The facts are in doubt but the judges seemed to already have made up their minds.
The Supreme
Court is not interested in finding out the truth about the suspicious death of
Judge Brijgopal Harkishan Loya. The court takes more than a hundred pages to
say this, but if one had to summarise it in one line, this is it.
To recap: all that
the petitioners wanted was a fair and impartial inquiry into the startling
revelations made in the context of Judge Loya’s death in 2014 in a series of
articles authored by Niranjan Takle in Caravanmagazine.
What we got
instead was a judgement that goes into each and every single questionable
circumstance, and through a mix of conjecture and assumption, tries its best to
put an end to any discussion on the topic. It is almost as if the Supreme Court
was hearing an appeal against a conviction in a criminal case and felt
compelled to go into every piece of evidence that might be in favour of the
accused to eventually acquit them of all offences.
While that approach is justified when a trial
has taken place and facts established according to law, to do so when the facts
are in doubt suggests that the court has already made up its mind on what happened
to Judge Loya.
What is most
galling though is the hypocrisy that stares us when we read this judgement.
A) On the
inquiry
When it came to
Shafin Jahan, the husband of Kerala medical student Hadiya, the court blithely continued the inquiry by the National
Investigation Agency in the “love jihad” case without mentioning what purported
offences might have been committed and how it was within the agency’s
jurisdiction to investigate these offences. Even when its own order that the
investigation was to be monitored by a Supreme Court judge was discarded by the
National Investigation Agency after Justice RV Raveendran refused to oversee
it, the Supreme Court thought it fit to ignore it and let the agency continue
anyway.
Yet, when it
comes to Judge Loya’s death, the court accepted the Maharashtra government’s
word as the gospel truth because of the “discreet enquiry” that was carried
out. In a matter where the confidence of the public in the judiciary has been
shaken by the allegations, the Supreme Court’s response is to cling to the
Maharashtra government’s “discreet enquiry” as an article of faith.
The question of
how an internal vigilance procedure would be sufficient in a matter as grave
and serious as this is simply brushed aside. The Supreme Court goes to great
lengths to put a stamp of approval to this “discreet inquiry” which involves no
testimony on oath, no evidence produced on record, no opportunity for cross
examination and no opportunity for the public to read the report and be
satisfied of its fairness and correctness.
B) Statements
of judges
In giving its
stamp of approval to the “discreet inquiry”, the Supreme Court gives great
credence to the words of four judges (but not the four judges you have in mind)
who were with Justice Loya when he died in Nagapur in 2014. The statements of
Judges Shrikant Kulkarni, SM Modak, Vijay Barde and RR Rathi were not made on
oath, or subject to cross examinations but, if the judgement is to be believed,
constitute the whole truth and nothing but the truth. This is a new and
interesting principle of law that the court has found for the purposes of this
case – that the statements of judicial officers made outside the court, about
facts in their personal knowledge, are presumed to be true irrespective of
contradiction by any other source.
While faithfully
reproducing the Caravan articles in question word for word,
the Supreme Court tosses them aside with little or no reasoning. It brushes
away the concerns expressed by Judge Loya’s family with vague allusions to an
alleged retraction or misquoting without ever making clear what the basis for
this is. As far as the court is concerned, the “official” version of the truth
should be believed because it is based on judges’ statements, and that, it believes,
is sufficient to convince anyone. If the Evidence Act were to be amended along
these lines, I am sure a great many number of cases can be quickly disposed
without the need for a trial or evidence.
In all
seriousness though, the Supreme Court take no note of this one crucial passage
in its judgement
transferring the case out of Gujarat to Maharashtra:
“39. The
decision to transfer the case is not a reflection on the State judiciary and it
is made clear that this Court reposes full trust in the judiciary of the State.
As a matter of fact, the decision to transfer the case outside the State is
intended to save the trial court in the State from undue stress and to avoid
any possible misgivings in the minds of the ordinary people about the case
getting a fair trial in the State.”
When the trial
of Amit Shah was transferred out of Gujarat, it was done keeping in mind that
he had been the Home Minister of the State. With the very same Amit Shah now
the head of the party that rules the State of Maharashtra, should the court not
have given some thought to its own earlier judgement? Whether one agrees with
the Bombay High Court Administrative Committee’s interpretation of the order on
when it was appropriate to change a trial judge, does it not behoove the court
to take its own earlier order seriously to ensure that public confidence in the
trial is maintained?
In reading this
judgement, one can’t help but get the sense that the Supreme Court does not want to
believe that there might have been something suspicious in Judge Loya’s death.
That the man who was entrusted with an onerous and important responsibility
might have been done to death for simply carrying out his duty faithfully. That
the truth might somehow be too dangerous for us to find out.
This insistence
on denial brings to mind an infamous passage from the Supreme Court’s
Additional District Magistrate Jabalpur judgement at the height of the
Emergency and one which I think is worth repeating and remembering:
“Counsel
after counsel expressed the fear that during the emergency, the executive may
whip and strip and starve the detenu and if this be our judgment, even shoot
him down. Such misdeeds have not tarnished the record of Free India and I have
a diamond-bright, diamond-hard hope that such things will never come to
pass.”
History tells
that Justice YV Chandrachud was absolutely and thoroughly wrong. One hopes
history does not repeat itself.—The
Wire
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