Decoding judge Loya case
CBI judge BH Loya died on December 1, 2014 in Nagpur. Hospital records show he passed away following a heart attack. At the time, no one from his family, his legal colleagues, or the media raised any doubts about the circumstances around Loya’s death. The 2014 Lok Sabha election was over. There was nothing to be gained by politicising the death of a CBI court judge even though Loya was hearing a case involving the alleged fake encounter of Sohrabuddin Sheikh in Gujarat in 2005 when BJP president Amit Shah was home minister of the state.
Three years later, in November 2017, with the crucial Gujarat Assembly elections around the corner, the Loya case was exhumed by The Caravan magazine. It alleged a deep conspiracy. In essence what the magazine said was this: Loya’s death was not natural; he could have been murdered because he was about to pass a verdict making Shah complicit in the alleged fake encounter that killed Sohrabuddin and others; the judge who replaced Loya dismissed the case against Shah within 15 days of first hearing it.
The Congress and the Left now took up the case in real earnest. Although Loya’s son had written a letter on November 29, 2017 to The Caravan refuting its story, the magazine implied the signature on the letter did not seem to match Anuj’s.
Once the Gujarat elections was over, the Loya issue moved up a gear. Fresh petitions were filed in the Bombay High Court and the Supreme Court seeking a probe into Loya’s death. Anuj Loya held a press conference on January 14 to reiterate that his family did not want a probe. He said they were being harassed by journalists, activists and NGOs who wanted them to question whether his father had died of natural causes.
Meanwhile, a curious incident occurred. Senior counsels Dushyant Dave and Indira Jaising asked the Supreme Court bench of justices Arun Mishra and MM Shantanagoudar on January 12 not to hear the Loya case as it was already placed before the Bombay High Court. The moment the Supreme Court heard the case, the Bombay High Court would cease to hear it.
Dave pleaded with justices Mishra and Shantanagoudar “with folded hands” (his words) not to hear the Loya case. Jaising also requested the bench not to take cognisance of the case. The justices declined. They posted it for hearing on January 16. Within minutes, perhaps entirely coincidentally, four collegium justices began their press conference. Was the real purpose of the unprecedented press conference to pressurise the CJI to assign the Loya case to a collegium bench? And if so, why?
On the morning of January 16, the Maharashtra government, represented by senior counsel Harish Salve (who is also fighting India’s case against Pakistan on Kulbhushan Jadhav in the International Court of Justice at The Hague), handed over in a sealed envelope Loya’s hospital reports and other material, to be shared only with the petitioners.
Facts first
What are the facts in the Loya case?
Following The Caravan story, The Indian Express conducted its own investigation. This is what it found: “Loya, 48, records show, died of a heart attack in Nagpur on December 1, 2014, a day after he attended the wedding and reception of the daughter of fellow judge Swapna Joshi, who is now a judge in the Bombay High Court. Significantly, two judges of the Bombay High Court, Justice Bhushan Gavai and Justice Sunil Shukre, who both went to the hospital that day and made arrangements for the transport of the body, have spoken to The Indian Express to detail the sequence of events. Both judges said there was nothing about the circumstances of the death to raise any suspicion.
“After the wedding on November 30, 2014, Loya was at the Ravi Bhavan guest house in the Civil Lines Area of Nagpur when he complained of chest pain around 4 am on December 1. Recalling the sequence of events, Justice Gavai told The Indian Express: ‘Loya was staying with fellow judges Shridhar Kulkarni and Shriram Madhusudan Modak. He experienced a health problem around 4am. (Local judge) Vijaykumar Barde and then Deputy Registrar of the Nagpur bench of the High Court Rupesh Rathi first took him to Dande Hospital (3km from the guest house).’
“When contacted, the director of the hospital, Pinak Dande, told The Indian Express: ‘He was brought to our hospital around 4.45am or 5am. We are a 24-hour trauma centre. There was a resident medical officer at that time who checked him. It’s only after the ECG was taken that we realised he needed specialised cardiac treatment which is not available with us so we advised them to go to a bigger hospital. They went to Meditrina hospital.'"
What happened next is crucial to the case.
The Meditrina hospital file on Loya says: “Immediately, resuscitation was started after reaching the hospital. Emergency treatment of DC (direct current) shocks of 200J was given multiple times. CPR (cardiopulmonary resuscitation) continued as per protocol. But in spite of all efforts, patient couldn’t be revived.”
The Indian Express story adds: “It was Meditrina where the judges arrived. Justice Gavai said, ‘I got a call from the High Court Registrar. As the seniormost and administrative Judge of the High Court bench at Nagpur, I rushed to Meditrina hospital along with fellow judge Justice Sunil Shukre. I didn’t even wait for my driver and drove to the hospital. Loya’s life unfortunately couldn’t be saved. There was absolutely nothing suspicious about the death or the events around it. The post-mortem was done at the Government Medical College and Hospital in Nagpur between 10.55am and 11.55am. No evidence of any poison or foul play was recorded in the report.’ About finding blood stains on Loya’s body, as reported by The Caravan, a senior government forensic expert said: ‘Blood is bound to spill out during post-mortem as we open all major cavities in the body. Sometimes, if small gaps remain in the sutures, blood might seep out.’”
The testimony of justices Gavai and Shurkre is obviously key. They were with judge Loya in the last few hours before his death. Those who allege murder are conspicuously silent over the testimony of the two Bombay High Court justices.
On January 16, the Nagpur police revealed it had told the Supreme Court that there was no evidence of foul play in Loya’s death. Now that the Supreme Court has Loya’s autopsy report, post-mortem report, ECG and other material facts, the case will proceed to a logical conclusion. The next hearing is to take place after a week though no specific date has been fixed by the Supreme Court bench.
Two broad sets of questions now present themselves. One, justice Arun Mishra has ordered a new bench to hear the Loya case. Will CJI Dipak Misra assign it to a bench headed by one of the four collegium judges? If so, was the purpose of the dissenting justices’ press conference aimed at achieving precisely this outcome?
Two, CJI Misra on January 16, while hearing an appeal on Bofors filed by a BJP member Ajay Agrawal, observed that third parties without direct “locus” in a case cannot file a PIL or an appeal in the Supreme Court. If that observation becomes an order at the next Bofors hearing, it could invalidate all petitions filed by third parties in the Loya case.
Is the case politically motivated? Shah, as Gujarat’s home minister in 2005, presided over a major clean-up of criminals. Sohrabuddin was one such history-sheeter. Was he killed in a fake encounter? Was Shah complicit? The Congress and its allies would like to think so. With the Lok Sabha elections just over a year away and eight state Assembly elections due in 2018, implicating Shah is high on the Opposition’s agenda.
The Loya case raises memories of the Ishrat Jahan “fake” encounter controversy that became an electoral issue in 2014. Ishrat Jahan was an LeT terrorist killed just outside Ahmedabad in 2004. The case sank into oblivion after the 2014 general election.
The Supreme Court will now have to swiftly deliver a verdict in the Loya case based on evidence not innuendo that will end all speculation, real and manufactured, and give the judge’s family the closure it seeks.
Also read: Supreme Court judges revolt: Why all Indians must feel threatened