What the four dissenting judges were telling us: Supreme Court hearing into Judge Loya's death was improper

One of the main triggers for the events on Friday at the Supreme Court was the issue of the assignment of the Judge Loya case. Some background. Judge BH Loya was a CBI Special Sessions Judge who was hearing the Sohrabuddin Sheikh fake encounter case. One of the main accused in this case was BJP President and now Rajya Sabha MP, Amit Shah. Amit Shah was discharged in the case, but not by Judge Loya. He was discharged by another judge as Loya died during the pendency of the trial. The Supreme Court had directed that the judge hearing the matter should not be transferred. The Caravan, had reported that the death of Loya happened under suspicious circumstances and that it warranted an investigation. The news magazine also raised questions about the conduct of the then Chief Justice of the High Court at Bombay, Justice (Retired) Mohit Shah. Though these allegations came out many years after the death of Judge Loya, senior retired members of the high judiciary demanded an inquiry post the article was published. [caption id=“attachment_4302143” align=“alignleft” width=“380”] File image of Judge BH Loya. Image courtesy: Facebook[/caption] Now any court possessing writ jurisdiction is empowered to order the inquiry. Both the Supreme Court as well as the high courts are empowered under the Constitution to hear and entertain public interest litigations into causes such as this. The question though is one of protocol and propriety. Which would be the ideal forum to hear and supervise an inquiry into the death of a member of the lower judiciary, a sessions judge in this case? Both the high courts and the Supreme Court are creatures of one Constitution. They both, however, exercise their jurisdictions in very different spheres. A high court possesses a power the Supreme Court does not. And that is the power of superintendence, ie, the power to supervise the functioning of courts that are within its territorial jurisdiction. A high court is an ultimate court in a state or states that are within its jurisdiction. It can be both an original as well as an appellate court, both in criminal and civil matters. Though there are no longer trials before a high court in criminal matters (except under special laws), despite the fact that the procedural law envisages them, a high court’s power of superintendence is not one that is found with the Supreme Court.

The Supreme Court doesn’t supervise the high courts in India. Even though the high courts are bound by the Supreme Court’s rulings on law, the Supreme Court can only hear appeals. It cannot revise procedural rulings or interim orders of a high court.

The natural forum, therefore, to entertain a petition or to conduct such an inquiry is the high court that had the superintendence of the court which the judge presided over, in this case, it’s the Bombay High Court. The Bombay High Court had taken up a matter filed by the Bombay Lawyers Association seeking an inquiry into the death of Judge Loya. This matter was mentioned before a division bench of the high court and it had decided to take the matter up on 23 January. Since this question was pending before the high court, it meant the high court was seized of the matter.

Once the high court is seized of the matter, the Supreme Court cannot and should not have entertained it. In fact, when the matter was taken up on 12 January, there were objections at the Bar of the Supreme Court raising this very point.

Dushyant Dave representing the Bombay Lawyers Association said , “The Bombay High Court is seized of the matter and in my opinion, the Supreme Court should not hear this matter. If the court goes ahead with the hearing, it may have implications before the high court."

The Supreme Court said it would examine the objection when it hears the matter. But this raises a serious issue of propriety once more. The Supreme Court should have let the Bombay High Court finish hearing the matter before it took up the matter on appeal. Since the Bombay High Court was already hearing this matter there was no need to take this unprecedented step of hearing the same matter.

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A high court is bound by a decision of the Supreme Court. If the Supreme Court decides first, a high court cannot pass final judgement. Now that the Supreme Court is seized of the matter, the high court cannot in the interest of propriety go ahead and hear it. Though in law it can. What the Supreme Court has essentially done is issue a de facto prohibition to the Bombay High Court from hearing the matter at all for now. This is exercising superintendence over a high court, a power the Supreme Court does not have.

This may be why the four judges took that unprecedented step. The matter was listed, when it should have ideally been not-listed till the Bombay High Court had decided on the matter. That’s not all though. Not only was the matter listed in the Supreme Court, it was also heard, and de-facto superintendence was exercised. And that too in a case that may have implications for a sitting Rajya Sabha MP and the President of the ruling party in power. It raises serious questions of propriety.

Institutions are about how they project themselves. The whole idea of propriety is not just about doing the right thing but also about doing it in a manner that it appears to everyone that you are doing the right thing. It must be beyond doubt and leave no room for baseless speculation. The actions of India’s top court must be such that they are beyond such doubts. This is perhaps the point the four judges were trying to make when they went public with their letter about case allocations. The Supreme Court hearing the Judge Loya case when the Bombay High Court is seized, is something that is not proper. But it happened nonetheless. Only time will tell us if the country is richer or poorer for it.