The Last Pillar of Indian Democracy Weakens Itself

If the Supreme Court wanted to retain the ordinary peoples’ trust in the judiciary, it had a duty to do everything possible to clear the air on the Justice Loya case. It did the exact opposite.

A careful reading of the Supreme Court’s judgment dismissing the demand for an independent probe into the death of judge B.H. Loya – who was presiding over the Sohrabuddin fake encounter case at the time – reveals little that one can take exception to. But that is only because the court restricted its inquiry to whether sufficient grounds existed for suspecting that Loya might not have died of natural causes.

What the Supreme Court ruled out from consideration at the very first hearing was any discussion of whether Loya, who could easily have had a previously undiagnosed heart condition, might have been driven to his death by the pressures that he came under, and about which he spoke on more than one occasion to his family and friends.

Its caution would have been justified if it had been required to make a finding on the cause of Loya’s death. But all it had been asked to do was authorise an independent investigation into the circumstances of his death. It is a matter of record that within four weeks of the November 30, 2014 death, BJP president Amit Shah ended up getting discharged from the Sohrabuddin case. The two articles in Caravan magazine that the Supreme Court referred to had awoken fears that had lain dormant for three years.

These fears needed to be put to rest. That is why some concerned citizens had turned first to the Bombay high court and then to the Supreme Court for reassurance. If the apex court wanted to retain the peoples’ trust in the judiciary, it had a duty to do everything possible to clear the air. It did the exact opposite. To appreciate the full extent of its dereliction from this larger duty to the people, one needs to revisit the circumstances in which judge Loya died.

Loya died only 14 days before a deadline he had set for commencing hearings on the extra-judicial killing of two criminals, Sohrabuddin Sheikh and Tulsiram Prajapati, and of the wife of the former, Kausar Bi, by a handpicked group of police officers and constables of the Gujarat police, in two fake encounters in 2005 and 2006.

in 2007, K.T.S Tulsi, then counsel for the state of Gujarat, had deposed before the Gujarat high court that these were fake encounters carried out by the police. The fact is that the police worked directly under then state home minister Amit Shah. Shah was later indicted in both of these because a detailed CBI investigation, carried out by a superintendent of police of the Maharashtra crime branch, Sandeep Tamgadge, had determined that the accused policemen had acted under his direction.

In the seven years that had preceded the Bharatiya Janata Party’s victory in 2014, Shah had been taken into judicial custody twice, the second time for several months and, when bailed out the second time, had been barred from entering Gujarat for two years to prevent him from tampering with evidence that the CBI claimed to have gathered.

The trial Loya was to have presided over had been shifted by the Supreme Court from Gujarat to Maharashtra in September 2012 , at the request of the CBI, because witnesses were being systematically intimidated in Gujarat. Citing an earlier case from Punjab, Ravinder Pal Singh vs. Sandeep Kumar Jaiswal, where those accused of faking an encounter were policemen, the Supreme Court had held that “The case in hand (CBI vs D.G.Vanzara) has far stronger reasons for being transferred out of the state,” and directed that it should be transferred to Maharashtra. It had further directed the administrative committee of the Bombay high court “to assign the case in a court where the trial could be held judiciously, in accordance with the law and without delay. It also directed the administrative committee to ensure that the trial should be conducted from beginning to end by the same officer”.

The administrative committee selected J.T. Utpat to be the special judge for the case. Between September 27, 2012 and June 20, 2014, Utpat set one date after another for Shah to appear before the court, but Shah repeatedly ignored the summons, till Utpat ran out of patience. When Shah’s lawyers sought his exemption from appearance for the second time within a month, on June 20, 2014, having obtained it once already on June 6, Utpat said, “Every time you are giving an exemption application without assigning any reason,” and fixed July 4 for the next hearing. But just five days later, and 10 days before the next hearing, with total disregard for the directive that had been given by the Supreme Court, Utpat was transferred to Pune and Loya appointed in his place. When the CBI court reconvened after a five-week summer break, Loya fixed a date for the hearing on October 31. When Shah again did not turn up, despite actually being in Mumbai for a political function on the appointed date, Loya too scolded him and fixed the next hearing for December 15. Loya died of a heart attack in Nagpur 16 days before that deadline.

This was only the first of a series of inexplicable events. The Bombay high court administrative committee hastily replaced him with judge M.B Gosavi. On December 30, just 15 days after the deadline that Loya had set, he dismissed all charges against Shah. He did this in spite of the fact that the CBI had furnished call records from Shah’s phone to the court which showed that Shah had talked to the indicted police officers, notably D.G Vanzara, Rajkumar Pandian and N.K Amin, 14 times in the three days between Sohrabuddin Sheikh’s capture and ‘execution’ in November 2005 and, 37 times during December 2006, when Prajapati was killed in a similar ‘encounter’.

Fourteen of these calls had been placed between December 10 and 12, after Prajapati had been brought from Rajasthan to the Sabarmati jail in Ahmedabad, before being ‘escorted’ to Banaskantha, and between December 26 and 30, two days before and after Prajapati met his end. None of this cut any ice with Gosavi, who accepted the defence’s plea that phone calls were Shah’s normal way of communicating with his subordinates. Shah walked out of his court a free man without standing trial or being cross-examined.

Scores of concerned citizens had turned first to the Bombay high court and then to the Supreme Court for reassurance. Credit: Adam Jones/Flickr CC 2.0

This sequence of events raises several questions: First, why did the Bombay high court’s administrative committee (AC) not protest against the transfer of Utpat to Pune? Utpat claimed later that he had asked for the transfer for personal reasons connected with his daughter’s education. But why did the AC, which was bound by a Supreme Court directive to ensure that only one judge hear the entire case, not attempt to dissuade Utpat?

Second, what could conceivably have been so important about his daughter’s education that Utpat had no option but to leave Mumbai, and that too not temporarily but permanently? Even if he had pressing personal reasons that he did not wish to disclose, why did he have to make this permanent move just 10 days before the date he had himself fixed for the next hearing ? Could his wife not have gone with their daughter to Pune? Did he have no relatives there? For that matter, could he not have postponed the date for the next hearing by a few weeks? After all, Shah would have been the last person to object. Finally, why did Utpat have to go to Pune in June, when school and college summer vacations had not ended and the new semester had not begun?

Gosavi’s summary dismissal of the case raised two further questions: if Shah’s innocence was so easy to establish, why had he evaded hearing after hearing for two years and four months? And if he had been so determined to avoid a hearing before, why did he agree to appear before Gosavi?

Clearly, there was the stench of rotting flesh in the air. The Supreme Court was the only institution in the country with sufficient credibility to clear it. Justice Mishra’s bench chose not to do so.

Instead, it launched an unprecedented diatribe not only against the petitioners , accusing them of ‘lacking in bona fides, and… misusing the judicial process”, and committing contempt of court for which only the magnanimity of the judges has saved them from punishment. As if that was not enough, it virtually closed the door on public interest litigation by saying that it would only hear “genuine cases, moved by persons acting in the public interest alone who stood to gain nothing personally from the litigation.”

Those whom it excoriated and threatened included a former chief of the Indian navy, now in his eighties; a highly respected human rights lawyer ranked recently by Fortune magazine as 20th among the 50 greatest leaders of the world, a group of lawyers from the Bombay high court, and a renowned civil rights activist, none of whom stood to gain anything personal from an independent investigation into the death of Loya. If these people could not meet the criterion of ‘no personal interest in the outcome apart from general standing as a citizen before the court’ then who could?

In the three years since Shah walked free, India has become a stranger to law. All the eight senior police officers accused with him in a succession of fake encounters, all the accused in the Mecca Masjid bombing; in the Samjhauta Express bombing, in the Jaipur and Malegaon bomb blasts and a score of other such outrages, have walked free.

Former Gujarat minister Maya Kodnani, earlier given a 28-year sentence after being identified and traced  through phone records as having been present at the Naroda Patiya massacre in Ahmedabad in 2002, has been acquitted on appeal by the Gujarat high court along with 17 others only weeks ago.

Today the grandiloquence of the Supreme Court will not restore faith in the law and the courts of this land. Between the law’s mounting delays, the brutal and extortionate behaviour of the police, the rampant corruption in the lower judiciary, and the quirkiness of judgments of the higher courts, a conviction has settled in among ordinary people that they will receive no justice and no protection from the appointed guardians of the law.