous cases to order an investigation or form an SIT, I looked at a few cases it has decided in the last three years. While I cannot say that a clear standard has emerged, what is common is that the SC has ordered probes in some serious cases where it seemed imminent whilst also ordering investigations in cases that seemed less suitable for such purpose. Even in cases where it has refused to form SITs, it has done so on the basis that the nature of the case does not merit one rather than weighing on extraneous factors such as motive of the petitioners or even relying heavily on any one version of the submissions which remained completely untested at the bar (such as the “say”, not affidavit of four judges who were not even cross examined).  One thing that seemed apparent though, is that the SC has been permissive in ordering investigations where a shadow of doubt emerged and in none of the cases I looked at, has the court drawn factual conclusions (which it is not permitted to do within the confines of its Article 32 jurisdiction).

SIT probes ordered or refused previously by the SC

In the matter of the SIT formed for inquiry into the 1984 anti-Sikh riot cases, out of the 293 cases the SIT was inquiring into, it closed 199 cases after scrutiny. Out of 59 cases which were taken up for further investigation, a further 42 were closed after investigation.

 Ordering a SIT, a supervisory body and then yet another SIT

The papers of the 199 closed cases were ordered to be produced before the SC in a sealed cover. On the basis of a suggestion that a supervisory body should be constituted to scrutinise and re-examine whether the 199 cases closed by the SIT were validly closed or otherwise, the SC ordered the constitution of a two member supervisory committee consisting of two retired SC judges to once again examine the 199 closed cases that had already been scrutinised once by the SIT to determine whether there was a “justification” in closing those cases. The court requested the Supervisory body to file its report within three months and for members of the body to be given financial benefits as permissible as well as the Union’s requisite assistance. In fact, on request the SC also asked the supervisory body to conduct investigation into 42 other closed cases in the anti-Sikh riots case to identify if there was justification for closure by the SIT. The supervisory board found that 186 cases had not been investigated and so the SC thereafter ordered the constitution of yet another new SIT to investigate these cases consisting of a former high court judge, a retired IPS officer and a serving officer of IPS status.

Ordering the NIA to investigate with a retired Judge  overseeing or a SIT

The SC has, in fact, been robust or even overzealous in some cases in ordering probes and investigations. As I have previously pointed out, the SC in the astonishing Hadiya case (where a Special Leave Petition (SLP) was moved against the order of the Kerala high court annulling a marriage in a habeas corpus writ filed by Hadiya’s father) not only deemed it fit to appoint the National Investigation Agency but also to appoint a retired SC judge at the expense of the central government to oversee the investigation. In the piece, I have also pointed out another case where the SC had ordered the setting up of an SIT in relation to a complaint filed on allegations of wife-swapping, criminal intimidation etc. I would argue that both these cases did not contain allegations as serious and factors as compelling as that in the Loya case. In none of these cases has the court (rightly) gone into a detailed examination of facts or formed any conclusions thereto.

Ordering an SIT in a 17-year-old FIR

In Sunita Devi v. Union of India, an Article 32 writ was filed before the SC seeking an investigation/constitution of an SIT to investigate into a 17-year-old murder case where an FIR had been registered in 2001. However, the trial court while acquitting the accused had observed that the investigation carried out in the case was not conducted properly and a writ seeking a CBI investigation was also later withdrawn on the request of the petitioners. The petitioners approached the SC in 2018 stating that they had sought a withdrawal of the CBI investigation since they were receiving constant threats and, as the SC’s order of February 8, 2018 records, the petitioners argue that they have sufficient evidence to show that CBI did not investigate the case deliberately, being hand in glove with the accused persons. There are indications of huge money being bribed to top officers to close the matter.” On this basis, the SC ordered an independent SIT to be constituted to reopen and investigate the FIR of 2001 and for the government of Uttar Pradesh to assist with logistical support and expenses.

Cases where the SC has refused investigation

Even in cases I looked at where the SC has refused a SIT probe, it has done so for reasons such as an already available remedy or that the matter was already being sufficiently investigated, leaving issues of merits open. That is not the conclusion in the Loya case. These, decisions are equally, if not more important to scrutinise than the ones where a probe was allowed.

Take the example of the PIL seeking a probe into the Panama Papers leak. The SC in that matter found that the government had already constituted a Multi-Agency Group and that a SIT existed for other investigations and that therefore held in its order that another SIT was not necessary. The court did not deem it fit to examine and pronounce judgment on the nature of the allegations leveled for which the probe was sought.

Another example could be the recent decision of the SC in a PIL where a SIT was sought to probe allegations of fuel adulteration. The SC whilst dismissing the PIL found that there were existing statutory remedies against such malpractices which could be exercised and crucially observed that it was not making any findings of facts in the matter leaving the issue open on merits.

The Right to know the truth

Perhaps the case that perfectly describes the role of the SC, when ordering a probe on the basis of a PIL into troubling matters is the July, 2016 decision in EEVFAM & Anr. v. Union of India & Anr. – it is, quite simply, as the SC itself puts it – the right to know the truth. In this case, the petitioners sought a probe into the alleged extra judicial killings in Manipur by police and the armed forces. The petitioners had compiled information regarding 1528 extrajudicial killings and for the purposes of the PIL, demonstrated available information in 10 cases where FIRs had not been registered, and the petitioners argued that the victims were innocent individuals with no criminal records. The State’s defence was that measures were required to be taken for security reasons. The SC, on considering the affidavits on record in detail first gave several directions to state agencies, the NHRC etc. for segregating the matters before a detailed inquiry being ordered. The Centre then filed a curative petition against this decision in 2017 which was dismissed. Subsequently the SC appointed an SIT and was careful not to introduce any member of the Manipur police in it given there were allegations against the police itself. In subsequent orders the SC has been monitoring the developments of the SIT investigations (with the involvement of the NHRC and the CFSL) and providing its guidance and assistance at various junctures. This case is a great example of how effective and meaningful a court monitored SIT can be (although it can never be said with any degree of certainty what the ultimate outcome of the investigation might be).

Conclusions from these cases

In each of these cases, it is evident that allegations are leveled against enforcement or investigations agencies, various arms of the State and the SC has then constituted the SIT such that it does not contain members of such agency. Why then is the Loya case different where the petitioners though that there was enough material on record to test the version of the four judges? Surely an SIT could have been constituted to not only test their statements but also to investigate into other disturbing matters in the case. In each of these cases, the SC has appreciated the material on record and left it to the appropriate investigating body to do its job of fact finding to determine whether a trial or any appropriate further steps would be required. As the examples I have given here show, the SC has used wide latitude in ordering investigations, not hesitating in doing so even in cases that are two decades old, not hesitating in constituting a supervisory body to sit in review of a SIT’s investigation, not even hesitating in ordering a new SIT if the old SIT did not seem to have done a thorough job! In these cases, much like in the Loya case, there were no conclusive findings of fact and the SC had to merely take a prima facie view. It is not for the SC to make conclusive, fact determinations while deciding whether a matter ought to be investigated. Even assuming the facts traversed in the PIL are false, it is not for the SC to decide whether they are so, that was not the mandate of the court’s jurisdiction nor was it the issue before the SC. To the extent that the SC has made such findings, it is submitted that such findings would have been made without jurisdiction.

The justification of protecting hallowed institutions is rendered hollow if those very institutions fail to inspire confidence. As the SC itself has taught us in the past, no institution is more important than finding out the truth.

Shalaka Patil is a lawyer practising in Mumbai. She tweets @shalakapatil1.