Dushyant Dave

The sad demise of Judge Loya is the biggest mystery yet to be unravelled even after three years. It is also the biggest tragedy for the Judiciary for more than one reason.

On the one hand, a serving Judge handling a sensitive case has died in circumstances which raise serious doubts as to the cause of his death. On the other hand, the apathy shown by the Judiciary collectively towards it speaks clearly that no one in the system to which he belonged really cares. The Higher Judiciary is the guardian of the subordinate Judiciary. Sometimes I wonder, considering this apathy, whether Judge Loya ever existed. But then, in the next moment, I am faced with his picture in my mind, which shakes me from my slumber to do something in the matter.

Judge Loya appears to have died in the wee hours between November 30, 2014 and December 1, 2014 at Nagpur. There are no hard facts available so far which can conclusively prove the exact cause of his death. The ostensible reason is a heart attack. But then, he was 48, and hale and hearty till a day before, when he left for Nagpur from Mumbai.

His death follows the unceremonious exit of Judge Utpat, who was transferred overnight by the Administrative Committee of the Bombay High Court presided by the infamous Chief Justice Mohit Shah. This transfer was in violation of Supreme Court’s express directive made on 27.09.2012.

His death was followed by the quick appointment of Judge MV Gosavi in his place, and the even quicker discharge of one of the most controversial politicians of the country, Former Minister of State for Home, Gujarat and current President of the Bharatiya Janata Party, Shri Amit Shah. These events naturally throw grave doubts about the theory of natural death of Judge Loya.

The BJP government was formed at the Centre on 26th May, 2014 and in Maharashtra on 19th October, 2014. Clearly, the CBI came under direct control of the Central Government thereafter and contrary to its own stand before the Supreme Court – its own FIRs and charge sheets and the prima facie findings recorded by the Supreme Court in series of judgments holding that Sohrabuddin Sheikh, his wife Kausarbi and his friend Tulsiram Prajapati were killed in three separate encounters stage-managed by the Gujarat and Rajasthan Police during 2005 and 2006 when Shri Amit Shah was indeed the Minister of State for Home, Gujarat – the CBI did not challenge the order of discharge.

These killings were initially described by the Gujarat Police as genuine encounters under various FIRs filed by them, but later, after the Supreme Court intervened, the SIT constituted under Smt. Geeta Johri, a Gujarat Cadre IPS Officer, clearly found that these killings were stage-managed encounters.

Undisputedly, all the three deceased were in the custody of the Gujarat and Rajasthan Police respectively and therefore, their deaths have to be attributed to the concerned named accused, including Shri Amit Shah. The facts and the evidence in the case were sufficient for a full trial by a competent Court to find out the truth. The Supreme Court had ordered even “larger conspiracy” in their killings to be inquired by the CBI when it transferred the case from the Gujarat Police to the CBI. This was necessary to find out the real “motive” behind their killings. Whether the killings were related to any other recorded crime is something that the CBI should have ascertained.

Yet, Shri Amit Shah has been discharged without facing a full trial on the murders, in the face of the directions of the Supreme Court. CBI deliberately did not file appeals challenging such discharge before the Bombay High Court. There can be no doubt that the CBI has been pressurized not to file them. Meanwhile, Shri Amit Shah became the President of BJP on 9th July, 2014 and thus became one of the most powerful persons in the country. Naturally, the stakes are very high to protect such a person with the above background.

Once it became public that the Bombay High Court, on January 23, was likely to hear cases seeking an inquiry into the mysterious death of Judge Loya, wheels started moving.

Writ Petition No 20/2018 came to be filed before the Supreme Court by someone claiming to be a journalist in Mumbai. It is surprising that someone should approach the Supreme Court from Mumbai when the Bombay High Court was anyway likely to consider the matter at an early date. What follows is even more extraordinary.

The matter is mentioned before the Chief Justice of India, who hurriedly agrees for fixing the hearing of the matter on the next day. In doing so, the Chief Justice overlooks the fact that thousands of Special Leave Petitions are pending at admission stage requiring urgent hearings and hundreds of Counsel are being declined request for early hearing every week. There is no discernible yardstick available with the Chief Justice to grant or refuse such request.

What was the urgency in respect of a matter where Judge Loya had died in 2014 and the Writ Petition was being filed in January of 2018? To top it all, the Chief Justice assigns the case to the Bench presided by Hon’ble Mr. Justice Arun Mishra sitting in Court 10, thus completely overlooking the seriousness of the matter which demanded that it be assigned to the senior most Judges, preferably a Five Judge Bench of Senior Judges headed by Chief Justice himself. Another petition was also filed and tagged with the above matter.

The matters were listed on 12th January, 2018. When I made a fervent prayer to the Hon’ble Bench not to hear it in view of the forthcoming Writ Petitions before the Bombay High Court, my request was sternly declined. The Writ Petitioners were represented by Advocates on Record and not by any Senior Counsel, clearly showing that there was no seriousness on that day or maybe because of the confidence in the Court.

The hearing was brusque, nothing was argued, nothing was discussed and the Court merely enquired as to whether the Government of Maharashtra was present. Shockingly, the counsel for the Government of Maharashtra – a BJP Government – was present, despite there being no notice.

In the Court and outside, many lawyers representing various BJP State Governments were present and so was the Additional Solicitor General of India, who is known to be close to Shri Amit Shah. It all looked too good to be true. The Court asked the counsel for the Government of Maharashtra to produce documents, including the “Post Mortem Report”, on Monday, January 15.

If this was not enough, what transpired on the next date of hearing on January 16, when the following order was passed, was sufficient to shock the judicial conscience of any Judge or lawyer of respect:

“Let the documents be placed on record within seven days and if it is considered appropriate copies be furnished to the Petitioners. Put up before appropriate Bench”.

A careful reading of the above order shows the appearance of Shri Pallav Sisodia, Senior Advocate, for one of the petitioners, and Harish Salve for the Respondent, State of Maharashtra. Shri Pallav Sisodia, a respected lawyer, had appeared for Shri Amit Shah in Special Leave to Appeal (Crl) No 9003/2010 filed by the CBI challenging the grant of bail to Shri Amit Shah in the very same Sohrabuddin encounter case by the Gujarat High Court, before it was transferred to Mumbai. He had appeared on 27.09.2011, 28.09.2011 and 29.09.2011 along with Shri Ram Jethmalani, Senior Advocate, as the Record of proceedings of Supreme Court discloses. Subsequently, he appeared in the same matter on 30.11.2011 and 06.09.2012 apparently for some other accused in the same case.

Shri Harish Salve first appeared for Rubabuddin, brother of Sohrabuddin, in Writ Petition (Crl) No 6 of 2007 on more than one occasion and subsequently successfully defended Shri Amit Shah in opposing the Special Leave Petition (Crl) No 5000 of 2016 filed by Harsh Mander against the judgment and order of the Bombay High Court upholding discharge on the ground that since State has not filed appeal, Harsh Mander was not the person who could maintain the petition.

On 01.08.2016 the following order was made,

“We see no reason to entertain this Petition under Article 136 of the Constitution of India. The Special Leave Petition is accordingly dismissed.”  

It does not take much imagination to understand the nature and purpose of the Writ Petition so filed. The appearance of two lawyers who successfully defended Shri Amit Shah in the Writ Petition filed in 2018 for the two sides demonstrates the same unequivocally. There seems to be a massive cover up operation underway.

In a desperate bid, the matter was mentioned today before the CJI and it has now been listed for Monday, January 22, as if there was an urgency, clearly to pre-empt the Bombay High Court hearing.

Public Interest Litigation, according to the Supreme Court, means a legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. Such Writ Petitions can be moved not only by the aggrieved individual but also by a public-spirited individual for the enforcement of constitutional or legal rights of some other person who is unable to approach the Court for redress on account of some disability.

But the Supreme Court also says that it is.

“a weapon which has to be used with great care and circumspection and the Judiciary has to be extremely careful to see that behind the beautiful veil of public interest and ugly private malice vested interest and/or publicity seeking is not lurking” and that “the attractive brand name of public interest litigation should not be used for suspicious product of mischief”. (See Dattaraj Nathuji Thaware v State of Maharashtra 2005 1 SCC 590).

PIL is being abused in many ways, including to ambush genuine causes. In recent times, such PILs have played havoc with the rights of the citizens. Recently, the Supreme Court ordered investigation and institution of prosecution against millions of NGOs by merely an interim order in one such PIL, which is being used by the Government to target those who oppose it.

The real question is that if Judge Loya indeed died of a heart attack as is being jointly claimed by the Executive and sadly by Judiciary in Maharashtra, why all these attempts to stymie the real inquiry being sought by a lawyer’s group before the Bombay High Court? These attempts, crude as they are, reflect something deeper and make one wonder as to where the truth in Judge Loya’s death lies.

The Judiciary has a bounden duty to ascertain the cause of death of Judge Loya, provided of course, it wants to really know why and how Judge Loya died.

I hope after all this, the CJI will see the light of day and ensure that the matters are placed fairly before a Bench which can inspire confidence and enhance the image of this great institution.

The author is a Senior Advocate and Former President of the Supreme Court Bar Association

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.