SC verdict on Loya death: Conduct of advocates seeking to sensationalise case makes this a day of shame for the Bar

The Supreme Court of India dismissed petitions seeking a Special Investigation Team (SIT) probe into the death of special CBI judge BH Loya, noting that there were no grounds to hold even a reasonable suspicion about the cause or circumstances of Loya’s death. Tehseen Poonawalla, a Congress leader, had filed a petition in the Supreme Court seeking an inquiry into the circumstances of the death of Justice Loya, a judicial officer in Maharashtra who was presiding over the Sohrabuddin Sheikh fake encounter trial at the time. The petition was based on an article published in The Caravan in November 2017, as well as subsequent reports in other media outlets. [caption id=“attachment_4438753” align=“alignleft” width=“380”]  File image of judge BH Loya. Courtesy: Facebook[/caption] Senior advocates such as Dushyant Dave, Indira Jaising and Prashant Bhushan, among others, made arguments at different stages pleading for the same result, i.e., that the Supreme Court order an inquiry into Loya’s death. The case saw as many as nine hearings between February and March this year. Loya died on the morning of 1 December, 2014, while traveling to Nagpur for a wedding. The Supreme Court examined all documentary evidence related to Loya’s death and its aftermath. The State of Maharashtra had also ordered a discreet inquiry into the death, in which the statements of four judicial officers was recorded pursuant to permission granted by the Chief Justice of the Bombay High Court. The first line of attack of the petitioners and the intervenors was over the statements of the judicial officers, attempting to somehow poke holes and create discrepancies in their statements. The officers had accompanied Loya to Nagpur for the wedding. Dushyant Dave, for example, argued that the statement of judicial officers could not be regarded as independent because two judges of the Bombay High Court in an article in The Indian Express, took the same view, i.e., that Justice Loya died due to natural causes. Dave sought to argue that the judicial officers, junior in rank to the Bombay High Court judges, could not have taken a different view. The Supreme Court, however, slammed this line of argument, stating that the judicial officers recorded their statements three days prior to the publication of the views of the Bombay High Court judges in The Indian Express. It also noted that “senior counsel chose with all seriousness to make those submissions without a sense of responsibility, and without verifying the basic facts reveals a disturbing state of affairs”. Some of the other insinuations held as flimsy and deliberate attempts were as follows: - That the judicial officers did not meet Loya’s relatives soon after the death, but after a few days. - Why the judicial officers took Justice Loya to Dande Hospital initially, and not to a specialised cardiac care facility. - As per The Caravan article, why was Justice Loya transported to the hospital in an auto-rickshaw, as no car was available (this directly contradicted statements of the judicial officers). - Justice Loya was wearing a trouser and shirt at the time of his death (4 am). - The photograph of the room at Ravi Bhavan, where the judges stayed, was too small for all of them to have shared. - The hospital bill contained, among other things, neurological charges and charges for diet consultation. - Why was the family of Justice Loya not brought to Nagpur by a flight from Mumbai, and why did his body reach Gategon unaccompanied for the funeral rights? - The fact that one bench of the Bombay High Court, consisting of Justice BR Gavai and Justice VM Deshpande, quashed a criminal case in which one of the accused was Devendra Fadnavis, the current Chief Minister of Maharashtra. These insinuations led the apex court to remark that the petitioners had “revealed the real motive of these proceedings” by casting unfounded aspersions on judicial officers who had accompanied judge Loya, i.e., “to bring the judiciary into disrepute on the basis of scurrilous allegations”. An attempt to impute motives to Justice Gavai (one of the two Bombay High Court judges) whose statements featured in The Indian Express article was described as an attempt to “somehow sensationalise the case”. It also specifically noted senior advocate Prashant Bhushan’s intervention which occurred after the main petitioners and the State of Maharashtra had made their submissions before the Supreme Court. Bhushan sought, among other things, to obtain a separate medical analysis by forwarding the ECG and histo-pathology report to Dr Upendra Kaul, a former Professor of Cardiology at AIIMS. This request to Dr Kaul was done based on a report in The Caravan which stated that post-mortem and histo-pathology reports were sent to a forensic expert, Dr RK Sharma, who ruled out the possibility of death due to a heart attack. Sharma has categorically stated that he was “grossly misquoted by The Caravan regarding the death of judge Loya”, and that the “conclusions drawn are imaginary”. He had not even given any report regarding the death of judge Loya, and AIIMS confirmed the same.

Therefore, Bhushan evidently acted on his own accord on a mission, as the Supreme Court remarks, “to somehow bolster the case of the petitioners”. The questionnaire he sent to Dr Upendra Kaul was based on a non-existent report claimed to be prepared by Dr Sharma and published in The Caravan magazine.

Bhushan’s attempt, in Supreme Court’s words, was a “carefully orchestrated attempt made during the course of these hearings on behalf of the Centre for Public Interest Litigation (Bhushan’s NGO) to create evidence to cast a doubt on the circumstances leading to the death of Judge Loya” The “laconic questionnaire” he sent to Kaul to then use his opinion to create a conspiracy theory left “much to be desired”, and was a “singular reflection on the lack of objectivity which is to be expected from counsel appearing before this court”. This was a borderline attempt “to misrepresent the facts and mislead the court”. Senior advocates are granted such a designation by virtue of their ability and standing at the Bar among other things. The judiciary relies on them to exercise responsibility in regard to their submissions before the court even if they are vigorously representing a party in an adversarial dispute. The conduct of the senior advocates in seeking to somehow sensationalise the death of Justice Loya leaves much to be desired. It is a day of shame for the Bar.