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“Counsel after counsel expressed the fear that during the Emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.”
Thus wrote Justice Yeshwant Vishnu Chandrachud on April 28, 1976, concluding his concurrent opinion justifying the detention of thousands across the country by a majoritarian regime.
Just nine days short of the 42nd anniversary of ADM Jabalpur v. Shiva Kant Shukla, a judgment was delivered by the Supreme Court berating the petitioners seeking a probe into the death of a judge who was hearing a case against a politician.
While doing so, the Court has relied on the statements of four judges from the subordinate judiciary, while some may say, choosing to overlook other evidence/material adverted to by the petitioners.
The misuse of PIL jurisdiction to settle political scores is one of the foremost issues highlighted by the Court. The Court considers it a travesty of justice that resources of the legal system are consumed by “an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda”.
But are things as black and white as the judgment makes them out to be?
How did it come to the Supreme Court?
January 4, 2018 – The first PIL seeking a probe into the mysterious circumstances surrounding the death of Judge Loya was filed in the Bombay High Court by Bombay Lawyers Association.
January 11, 2018 – A PIL was filed in the Supreme Court by Journalist Bandhuraj Lone; the same was mentioned on January 11 before Chief Justice of India Dipak Misra for urgent listing. The matter was listed for the very next day before a Bench presided by Justice Arun Mishra.
January 12 – The four senior-most judges of the Supreme Court, in an unprecedented move, held a press conference in which they expressed reservations about listing of cases in the Supreme Court. The judges cited the listing of the Judge Loya PIL as a trigger to hold the press conference.
Meanwhile, the case came up for hearing before Justice Arun Mishra, at which point Senior Advocate Dushyant Dave intervened and told the Court that since a similar petition is already pending before the Bombay High Court, the Supreme Court should refrain from taking up the case. The Bench, however, remarked that the matter raises serious issues, and adjourned it.
Subsequently, Justice Arun Mishra recused from the case and the matter was listed before the Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud. This Bench then decided that it will hear the matter and also transferred the cases pending in other courts across the country on this issue, to itself.
According to its own judgment, this Bench heard the matter for nine days from 2 pm to 4 pm. The Court laments that frivolous PILs take up the time and attention courts must devote to genuine causes, all the while forgetting that it had in fact taken upon itself the burden to actually transfer the cases from other courts, hear it for nine days, and then write a 114-page judgment.
To then blame the petitioners, particularly one Senior counsel who requested that the matter be left to the Bombay High Court, is rather confusing.
Who is Bandhuraj Lone? Why did he approach the Supreme Court?
Bandhuraj Lone, a journalist represented by Senior Advocate Pallav Shishodia, was the petitioner at the behest of whom the matter was mentioned and eventually taken up in the Supreme Court.
It is still not clear as to why the matter required “urgent” listing. Usually, an urgent listing is sought in cases which would become infructuous or where no purpose would be served unless the case is heard and an urgent interim order is passed.
This was not a case that warranted any of the above.
The article in The Caravan magazine published in November 2017 was about a death that happened in 2014. The petition by Bombay Lawyers Association was filed in Bombay High Court on January 4, 2018, and was scheduled to be heard on January 23.
Despite these, a journalist from Maharashtra came to the Supreme Court and sought urgent listing of his case. Upon mentioning on January 11, CJI Misra agreed to list the matter on January 12.
The submissions of Shishodia before the CJI Bench are, in fact, what makes things murkier. The petitioner who so badly wanted an urgent listing of the matter finished his submissions in less than five minutes. The submissions as recorded in the judgment states,
“These stories have led to a tide of insinuations, questions on the integrity of our judicial system and war of recriminations. The present writ proceedings also appear to have found resonance in one eminent press conference as also led to open aspersions cast on the some of the judges of this Hon. Court hearing the matter.
In the circumstances, it is submitted that an independent probe cannot be one-way traffic in which persons making allegations can just “hit and run” without any responsibility to damages caused to the reputation, prestige, and faith in institutions including this Hon’ble Court and judiciary as a whole.”
If these were the submissions that Lone wanted to make, there is neither a foreseeable emergency nor an impression of him being a “petitioner” in the matter.
Senior Advocates Indira Jaising and Dushyant Dave promptly took note of the same.
“If he does not want an inquiry, then why has he come here?”, asked Jaising.
Dave also echoed the same view and criticised Shishodia in strong words.
“The nature of your submissions have exposed you. This petition was filed here so that the matter could be buried. It was mentioned and listed before court 10 for that. Now your submissions have exposed the same.”
Moreover, Shishodia had earlier appeared for Amit Shah in the fake encounter case, prompting Dave to allege a conflict of interest in Shishodia appearing in the Judge Loya matter.
This profile of Lone only adds to the gloom.
Protecting the Judiciary
The Court has also not approved of the fact that the counsel for the petitioners cast aspersions on the statements given by four judges who claimed that they were with Loya at the time of their death.
However, is that the case? And even if it is, does it warrant a castigation by the Court?
The case of the petitioners was built on a multitude of contentions, many of which had to be investigated and then examined by a trial court. The Supreme Court only had to look into whether there was prima facie material to warrant a probe. Instead, by authoring a 114-page judgment, it seems to have undertaken an in-depth study of the death of Judge Loya.
The findings of the Court were based largely on the statements of four judges, which itself were procured through a “discreet inquiry”.
In the instant case, the State of Maharashtra had placed reliance on the statements of the four judges, choosing not to address the other discrepancies, particularly the ones related to medical evidence. In such a scenario, the Court had to weigh the statements of the judges against other evidence to ascertain whether a probe was required or not.
These judges’ statements were not given in their judicial capacity. Thus, it is not conceivable that a request to cross-examine the same is an attack on the judiciary.
“However, here we have been confronted with a spate of scurrilous allegations. Absent any title of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. The judges of the district judiciary are vulnerable to wanton attacks on their independence. This court would be failing in its duty if it were not to stand by them”, the Supreme Court has lamented.
Assuming that the request for a probe is not tenable, can the petitioner be castigated for making such a request?
This is more so because the foremost allegation of the petitioner is that the State and its agencies will not probe the matter in a fair manner.
Contempt of its own orders
On September 27, 2012, the Supreme Court ordered that same judge should conduct the trial in the Sohrabuddin encounter case, in which Amit Shah was the prime accused, from beginning to end. However, on June 25, 2014, Judge JT Utpat, who was hearing the case, was transferred by the Administrative Committee of the Bombay High Court, after which Judge Loya took his place.
There is nothing on record to indicate that this was done by the Administrative Committee after taking permission of the Supreme Court as was mandated by the 2012 direction.
This prompted Dave and Jaising to submit that this would amount to contempt of court by the Administrative Committee. The Court in its order adverts to this submission by the Senior Counsel at two places. At page 87, the Court states that since the transfer has no bearing on the case at hand, it will not express any opinion regarding the same.
“The issue as to whether Judge JT Utpat could have been transferred has no bearing on the circumstances in which Judge Loya died…we are of the view that the transfer of the earlier judge and the appointment of Judge Loya in June 2014 has no bearing on whether Judge Loya’s death on 1 December 2014 was due to natural causes.”
However, at page 109, the Court states that the submission amounts to a “vituperative assault on the judiciary”.
“Aspersions have been cast on the Administrative Committee of the Bombay High Court. This court has been called upon to issue a notice of contempt to the judges on the Committee at the relevant time. Ms Jaising has joined the fray by requesting that this court to issue contempt notices to the Administrative Committee of the Bombay High Court. Junior counsel appearing with Mr Giri went to the extent of urging that the judicial officers whose statements were recorded during the discreet inquiry are suspect. Even the judges of this Bench hearing the present proceedings, have not been spared from this vituperative assault on the judiciary.”
It is not clear as to how pointing out that a decision taken by the High Court on the administrative side is contempt of court and would amount to a vituperative assault on the judiciary. In that case, would not all litigation against various High Courts and the Supreme Court tantamount to an attack on the judiciary?
On Expert Reports
The Court has referred to four expert opinions in this regard.
These are all conflicting opinions and the Court has not gone into the merits of any of them. Instead, it chose to castigate the petitioners’ counsel.
“We are not really considering here whether the opinion of Dr Pathak should be preferred to what was opined by Dr Kaul. The point of the matter is that facts have emerged from the record which indicate that a carefully orchestrated attempt has been made during the course of these hearings on behalf of the Centre for Public Interest Litigation to create evidence to cast a doubt on the circumstances leading to the death of Judge Loya.”
If the Court felt that it was really not interested in going into these details, and was inclined to go with the testimonies of the four judges, the matter was only worthy of a dismissal in limine. Instead, to hear it for nine days and deliver a 114-page verdict was a complete waste of judicial time.
More questions than answers
The 114-page verdict has, in fact, led to more questions than answers. The Sohrabuddin trial will huff and puff to a conclusion, but April 19, 2018 will remain in the annals of history of Supreme Court.
Court Reporter frequents Supreme Court and High Court sans a band and gown. In Delhi for the love of Kebabs, Court Reporter can be spotted haggling with autorickshaw drivers and feuding at pass counters outside courts.