How A Quick Acting State Government Spared Judge Loya’s Death Further Inquiry

Kudos to the Maharashtra state government. Within a day of a media report suggesting foul play in the death of a district judge, the state began a “discreet inquiry” by the commissioner of the State Intelligence Department.

And that report, readied in just three working days, single handedly demolished almost all doubts raised in the Supreme Court regarding how Judge Brijgopal Loya had died.

Loya, a district magistrate judge presiding over the CBI special court in Mumbai, was assigned the trial against the 2005 alleged staged murder (encounter killing) of Sohrabuddin Sheikh. Loya was appointed in 2014 after the judge before him was transferred. Even though an earlier Supreme Court order mandated that the Sohrabuddin trial be “conducted from the beginning to the end by the same officer”. One of the accused in that case was Amit Shah, the current president of the Bharatiya Janata Party. The party that runs India's government since 2014. Shah was later discharged.

But let's return to the main story of the Supreme Court order that relied on an inquiry conducted by a state whose government is run by the same BJP.

The Caravan magazine printed its story “A Family Breaks Its Silence : Shocking Details Emerge In Death Of Judge Presiding Over Sohrabuddin Trial” on Nov. 20, 2017.

A rather alert and responsive state government immediately swung into action.

“Following the publication of the Caravan articles, the Principal Secretary (Special) in the Home Department of the state government directed a discreet inquiry by the Commissioner of the State Intelligence Department. Such an inquiry was initiated by Shri Sanjay Barve, Director General and Commissioner in the State Intelligence Department.” - Supreme Court

On Thursday Nov. 23, the commissioner wrote a letter to the chief justice of the Mumbai High Court seeking to record the statements of four judges who had accompanied Judge Loya to attend a wedding in Nagpur, where his death occurred.

The Registrar General of the high court responded via a letter the same day saying the chief justice had granted permission.

Within 48 hours, all the judges had submitted their statements recounting events that had taken place three years ago.

On Tuesday Nov. 28, the discreet inquiry report was submitted to the Additional Chief Secretary (Home).

Not surprisingly, the report debunked every claim in the magazine story, which was the basis of the cases filed by various petitioners seeking an independent inquiry into the death of Judge Loya.

That independent inquiry is now not to be.

Because...

The petitioners expressed surprise and suspicion at the speed with which the discreet inquiry took place.

The judges' statements have a “ring of truth”, “are without premeditation” and show the four judges acted with a sense of duty, said the Supreme Court bench led by the Chief Justice of India Dipak Misra, in an order penned by Justice DY Chandrachud.

The petitioners questioned why, when Judge Loya complained of chest pain, the judges accompanying him took him to an ordinary hospital and not a specialised cardiac care facility that was equally close by.

The Supreme Court order said to attribute motives to his colleagues is absurd, if not motivated.

“In hindsight, it is easy to criticise actions which are taken by human beings when faced with an emergency. It is easy for an observer sitting in an arm-chair at a distant point in time to assert that wisdom lay in an alternate course of action. That can never be the test for judging human behaviour. The conduct of the colleagues of Judge Loya in attending to him is not in question.” - Supreme Court

The petitioners emphasised the statement by one judge suggesting the ECG machine at the Dande hospital was not working, whereas another judge and medical records claimed an ECG was done.

The Supreme Court judges relied on the progress notes of a doctor at Meditrina hospital, the second facility Judge Loya was taken to, that later declared he was dead on arrival.

The petitioners urged that if Judge Loya experienced chest pains at 4.00 am on Dec. 1, surely he could not have arrived at the hospital dressed in pants and a shirt as recorded in the inquest.

The Supreme Court was satisfied by a judge's statement that when he reached the guest house where Loya was staying, Loya was in the toilet, thereby suggesting that he was awake (and probably had had time to get dressed).

The petitioners wondered how the Meditrina hospital bill for Loya's treatment contained charges for diet consultation and neurological charges even though its record show Loya was dead when brought to the hospital.

The Supreme Court said “the issue in the present case is not whether the bill which was prepared at Meditrina amounts to negligence”.

The petitioners relied on a video of an interview with Loya's father and daughter in which they had questioned the circumstances surrounding his death.

The Supreme Court said only parts of the interview had been produced.

A lawyer for one of the petitioners sought to cross examine the judges accompanying Loya on that visit to Nagpur, Loya's family members and The Caravan reporter.

The Supreme Court found the request was unjustified.

One of the petitioners pointed to the opinion of forensic expert Dr RS Sharma that Judge Loya's medical reports do not support the official claim that he died of a heart attack. This view was published in a later story by The Caravan.

The Supreme Court relied on a letter placed on record by Mukul Rohatgi, the counsel for the Maharashtra government, in which Dr RS Sharma claims he was “grossly misquoted” in the story. It also considered the views of another doctor whose statement obtained by the police debunked the claims in the story.

Magazine Story Versus Discreet Inquiry Report

The petitioners made many more arguments, admittedly some frivolous, in an effort to establish that Judge Loya died under mysterious circumstances.

Loya was brought to the first hospital in an auto-rickshaw.
There was an error in his name when the hospital form was filled out.
His body was sent unaccompanied to his home town for cremation.

For each they relied on The Caravan story.

The Supreme Court found no truth in any of these arguments, relying for the most part on the discreet inquiry report filed by the state government.

Unfortunately, any gain the petitioners made in questioning the state's narrative seems to have been squandered by constantly questioning the integrity of judges.

One counsel, Dushyant Dave, cited a decade old case in which Judge Gavai—one of the judges who was in Nagpur at the time of Judge Loya's death and has spoken about it publicly—quashed criminal proceedings against Devendra Fadnavis, now chief minister of Maharashtra.

Another counsel, Prashant Bhushan, it seems, suggested that two of the Supreme Court judges on the bench recuse themselves as they earlier served in the Bombay High Court and were familiar with some of the judges who recorded statements in the Loya matter.

“If this were to be the test, it is rather ironical that the petitioners had instituted proceedings before the Bombay High Court each of whose judges were expected to be faced with the same situation. We informed Mr Bhushan that a decision as to whether a judge should hear a case is a matter of conscience for the judge.” - Supreme Court

But if the lawyers for the petitioners overreached in suggesting widespread judicial corruption, the Supreme Court underwhelmed in shrugging off the incongruities accompanying the incident.

Even if it claims it did so to protect against “a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions.”

It is true that any set of facts can be posed in a manner that arouses suspicion and doubt. But when the shadows are so long doesn't the picture deserve a closer look?

After all hasn't the Supreme Court itself oft repeated that – justice must not only be done but must be seen to be done.

Menaka Doshi is Managing Editor at BloombergQuint.

All the information in this column regarding the incidents surrounding Judge Loya's death has been sourced from the Supreme Court judgment.