The Supreme Court on Thursday refused to order an independent investigation into the death of Maharashtra judge Brijgopal Harkishan Loya, concluding that he had died of a heart attack. A three-judge bench led by Chief Justice Dipak Misra reposed absolute faith in the statements of four judges who apparently took Loya to hospital after he complained of chest pain in the early morning of December 1, 2014. Loya was declared dead a few hours later.
At the time, Loya was hearing the Sohrabuddin Sheikh fake encounter case in which Bharatiya Janata Party president Amit Shah was an accused. Shah was acquitted a few weeks later by the judge who took over from Loya.
In a 114-page judgement authored by Justice DY Chandrachud, the bench, which also included Justice AM Khanwilkar, slammed the petitioners for coming to the court with ulterior motives, which amounted to tarnishing the image of the judiciary. Political and business rivalries, the court said, should be settled in markets and the electoral field. The petitions were a case of the misuse of public interest litigation, which undermines the judicial process by wasting the time of the court, the judgement said.
The court maintained that in the absence of substantial contradictory evidence, the statements of the four judges cannot be questioned.
Many questions remain unanswered, however, not least because the court failed to address some specific allegations raised by the petitioners on the basis material evidence.
The strongest thread running through the judgement is the faith reposed in the statements of the four judges – SM Modak, VC Barde, Shrikant Kulkarni and Roopesh Rathi. The court said contemporaneous material evidence backs the judges’ statements. Although there are minor contradictions, they by and large agree about the sequence of events that took place after Loya complained of chest pain. Loya was first taken to Dande hospital and then to Meditrina, where he was declared brought dead.
The judges’ statements, Chandrachud wrote, “have a ring of truth” to them. “The statements contain matters of detail which would be known to those who were present with Judge Loya,” the judgement noted.
One of the key questions raised by the petitioners was how the four judges had provided their statements so swiftly during a discreet investigation launched by the Maharashtra government after Caravan magazine published two articles raising doubts about the circumstances of Loya’s death on November 20 and 21. The entire investigation was completed in five days. This included seeking permission from the Chief Justice of the Bombay High Court to record the statements of the judges, taking the statements and collating them in the form of a report.
To this, the Supreme Court said the alacrity reflected the sense of duty of the four judges.
“The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty.”
Another key contention of the petitioners was that two judges of the Bombay High Court – Justices Gavai and Shukre – spoke about the circumstances of Loya’s death to The Indian Express on November 27. Their version matched that of the four judicial officers, raising suspicion of the entire exercise being staged. The petitioners even sought disciplinary action against the two High Court judges.
The Supreme Court dismissed the submission as “preposterous”. The interviews of the High Court judges were published by The Indian Express on November 27, the court said, whereas the statements of the four judges had been taken on November 23 and 24. “We are mentioning this aspect because the line of submissions in this case indicates an unfortunate attempt to use every possible ploy to cast aspersions on members of the district and higher judiciary,” it said.
It is not clear, though, whether the court considered the possibility that the High Court judges and the judicial officers may have spoken between November 20 and November 23, the period between Caravan publishing the first of its two reports and the judicial officers providing their statements.
The petitioners, including Congress member Tehseen Poonawallah, had questioned why Loya was first taken to the smaller Dande hospital when better facilities were available within five kilometers of Ravi Bhavan, the guest house where Loya was staying in Nagpur.
To this, the apex court said it was easy for an observer sitting in an armchair at a distant point in time to assert that wisdom lay in an alternative course of action. “They did their best under the circumstances, acting entirely in good faith,” it said, referring to the judges who took Loya to the hospital.
Saying the four judicial officers were sought to be painted as co-conspirators, the court stated, “We must emphatically reject such attempts on the part of the petitioners and the intervenors to malign judicial officers of the district judiciary.”
Question of ECG
One of the main points of contention was whether an ECG was done on Loya at Dande hospital. Of the four judicial officers who were with Loya at the hospital, Rathi had said the ECG machine was broken while Barde had said an ECG was indeed done. As part of its November 27 report, The Indian Express had published a copy of the ECG, but it carried the date as November 30 and not December 1, which is when Loya was taken to the hospital.
The judgement acknowledged the contradiction in the statements of the judges but reasoned that Rathi’s claim should be weighed with the doctor’s notes at Meditrina. It stated:
“The death summary specifically adverts to the fact that the patient was taken to Dande hospital earlier where an ECG was done. Dr Dande has made the same statement. The progress notes also note a ‘tall T’ in the anterior lead which indicates that the ECG was seen by the doctors attending to Judge Loya at Meditrina hospital. These progress notes are contemporaneous, since they also form part of the communication addressed by Dr NB Gawande at Meditrina to the PSI at Sitabardi on the same day after the judge had been brought dead to the hospital.”
In fact, the court pointed out, Prashant Bhushan, one of the intervenors, has relied on this ECG for his submissions.
But it should be noted, as reported before, Dr NB Gawande of Meditrina, who signed the medico-legal report, had told Caravan that he did not see the report of the ECG done at Dande till it was brought over the next day. However, the doctor’s progress notes, also prepared on December 1, clearly mentions the Dande hospital’s ECG. Did Gawande sign the medico-legal report without going through the doctor’s progress report?
Though the court dismissed the doubts about the ECG by pointing to its mention in the doctor’s notes at Meditrina, this does not nullify the petitioners’ suspicion about the very authenticity of the ECG report, which is what an independent investigation would have looked into.
In effect, the court overlooked the statement of one judge but relied on the statement of another as well as other documentary evidence that too was disputed by the petitioners. For example, the bill for Loya’s treatment at Meditrina listed charges for dietary consultation and neurosurgery. The court dealt with this aspect in passing, although it was a substantial question.
“The charge for dietary consultation is erroneous,” the judgement said. “But that cannot be a ground to discredit the fact that Judge Loya was taken to Meditrina. That he was taken to Meditrina is clear from the documentary material on the record and the consistent statements of all the four judicial officers.”
The contention about neurosurgery charges was not answered in detail. This is significant because Loya’s family members told Caravan there were bloodstains on his shirt, which the petitioners later argued could be the result of an injury to the head.
The apex court observed that Loya’s family had disassociated from their interviews to Caravan, alleging attempts by Mohit Shah, then Chief Justice of the Bombay High Court, to bribe Loya for a favourable verdict in the Sohrabuddin Sheikh case. The court said:
“The video recording of an interview given to Caravan by the father and sister of Judge Loya was also handed over to the court on a pen drive. The members of the family of Judge Loya have disassociated themselves from the statements attributed to them in the Caravan publication. The video recording, which we have seen, contains snippets of an interview. Evidently, only a part of the interview has been produced. The allegations against the Chief Justice of the Bombay High Court are hearsay.”
If the court thought the video was edited, why did it not seek the unedited version from Caravan?
Moreover, that petitioners’ had argued that Loya’s family could have retracted their statements under duress. The court also did not deal in detail with the letter written to Mohit Shah by Anuj Loya, seeking an investigation into his father’s death.
Stay in Ravi Bhawan
On the question of whether Loya actually stayed in the government guest house in Nagpur, the court pointed to the visitors registry to conclude a suite had been booked in the name of one of the judges accompanying him. The court accepted the statements of two of the judicial officers that they stayed in the same room with Loya at Ravi Bhawan. It also pointed out that Loya called his wife on the night of November 30 and told her he was staying at the guest house. The court said:
“The occupancy register does show that the room was in the name of Judge Kulkarni. His account is that his two friends and colleagues (Judge Loya and Judge Modak) shared the accommodation with him. It is unfair to disbelieve this account of colleagues in the district judiciary. They were friends, known to each other and had stayed together at Ravi Bhavan during the short trip to Nagpur. No counsel has suggested that they were not closely acquainted to each other.”
The court seems to have not taken into account media reports that were published after the judgement was reserved on March 16. In particular, an investigation in Caravan published on March 29 about how staff at Ravi Bhawan had no clue about the happenings of December 1, 2014.
The Supreme Court slammed the petitioners for levelling for what it described as “scurrilous allegations”. It especially took to task lawyers Dushyant Dave and Prashant Bhushan for some of the arguments they had made. About Dave’s plea for cross-examining the four judges, the court said:
“By casting unfounded aspersions on the judicial officers who had accompanied Judge Loya, the petitioners have revealed the real motive of these proceedings which is to bring the judiciary into disrepute on the basis of scurrilous allegations. We find no basis or justification to allow the request for cross-examination. The application shall accordingly stand rejected.”
Bhushan had sent the ECG and other medical records to Dr Upendra Kaul, former head of forensics at the All India Institute of Medical Science in Delhi, and obtained his opinion. The doctor suggested reasons other than heart attack for Loya’s death. The court objected to the manner in which this was done, saying:
“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. In their practice before this court, Counsel are expected to assist the court with a sense of objectivity in aid of justice. What has happened here is that Mr Prashant Bhushan has adopted a dual mantle, assuming the character of a counsel for the intervenor as well as an individual personally interested on behalf of the intervening organisation of which he is a member. He has gone to the length of personally collecting evidence to somehow bolster the case. This has bordered on an attempt to misrepresent the facts and mislead the court.”
The court reproduced the expert medical opinion obtained by the Maharashtra government that the conclusions in the postmortem report were correct.
The court also spoke about the misuse of public interest litigation, saying the true face behind the litigants is seldom revealed.
“At the other end of the spectrum are petitions which have been instituted at the behest of business or political rivals to settle scores behind the facade of a public interest litigation. The true face of the litigant behind the façade is seldom unravelled.”