Published on: May 22, 2018
In a dramatic development, the Bombay Lawyers Association (BLA) has filed a petition seeking a review of the Supreme Court’s judgment in the case calling for an investigation into the death of Judge Loya. On April 19 this year, a three-judge Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud dismissed the petitions filed by Tehseen Poonawalla, Bandhuraj Lone and others, seeking an independent investigation into the death of Judge Loya.
Ironically, in its 114-page judgment authored by Justice Chandrachud, the Supreme Court had come down heavily on the petitioners and their counsel, observing that their actions amounted to misuse of judicial process and denigration of the judiciary’s image. To clarify the matter, the BLA makes it clear that its petition was not filed with an intention of bringing the judiciary to disrepute.
“The Writ Petition was filed seeking merely an independent enquiry into the death of late Judge Loya and such a petition can under no circumstance be treated as having been filed to attack the independence of Judiciary.”
The review petition states that paragraphs 70 to 75 of the judgment ought to be deleted, as it is error apparent on the face of the record. In these paragraphs, the Court discusses the scope of public interest litigation, and makes adverse remarks against the petitioners and their lawyers.
“If the said observations and findings stand, it will discourage persons in future from coming forward to protect this great Institution which is more often than not under attack from the other branches of the Democracy.”
The review petition also states that the only defence put forward on behalf of the state of Maharashtra was the unaffirmed report of an enquiry held by a Police Officer, Commissioner of State Intelligence, which contained the testimonies of the judges accompanying Judge Loya during his last hours.
“If the enquiry was being ordered by the State Government on 23rd of November following publication of Article on 20th and 21st November, how was it that the Commissioner, State Intelligence wrote to the Hon’ble Bombay High Court stating the names of the four Judicial Officers and 2 High Court Judges for recording their say…
…So how is it that within minutes of ordering the enquiry the Commissioner State Intelligence had gathered the names of five other Hon’ble Judges as possible witnesses for recording say when their names were not in public domain at all…”
It is also contended that the observations made in paragraph 43 of the judgment amounts to error apparent on the face of the record. The fact that Bombay High Court judges went to the press to dispel doubts surrounding Judge Loya’s death has been called into question.
“The submission was to the effect that the name of the concerned Hon’ble Judge of the High Court was mentioned in the letter of Commissioner Intelligence, sent to Hon’ble Chief Justice of the Bombay High Court on November 23, 2017 even before starting inquiry to record his “say” along with others.
The Hon’ble High Court did not accord permission qua Hon’ble High Court judges. Yet, the Hon’ble Judges went to Press on November 27, a day before the Report was submitted and gave statements virtually on the same lines as the contents of the Report.”
The judgment has also been assailed on the grounds that the petitioners were not given the opportunity to cross examine all the persons whose statements had been recorded by Commissioner Intelligence. This right, the review petition states, is conferred by the Supreme Court Rules, 2013 and KK Kochunni v. State of Madras, wherein it was laid down that cross examinations can take place in writ petitions.
“The judgment proceeds and relies virtually entirely on the statements of the Learned Judges. It is respectfully submitted that Petitioner Association has never questioned the status and the respect commanded by those Learned Judges. But if they chose to give statements which State of Maharashtra heavily replied upon and which have influenced this Hon’ble Court in its decision making they ought to have been offered for cross examination.”
The review petition goes on to state,
“If the enquiry was ordered as prayed for and if it found that Judge Loya had indeed died of heart attack it would have set all doubts to rest but it would have sent a strong message to the Judiciary and to the country that individuals are willing to stand up for the judiciary and not desert it in time of challenge. As against that if enquiry had found some foul play it would have truly been a great service to the independence and impartiality of Judiciary and its Members…” ( Subrang India )