Senior lawyers trading barbs, accusations flying of the media being gagged, an irked Chief Justice of India demanding an apology from a lawyer – the hearing on the two petitions seeking an independent investigation into the death of Maharashtra judge Brijgopal Harkishan Loya witnessed high drama in the Supreme Court on Monday.
In the end, the bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud adjourned the matter till February 2, asking the litigants to submit, in sealed covers, all documents related to the case by then. The bench also decided to transfer before itself two other petitions filed in the Bombay High Court, also seeking an independent enquiry into the judge’s death. It further directed that no High Court shall entertain pleas regarding this matter any more.
Loya died in December 2014. At the time, he was hearing the Sohrabuddin Sheikh fake encounter case, in which Bharatiya Janata Party president Amit Shah was among the accused. Shah was acquitted just a few weeks later by the judge who succeeded Loya.
As the arguments began on Monday afternoon, the lawyers for the petitioners said the records provided by the Maharashtra government were not complete, particularly those about the treatment given to Loya after he was hospitalised, supposedly for heart attack, and the post-mortem.
This was countered by the Maharashtra government’s counsel Harish Salve. “The judicial officers who accompanied the judge to the hospital have narrated the entire sequence of events that led to his death,” he said, adding that the officers’ statements were among the records given to the petitioners. “What more is required as proof?”
At this point, senior advocate Dushyant Dave objected to Salve taking the Maharashtra government’s brief. “He had earlier appeared for Amit Shah,” Dave said, adding that the court should not allow such blatant conflict of interest.
Dave was appearing for the Bombay Lawyers’ Association, which has petitioned the Bombay High Court for a commission of enquiry headed by a retired Supreme Court judge to look into Loya’s death. This petition is one of the two – the other was filed by an activist, Suraj Lolage – that the Supreme Court has decided to transfer before itself.
Salve objected to Shah’s name being taken, arguing that implying guilt when the court had not decided on the need for an investigation was unacceptable.
As the two lawyers exchanged barbs, Chandrachud intervened, saying one should not cast aspersions on the other. “We all are holders of our own conscience,” he said. “It is for the advocates to decide whether or not they should appear in any matter.”
Dave also argued that since petitions for an investigation into Loya’s death were already pending before the Bombay High Court, the purpose of filing identical pleas in the Supreme Court was to stop the High Court from hearing the matter. “We should now allow anyone say that this institution [Supreme Court] is being used to protect an individual [Amit Shah],” he added.
The petitions in the Supreme Court were filed by Tehseen Poonawalah, a member of the Congress party, and Banduraj Sambhaji Lone, a journalist.
Meanwhile, Indira Jaising, appearing for a group of civil servants wanting to implead in the matter, said since records about Loya’s death provided by the state were not complete, the petitioners should be given a chance to place before the court any additional documents they might have.
Dave intervened: “The father and sister of Loya have sought an enquiry into his death. His son had requested for a probe. But the then chief justice of the High Court met the son in his chambers and thereafter stated that the son does not want investigation.”
He also cited media reports about the judge’s death, suggesting that enough material was available to warrant an investigation.
To this, Chandrachud said the bench had carefully read reports published by the Caravan, Scroll.in and The Wire. “We do realise this is a serious matter,” he said. “But we cannot rely on news articles alone. We need a list of documents.”
All the lawyers then agreed to submit to the court in sealed covers all the documents they have related to the case.
Misra seeks apology
As this was decided, Salve requested the bench to ensure the documents are shared only between the lawyers representing the various parties to the case. Something this sensitive should not be paraded, he said.
Jaising objected, saying Salve was virtually asking for gagging the media. Dave asked why discussions about this case alone should be restricted when matters involving other politicians are being freely talked about. He disagreed with the court’s observation that this case was different as it involved a judicial officer.
When Jaising repeated that the court was essentially passing a gag order and pointed out that the same bench had batted for freedom of speech in the case involving the film Padmavat, an irked Misra reacted strongly. “I have not uttered a word,” he said. “A suggestion was made and we are discussing it.”
Insisting that the court was not trying to curtail the freedom of the press, he asked Jaising to withdraw her comments. “You please say you are sorry,” he said. Jaising withdrew her comments and apologised.
Chandrachud said the court wants to analyse all records and handle the case in the spirit of objectivity.
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