New Delhi: The ongoing Supreme Court hearings on the death of Judge B.H. Loya’s in the early hours of December 1, 2014, took an interesting turn on Monday, with Dushyant Dave, counsel for the Bombay Lawyers Association invoking facts, logic and the public interest to pick apart the Maharashtra government’s attribution of “political motives” to the petitioners.

The Maharashtra government’s senior counsel, Mukul Rohatgi, repeatedly questioned the timing of the Caravan story which triggered the filing of the writ petitions, attributing it to the dismissal in the Supreme Court of Harsh Mander’s petition against the discharge of Amit Shah in the Sohrabuddin murder case.

Dave, in his response, asked whether the state government was fair in attributing political motives to the BLA, a professional body, when the issue of Loya’s death, and the need for an independent probe, was raised by none other than the four senior judges, occupying the court rooms 2, 3 and 5 adjacent to court No.1, where the hearing was taking place.

Dave’s reference to the January 12 press conference addressed by the four judges – where Justice Ranjan Gogoi admitted that the listing of the Loya matter before a junior judge that day was the precipitating factor for their public display of anguish – caught everyone in the court room including the judges on the bench by surprise, but they were careful not to show it.

Dave asked the bench – comprising Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar, and Justice D.Y. Chandrachud – to take note of the fact that the Bar Council of India had issued him a notice for arguing in this matter, though he did not want the bench to intervene on his behalf. “We are fighting with our hands tied behind our back. Why are you reluctant to issue notice to the state to file an affidavit?”, he asked the bench.

Saying that he has never seen a case where the state is allowed to respond without filing affidavits, Dave referred to the two portraits of former judges in Court No.1, which Justice Chandrachud had invoked to calm down quarrelling lawyers in the case in a previous hearing, and said they were watching the proceedings. “If a senior judge died in suspicious circumstances, it is our duty to find out the truth”, he told the bench, and added: “There is nothing personal or political here”.

When Dave pointed out that under the Supreme Court’s procedure, pleadings must be completed and documents must be submitted on oath, and can ‘t be given at the bar just like that, Justice Chandrachud intervened to observe: “Please rest assured. We will direct an inquiry, if convinced. We are not concerned with what happens outside the court. We are hearing this with the highest amount of seriousness. Nobody can stop any member of the bar from appearing.”

To this, Dave said that he was concerned with procedural law. “Pleadings have to be present. Otherwise, how do I controvert the other side?”, he asked, adding: “The issue is this. If you are going to rely on the statements of the four judges [whose version of the circumstances surrounding Loya’s death the Maharashtra government presented before the court], let them come on affidavits. Just because they are holding high legal position, procedure can’t be different for them. That is not how we know the law”.

Dave explained that justice does not appear to be done in the absence of affidavits. “Casual reports, produced by the Intelligence Department, do not suggest seriousness of intent. That is why they are hesitating to file affidavits”, he further said.

Dave described the discreet enquiry by the Intelligence department, as the “self-serving enquiry by a police officer” and a “brazen attempt to bury the case under the carpet”.

When Dave regretted the state government’s attempt to cast aspersions on the petitioner’s claim to represent public interest in the matter, the CJI, Dipak Misra observed: “We are not going to question your bona fides”.

Arguments will continue on March 5 at 2 p.m.

Dave’s written rejoinder submissions

In his rejoinder, Dave emphasised that the present proceedings must be heard and decided upon completion of pleadings and after adducing relevant evidence on oath by the respective parties, mainly because the BLA’s writ petition filed before the Bombay high court has been transferred to the Supreme Court, thus depriving the petitioners an extra remedy. Besides, the powers of the high court under Article 226, are wider than those of the Supreme Court under Article 32, by which the present petitions are being heard, he pointed out.

Relying on the Supreme Court’s ruling in City and Industrial Development Corporation v Dosu Aardeshir Bhiwandiwala (2008), Dave said it is the constitutional obligation and duty of the state to place true and relevant facts by filing proper affidavits enabling the court to discharge its constitutional duties.

The court had observed in this case as follows:

“The state in the present case instead of filing its affidavit through higher officers of the government utilised the lower ones to make oral statements and that too through its AGP in the high court. This malady requires immediate remedy. We hope that the government shall conduct itself in a responsible manner and assist the high court by placing the true and relevant facts by filing a proper affidavit and documents that may be available with it . We also hope and trust that the legal advisors of the government will display greater competence and attention in drafting affidavits.”

Dave pointed out that the state government, referred to in this 2008 judgment, was none other than the Maharashtra government.

Defending the BLA’s petition, Dave said it aimed to strengthen not only the rule of law, but the independence of the judiciary itself, and the right to life of a judge under Article 21, which can be seriously undermined if indeed the death of Judge Loya is found upon an independent investigation to have been caused on account of unnatural causes. “The judiciary must be guarded from attacks from outside and the bar and the bench have a duty to afford such protection. The state, being the executive, cannot wish it away by imputing motives to the petitioner association”, Dave wrote in his submission.

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The state has failed in the first instance in not ensuring proper safety to Judge Loya, in not providing proper, immediate and the best treatment to him, (assuming he suffered a heart attack), in providing respectful and best treatment even after his death, and lastly in holding an independent enquiry immediately after his death, to find out the real cause.

‘Probe vitiated at start’

Dave drew attention to contemporaneous circumstances which made Loya’s death suspicious. The Indian Express, on December 2, 2014 reported that he had died of a “heart attack”, and that sources close to him said that “he had sound medical history”.

On December 3, 2014, several members of Parliament belonging to a particular party had staged a protest outside parliament demanding an enquiry into his death. Around December 4, 2014, Rubabuddin, brother of Sohrabuddin, wrote a letter to the CBI expressing his shock about Loya’s death.

“The state cannot be oblivious to the fact that its government is headed by the Bharatiya Janata Party of which Amit Shah is the president, and it was he who was discharged in the murders of three persons by the learned judge who took over immediately after death of Judge Loya. The discharge order was made with great alacrity and has not even been appealed against, a fact which substantiates the suspicions and doubts over Loya’s death”, Dave’s rejoinder reads.

Dave asked how the Commissioner of Intelligence, Maharashtra government, wrote a letter to the chief justice of the Bombay high court, on November 23, 2017, specifically identifying four judicial officers, who had accompanied Loya to hospital on December 1, 2014. How did the commissioner, who was directed to enquire only on the morning of November 23, 2017, find out within minutes the presence of three more judges, besides the one, identified in the Caravan story, he asked. Caravan had identified only Judge Barde, a district judge in the city civil Court, Mumbai, in its story. The other judges identified by the commissioner are Shrikant Kulkarni, member secretary, Maharashtra State Legal Services Authority; S.M. Modak, principal district judge, Pune, and R.R. Rathi, district judge, Baramati. “Clearly, the matter was pre-decided by the commissioner. This itself vitiates the enquiry and its report”, Dave alleged.

Dave further doubted the authenticity of the statements of the four judges. The statement of Kulkarni, Modak and Barde were obtained on November 24, 2017, while that of Rathi was recorded on November 23, 2017 itself. “While the commissioner of intelligence sits at Colaba in Mumbai, Hon’ble Judges Kulkarni and Barde were working in Mumbai while Hon’ble Judge Modak was working in Pune, and Hon’ble Judge Rathi was working at Baramati”, Dave’s rejoinder states.

“With respect, the response of the Hon’ble Judges reflects that the entire judicial machinery of the state was at the beck and call of the commissioner, intelligence, which again raises serious question marks about the nature of the enquiry”, Dave states.

Unexplained speed

The statement of Dr. Prasanth Bhajrang Rathi, was recorded by police inspector (crime) Police Station Sadar, Nagpur, on November 22, 2017, a day before the enquiry was ordered and initiated.

The statements of the family members of Loya, namely, Anuj Loya, (son), Sharmila Loya (wife), Harkishan Loya (father), and Anuradha Biyani (sister) are in the form of letters addressed to Sanjay Barve at Mumbai. Each of these persons is writing from Pune. “It is quite unnatural to obtain letters from all family members, although not residing together, on the same day, i.e. on 27.11.2017, ensure that it reaches the commissioner, intelligence on the same day, and next morning, he prepares the report, and submits it to the state government”.

The judges who accompanied Sharmila Loya and their children from Mumbai to Gategaon were not interviewed to find out the facts, including as to the doubts entertained by the family, the status of the dead body including blood marks on it, etc.

None of the four judges, whose statements were recorded had gone to Gategaon for the funeral. So what was the point of recording their statements and not recording the statements of judges who were present at Gategaon?. The commissioner should have enquired as to who was the judge who “was constantly telling Anuj and others not to speak to anybody”.

Why did the commissioner not take the statement of Mohit Shah, who was chief justice of the Bombay high court at the time, Dave’s submission asks. At the very least, the commissioner should have enquired into whether the pressure and tactics allegedly adopted by Mohit Shah was the cause for “induced heart attack”, an expression used by senior counsel on behalf of the state. If it was so, then it was not a case of natural death, which even otherwise would need an independent enquiry, Dave said.

Dave noted that the commissioner ought to have examined the statements of Loya’s father and sister to Caravan magazine, as they were given freely and voluntarily. Both had made allegations against Justice Mohit Shah. Besides, Anuj Loya, in his letter dated February 18, 2015, expressed his apprehensions that any of the family members could be harmed, and if anything happened to him and his family, chief justice Mohit Shah and others involved in the conspiracy would be responsible. Letters by family members on November 27, 2017, therefore, were not natural in their content, and raised serious doubts about their voluntariness, Dave argued.

In his written rejoinder, Dave also raised serious doubts over the claim that the four judges had accompanied Loya, and were based in Nagpur on the fateful day. “Those in government would normally rush their colleagues to the best hospital available … Loya, who was 48 years of age, had no history of heart attack, and could have been easily saved with immediate and best treatment available, in a big city like Nagpur”.

Dave’s rejoinder also points to other material contradictions in the statements of the four judges vis-à-vis statements of others, and the contemporaneous documents.