JUDGMENT MOST FOUL :- BURIED QUESTIONS IN LOYA CASE VERDICT.

   ( Several questions regarding the death of Judge Loya will remain unanswered forever.  This judgment is the “ADM Jabalpur” moment of the modern day Supreme Court.)

Prologue.

The most disturbing event in the great epic Mahabharata is the disrobing of Draupadi which happens in the royal court of Hastinapur. The naive Yudhishthira, intoxicated with the game of dice, wagered his wife Draupadi and lost her to Kauravas. Faced with abject humiliation in the Kaurava court, Draupadi looked up to Bhisma, the patriarch, for saving her honour. Draupadi questioned the right of Yudhishtira to place a bet on her, and expected Bhisma, the conscience keeper of Hastinapur, to deliver justice. But Bhisma let her down. Without addressing the broader issues of justice and morality, he chose to go by narrow confines to law to hold that the bet of Yudhishtira was valid and proper. Failing to summon courage to listen to his conscience, Bhisma peered helplessly while Drapuadhi was being disrobed, until divine intervention saved her honour.

The recurrence of this event happens at times in modern day India, when the Supreme Court of India, the conscience keeper of our country, acts like the failed Bhisma, to helplessly watch the humiliation of constitutional values. A case on point is the recent verdict in the Judge Loya case, where Supreme Court conclusively held that there was no foul play in his death and rejected the prayer for independent probe.

The baffling procedure of fact-finding by SC

Though the Supreme Court was considering the prayer for a court-monitored investigation into the circumstances surrounding the death of Judge B.H Loya, the Court acted as if it was conducting a criminal trial as a fact finding Court of first instance; but, without observing the basic and fundamental rules of evidence and fair trial! In the beginning itself, the judgement made it clear that the Court had permitted parties to produce documents without being bound by technicalities of procedure. It actually meant that Court accepted statements which are not sworn on oath. There were no affidavits filed; no cross-examinations permitted.  The judgement is totally premised upon the statements issued by four judicial officers, and also the ‘discreet enquiry’ conducted by the Maharashtra Government, which are wholly accepted like gospel truth to  declare that Judge Loya died due to natural causes. The Supreme Court regarded the statements of judicial officers unimpeachable, and therefore no opportunity of cross-examination was afforded.  The evidence gathered by the ‘discreet enquiry’’ ought to have been tested judicially on the touchstone of contra evidence, by weighing it against the suspicious circumstances pointed out by the petitioners.  Alas, the Court did not deem it necessary to venture into such efforts. Therefore, a lot of questions still linger, without proper closure. Those buried questions, which ought to have pricked a robust judicial conscience, are detailed as below.

Why there was no proper inquest?

One of the main points urged by the petitioners to doubt the official version was that there was no proper inquest carried out on the dead body of Judge Loya in the manner provided in Section 174 of the Code of Criminal Procedure( Cr.P.C). The petitioners specifically pointed out that as per Section 174(1) Cr.P.C,  the inquest of dead body has to be performed in the presence of Executive Magistrate.  Though the police registered a case under Section 174, there was no intimation given to Executive Magistrate. Admittedly, the inquest was carried out by the police themselves, without informing the Executive Magistrate. Hence, the evidentiary value of the inquest report, which did not record any finding of bodily injuries, was called into question.

This was an important issue, as the inquest report was admittedly prepared without the presence of Executive Magistrate, resulting in violation of Section 174.  Curiously, the information to Executive Magistrate(SDM Nagpur) was given only on 2^nd February 2016, almost one year after the incident. This certainly raises the eyebrows of any reasonable person.

But, the Supreme Court dealt with this question in a very casual manner, as can be seen from paragraphs 27 to 31 of the judgment. Though several Supreme Court judgements explaining the scope of inquest are discussed, no advertence is made to the factual issue at hand, which is the failure to carry out inquest as per Section 174 and its impact.                   The judgment proceeds on the in-built assumption that the inquest report is valid. No explanation is given regarding the violation of Section 174 in carrying out the inquest. No justification is offered for belated information given to SDM Nagpur almost a year after the death of Judge Loya. The issue is conveniently buried, without any answer whatsoever, much less a convincing answer.

The curious appearance of Dr. Prashant Rathi.

Dr. Prashant Rathi is a key-person in the events. It was Prashant Rathi who identified the body of Judge Loya at the time of inquest as well as post-mortem. It was Prashant Rathi who received the body of Judge Loya after post-mortem as ‘relative’. It was on the basis of identification by Prashant Rathi that the Supreme Court holds that the identity of body on which inquest and post-mortem was performed was undisputed. But, who is Dr. Prashant Rathi? How did he come in the scene? How could he collect the body of Judge Loya as relative?

Prashant Rathi comes into picture through a convoluted route. As per the ‘discreet enquiry’ report, one Ishwar Govindlal Baheti of Latur was a family friend of Judge Loya ( The enquiry report states that there are two other persons by the name of Ishwar Baheti in Latur, and therefore the report in Caravan magazine that one Ishwar Baheti connected with RSS informed the family of the death of Loya and made arrangements for transportation of body is stated to have been based on confused identities. As per the enquiry report,Ishwar Govindlal Baheti is said to have no links with RSS). So, this Ishwar Govindlal Baheti got information from his brother Dr. Hansraj Govindlal Baheti about medical condition of Loya during wee hours of December 1^st 2014(But from whom Dr.Hansraj Baheti got information is not revealed in the enquiry report). Thereupon, Ishwar Baheti called upon his relative in Aurangabad, one Rukmesh Jakhotiya, who in turn informed Dr. Prasanth Rathi in Nagpur to give necessary assistance to Judge Loya.

Thus, it is clear that Prasanth Rathi was a total stranger having no prior acquaintance with Judge Loya. Then how did he identify the body of Judge Loya before inquest and post-mortem? How did he claim the body of Judge Loya after post-mortem as a ‘relative’? This is a very fundamental fact raising several doubts, especially in the light of the fact that the first name of Judge Loya was mistakenly recorded in inquest and post-mortem reports as “Brijmohan”  instead of  “Brijgopal”.

The petitioners had also specifically raised the contention that handing over of body to Prasanth Rathi was illegal, as he was not a relative as defined in Section 176 of Cr.P.C.

Unfortunately, the judgement does not bother to answer these issues and held that the handing over of the body to Dr Prashant Rathi cannot be faulted, without any convincing explanation (Paragraph 56). No answers were given as to how a stranger like Dr.Rathi  happened to reach the scene and identified the body. It is also pertinent to note that the initial police records do not mention anyone else except Dr.Prashant Rathi along with the body of Loya. There names of judicial officers are conspicuous by absence. Also, the statement given by Dr. Rathi to the discreet enquiry team is dated November 22, 2017, which is before the date when state government ordered discreet enquiry on November 23.  But, the SC did not deem it as a relevant fact, and chose to ignore it( See, paragraph 61).

Discrepencies in medical bill of Meditrina Hospital.

The bill issued by Meditrina Hospital on 1^st December 2014 contained charges for neurosurgery and diet consultation.  How can such charges be levied if Judge Loya was brought dead to the hospital? What was the reason for billing under the head ‘neurosurgery’, if Loya died of cardiac arrest? In this backdrop, the alternate theory forwarded by petitioners regarding head injury assumes importance. The sister of Judge Loya, Anuradha Biyani had stated that she had found blood stains on the neck and back of the shirt in the dead body. The alternate expert opinion procured by Adv.Prasanth Bhushan suggested possibility of head injury. In that backdrop , the entry regarding ‘neurosurgery’ was a circumstance requiring further probe.

The judgement acknowledged that billing for diet consultation was erroneous. But, the Court held that the issue was not regarding any medical negligence on the part of Meditrina Hospital, and closed the issue without much discussion(See, Paragraph 55). Here, the Court terribly misdirected itself. The entries in the medical bill contradicted the official version to a certain extent, and hence the issue required deeper examination. It was not a question of medical negligence on the part of hospital, but an issue of credibility of official version.  Unfortunately, the issue was foreclosed, without any satisfactory explanation.

The Legality of ‘Discreet enquiry’

‘Discreet enquiry’ is a contradiction in terms. Enquiry/investigation has to be open and transparent.  The ‘discreet enquiry’ ordered by the State Government on November 23, 2017 and completed within five days by November 28, 2017, was carried out by the Commissioner of State Intelligence Department.  There was question regarding the statutory backing of such a ‘discreet enquiry’. This ‘discreet enquiry’ was not carried out as per the provisions of the Code of Criminal Procedure. Under what provisions of law the statements of the judicial officers were taken? Which statute gives legal sanctity to such an enquiry?  The SC settled all these issues with a bald statement that executive power of the state authorized such enquiry(Paragraph 42). But can such an enquiry report without the backing of legislation be admitted as evidence in Court?  It is well-settled that investigation carried out by an officer who is not specifically authorised by statute is non-est in the eyes of law.  However, these questions were not at all addressed.

Discrepancies regarding ECG report

The official version heavily relied on the ECG report prepared in Dande Hospital for stating that Judge Loya died of natural causes. Curiously,  this ECG Report of Dande Hospital, where Loya was taken initially before Meditrina Hospital, was not produced in the Supreme Court proceedings. It may be worthwhile to recall that in the Indian Express story published on  November 27, to counter the revelation in The Caravan Magazine, a picture of the ECG report was shown. But the ECG report shown in the report carried the date November 30, 2014, which was a day before the death of Loya. Hence, this report was widely criticised in social media as inauthentic. Anyhow, the ECG Report did not form part of documents submitted in Court by Maharashtra Government.

But, the Court relied upon the records of Meditrina Hospital, which had referred to an earlier ECG Report. Thus, it was without seeing the primary document that the Supreme Court accepted conclusions of ECG report.

In this regard, it is pertinent to highlight the inconsistency in the statements of judges regarding ECG done at Dande Hospital. Judge Rathi, in his statement, categorically mentioned that the ECG in Dande hospital was not working as its nodes were broken(See, Page 73). But, the other judges stated that ECG was taken from Dande hospital. This is a glaring inconsistency, which was not given much relevance by the Supreme Court for unconvincing reasons. The Court chose to go by the statements of other judges and the records of Meditrina to hold that ECG test was performed at Dande Hospital, though the primary document was never produced before the Court for its examination( para.49)

Why the request for cross-examination was denied?

The petitioner’s request for cross-examining persons connected with the case- the doctors, judicial officers, police officers- was not taken in the right spirit by the Court. The Supreme Court treated the request with utmost hostility, as could be gathered from the seething rage contained in the words of judgement. The petitioner’s were seen as launching a “frontal assault” on judiciary. “The petitioners cannot assert as of right that they should be allowed to cross-examine a host of persons including the doctors and judicial officers.”- stated the Court categorically.  And the reason for this was a perceived motive of the petitioners to malign judiciary.

By casting unfounded aspersions on the judicial officers who had accompanied Judge Loya, the petitioners have revealed the real motive of these proceedings which is to bring the judiciary into disrepute on the basis of scurrilous allegations. We find no basis or justification to allow the request for cross-examination(emphasis supplied, para.63)- this was the purported reason.  It was further stated as follows :- We must lean in favour of the version of the four judicial officers unless strong and indisputable circumstances are shown to doubt their credibility. This would be in the larger public interest, to uphold the independence and integrity of the institution,(emphasis supplied, para 58). Therefore, the primary concern of the court was to preserve its image, than to arrive at truth.

The petitioners raised reasonable questions about the statements of judges, which arise in the mind of any prudent person, such as :-

·         The unusual fact that Judge Loya’s name is not mentioned anywhere in the register of Ravi Bhavan, and the fact that none of the judges mentioned the room number in which they stayed in their statements.

·         The unusualness in three judges sharing a single room despite in Ravi Bhavan   Guest House, despite availability of other rooms.

·         The unusualness in the judges who shared room with Loya calling another judge stationed in Nagpur when Judge Loya experienced chest pain, instead of contacting emergency care from the reception of Guest House for urgent medical attention.

·         The unusualness in Judge Loya being clad in shirt, jeans and black-belt at the time of death, though it is stated that he experienced chest pain while at sleep.

·         The unusualness in going to Dande Hospital at first, which is not a speciality hospital, despite availability of other specialist hospitals nearby.

·         The unusualness in Judge Loya’s first name being wrongly entered in medical records, despite the claim of judges accompanying him.

·         The inconsistency in the statements of Judge Rathi and other judges regarding ECG taken from Dande hospital.

·         The unusual fact that none of the judges are mentioned in the police records as persons accompanying Judge Loya

These are probable doubts. The SC strived on its own to explain all these doubts through a strenuous point-by-point rebuttal made in paragraphs 43 to 62. However, it is not the job of the Court to explain inconsistencies and doubts. The explanations should voluntarily come from the mouth of those who gave the statements. It is not for the Court to iron out the inconsistencies and fill up the blanks. In normal course, these doubts ought to have been sufficient to order investigation, unless the Court itself decides to play an inquisitorial role by conducting inquiry itself, in which event it should have permitted cross-examination and adducing of contra evidence.

It is very unfortunate that the request for cross-examination antagonized the Court. The Court was even reluctant to direct filing of sworn affidavits.  Regarding the importance of cross-examination the Supreme Court itself has observed that cross – examination is one of the most useful and efficacious means of discovering the truth and failure to provide an opportunity will no doubt result in grave prejudice and failure of justice. To arrive at the truth, its veracity should be judged and for that purpose cross - examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination - in - chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected(Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT) Delhi, (2012) 2 SCC 584).

It is not unusual for judges to be cross-examined. In criminal trials, Magistrates who record statements and confessions under Section 164 Cr.P.C are generally put to cross-examination. Therefore, the resistance of SC to the demand appeared highly unusual. Without affording any such opportunity, the Court entered unilateral findings that the statements of judicial officers have a “ring of truth” and that “they had nothing to conceal and no axe to grind”.

Misplaced concerns about petitioners’ bona-fides.

The judgement was highly critical of the conduct of the petitioners’ lawyers, and doubted the bona-fides of the petitioners. “The petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions “ “The conduct of the petitioners and the interveners scandalises the process of the court and prima facie constitutes criminal contempt.” “Even the judges of this Bench hearing the present proceedings, have not been spared from this vituperative assault on the judiciary”-these were some of the observations of the Court.

It is true that the hearings often witnessed charged exchanges between lawyers, often stepping out of permissible limits. But, that was not a one-way traffic on the part of petitioners’ lawyers alone. It is rather strange that the Court, which was quick to admonish the conduct of petitioners’ lawyers, overlooked some glaring ethical short-comings on the part of respondents’ lawyers. Dushyant Dave had pointed out in court that Harish Salve cannot be permitted to appear for State of Maharashtra, as he had appeared for Rubabbuddin Sheikh( the brother of deceased Sohrabuddin Sheikh) and Amit Shah in different proceedings arising out of the same case( It was pointed out in an earlier article in Live Law as well).  There was some seeming conflict of interest on the part of Pallav Sisodia, the counsel for one of the petitioners,  as he had appeared for Amit Shah in an earlier proceeding connected with Sohrabuddin-Tulisram encounter case. (The strange manner in which Pallav Sisodia turned hostile to his own petition by giving up the demand for probe was commented upon by an article in Live Law). But, the SC did not deem it necessary to advert to such glaring ethical issues. Justice Chandrachud remarked during a hearing day that those issues are better left to the individual conscience of lawyers.

At the same time, the Court admonished Prashant Bhushan for making RTI applications to forensic experts seeking opinion on Judge Loya’s post-mortem report, on the ground that he behaved without “objectivity” and  has gone to the length of personally collecting evidence to somehow bolster the case. Bhushan’s request for recusal of Justice Khanwilkar and Justice Chandrachud from the bench on the ground of their acquaintance with judicial officers who gave statements irked the Court.  Dushyant Dave’s references to the manner in which Administrative Committee of Bombay High Court violated Supreme Court order by transferring  Judge Utpat, predecessor of Judge Loya, and also to the proceedings by which a criminal case against Maharashtra CM Devendra Fadnavis was quashed by a bench headed by Justice B.R Gavai (who had given interview to Indian Express on November 27 ruling out foul play in Loya’s death), etc also invited the wrath of the bench that “unfounded aspersions have been cast on the judges of the Bombay High Court”.  Without caring to assess the merits of the allegations, the Court shut down the issue on the ground that allegations against judges were raised. On the other hand, the transgressions of other lawyers were let off saying that it was a matter of “individual conscience”.  In any case, even if the conduct of petitioners’ lawyers was not proper, is the Court justified in citing it as a reason to throw out the petitions obfuscating the merits of the underlying matter?

Also, the Court had once remarked that the case was “serious” and had expressed faith in the bona fides of the petitioners. If a judge in district judiciary has died and there are several media reports seeking an investigation, urging us to look at it and intervene, it becomes serious enough for us to examine the records, but we can’t act only on the basis of media reports.” , Justice Chandrachud, remarked once regarding the very same case. On the hearing held on February 19, the CJI Dipak Misra observed that the locus and bona fides of the petitioners are not being questioned. Therefore, the contrary findings  in the judgement are surprising.

 Anyhow, the conclusive finding entered by the Court that Judge Loya died of natural causes does not inspire confidence. The judgement lacks cohesion and objectivity, and is largely based on an unverified trust on the statements of judicial officers and the ‘discreet enquiry’ by Maharashtra Government. The Court ought to have seen that the petitioners’ were praying for an independent investigation, and for ordering investigation, it is enough to raise reasonable suspicion of commission of offence. There is no need to establish the offence with all materials for seeking investigation.  But all the questions were shut down with the “discreet enquiry report” produced by the state government, which was treated as inviolable truth. The judgement, with its constant invocation of the theory that judicial officers will not make false statements, fails to satisfy an inquisitive and discerning mind.  Several questions regarding the death of Judge Loya will remain unanswered forever. The conclusive findings are arrived at without following any fair process. The Court ought to have borne in mind that it was closing the issue forever by its conclusive findings.  Therefore, it was ethically incumbent on the Court to hear the views of all stake-holders, like the family members of Judge Loya, reporters of Caravan Magazine, etc before putting a permanent quietus to the issue. But such considerations of fairness and transparency were totally ignored by the SC.    This judgment, regretfully, is the ADM Jabalpur moment of the modern day Supreme Court.

Epilogue: Hollow Homilies

Returning to Mahabharata, the story goes that the patriarch Bhishma was confined to a bed of arrows towards the end, pained by the sight of warring Pandavas and Kauravas. After Pandavas emerged victorious in the war, they went to Bhisma. Then, Bhishma gave them advice regarding ruling with justice and morality. On hearing this, Drapuadi burst into laughter, probably reminded by the inaction of Bhisma to stop her humiliation.

The judgement is replete with grand homilies on sanctity of judicial process. At one instance it is observed:- The judges of the district judiciary are vulnerable to wanton attacks on their independence. This court would be failing in its duty if it were not to stand by them. But this statement is made in the context of protecting the judicial officers who gave statements from examination. This sense of protection however did not find resonance while casually burying the questions pertaining to death of Judge Loya, who was also a subordinate judiciary.

Statements like “Courts protect the rule of law”, “There are higher values which guide our conduct”. “The credibility of the judicial process is based on its moral authority” etc can also be found in the judgment.  But, on taking a full stock of the matter, these statements sound as hollow homilies.

The homilies of the Supreme Court regarding judicial independence and sanctity of judicial process might induce derisive chuckles in people, if justice is not seen to be done.

Published in Live Law on 22.04.2018

THE IGNOBLE WAYS OF LEGAL PROFESSION

To salvage the lost nobility of legal profession, it is necessary to send a strong message by throwing out the goons in gowns from the profession.

Lawyers often resort to the self-congratulatory pat that they are in the ‘noble-profession’.     I distinctly remember my enrolment ceremony about seven years ago, when one of the then members of the Bar Council congratulated the young lawyers assembled there for choosing the ‘noble profession’. Justice J. Chelameswar, the then Chief Justice of the High Court of Kerala, while delivering the presidential address in the enrolment ceremony, however clarified that law cannot claim any exceptional nobility over other professions, and reminded that it can remain noble only if it is carried out as per the ideals of the Constitution.  These words swelled my heart, and I felt reassured about my choice of profession.

The self-image of being the protectors of rule of law is necessary for lawyers to maintain their moral high ground; lest, lawyers will be regarded as mere mercenaries for their clients. At times, lawyers might fall short of keeping up with constitutional ideals, owing to personal short-comings and systemic constraints, and the legal fraternity feels apologetic about such failures.  Despite such occasional failures, lawyers still pride in being part of a noble profession, because they are striving for upholding rule of law to the best of their abilities.

But can we feel that sense of pride and self-esteem about our profession anymore, in the light of recent incidents? Of late, lawyers are in news for all wrong reasons. Lawyers being conscious participants in derailing the process of law by use of might of fist and numbers have become a disturbing and recurring trend. The legal profession hit its all-time low with the recent incident of some lawyers of Jammu Bar Association resorting to use of force and violence to prevent the filing of charge sheet in the Kathua rape-murder case of minor girl.  The Crime Branch, which was carrying out the investigation into the rape-murder case under the monitoring of the Jammu & Kashmir High Court, was caught unawares when lawyers unleashed violence to block filing of charge-sheet. The lawyers, who are reportedly supporters of Hindu Ekta Munch which alleges that the investigation is not fair, created unruly scenes in the Court premises and called for a ‘bandh’ to protest the arrests. Deepika Singh, the lawyer representing the victim-girl’s family stated that she was facing threats from the Bar Association. She complained that the Bar Association had boycotted her for taking up the case against the accused in Kathua rape-murder case.

 The images of lawyers going on a rampage, with some of them carrying the National Flag, to protest the arrest of accused brought great disrepute to the legal profession. So much so, the Supreme Court was forced to take suo moto cognizance of the agitation by lawyers, upon mentioning by certain conscientious members of the fraternity, who are now becoming a dwindling tribe.  Obstruction of process of law and delivery of justice, and that too by lawyers cannot be condoned and is unethical. Access to justice cannot be impeded by lawyers, the Supreme Court observed, while issuing notices to J&K Bar Council and Bar Association. It is highly regrettable that the Apex Court has been forced to make such observations on the character and conduct of members of legal fraternity.

 The violence unleashed by lawyers of Jammu bar is a déjà vu moment of a similarly shocking incident which happened in Patiala House Court Complex, New Delhi, during February 2016. There, self-styled ‘patriotic’ lawyers decided to take law unto their hands and assaulted Kanhaiya Kumar while he was brought before the Magistrate’s Court in connection with charges of sedition. The situation was so much out-of-control that the Supreme Court had to intervene by constituting a committee to oversee the security arrangements in the Patiala House Court complex. But even the SC-appointed committee could not save themselves from the abuses and blows showered by the lawyer-gang which behaved like a bunch of street goons. The Committee Report is vivid in its details of violence, and is powerful enough to shock anyone with an iota of sense of justice present in mind.

The common feature in both these incidents is the invocation of nationalistic symbols by lawyer-thugs to justify violence. In Patiala House, the lawyer-thugs were shouting ‘Bharat Mata Ki Jai’ while attacking Kanhaiya Kumar. Some lawyers were caught bragging in a sting-video that they beat up Kanhaiya Kumar till he was forced to utter ‘Bharat mata ki jai’. The lawyers in Jammu were seen carrying the tricolour during their aggressive protest march against the arrest of accused. The unruly protestors feel that their demands are in consonance with the majoritarian-nationalistic sentiments. They know that their antics will appeal to the newly emerged class of patriots, who harbour a distorted sense of patriotism tailored by the current dominant socio-political forces. Hence these lawyer-thugs dare to use patriotic symbols with impunity. They do not feel that they are doing any wrong; much worse, they feel proud about their doings.  This is a highly dangerous signal, which should send waves of shudder down the spines of all those who believe in constitutional morality. This means skewed patriotic sentiments of an unruly majority can undermine the due process envisaged by Constitution. How many times in the history of India have we witnessed the sight of National Flag being waved for shielding the arrest of those charged with rape-murder of a minor girl? 

To add a caveat, all those who are named as accused in the charge-sheet are entitled to the presumption of innocence, until their guilt is proven after trial. They are entitled to point out defects in investigation. They are entitled to demand probe by another agency, if they feel investigation is not fair. But, there is a process established by law for seeking all such demands. Our legal system is robust and capable enough to consider such demands on its merits. When lawyers themselves undermine due process of law to achieve their vested ends, it sends a wrong message to the society. How can the common man be expected to repose trust in legal process, when learned members of the bar themselves display lack of faith in our own legal system?

It is heartening that the Supreme Court has chosen to intervene in the issue.                       But, let us hope that the righteous indignation shown by the Supreme Court will not fizzle out in due course, as it happened with Patiala House incident. Almost two years down the line, the Supreme Court, in an unfortunate decision, chose to refrain from proceeding against the unruly lawyers who were responsible for the terror situation by Patiala House Court. The Supreme Court closed the case, reportedly observing ‘we don’t want to flog a dead horse’. Let us hope that the Jammu-Kathua incident also does not end up as a dead horse some years down the line. To salvage the lost nobility of legal profession, it is necessary to send a strong message by throwing out the goons in gowns from the profession.   If the images of lawyers indulging in strong-arm tactics in street do not appear as sickening and ignoble to you, then kindly refrain from using the self-congratulatory cliché  ‘law is a noble profession’ anymore!

Published in Live Law on 15.04.2018

CONSTITUTIONAL EMBARRASSMENT WHEN SC STAYS AN ORDINANCE SIGNED BY EX-CJI ON GROUND THAT IT NULLIFIES COURT ORDERS.

“When boundaries between judiciary and executive get permeable facilitating easy switch from one role to another, such constitutional embarrassments are bound to happen”.  

It is quite unusual for a law to be made to get over a particular judgment by a Court. It is further unusual if the law is not one passed by the legislature, but is made by the government through the ‘ordinance route’ .It gets more strange when the ordinance, which is specifically intended to nullify Supreme Court & High Court judgements, is approved by a former Chief Justice of India on holding the post of the Governor of State. And the plot gets thicker, when the Supreme Court stays the Ordinance on the ground that it blatantly seeks to nullify the binding effect of the order passed by the Supreme Court.

This bizarre situation is created by Kerala Professional Colleges(Regularization of Admission in Medical Colleges) Ordinance 2017[Ordinance No.21 of 2017]. To cut a long story short, this Ordinance is promulgated by Kerala Government to regularize the admissions to private medical colleges, which were cancelled by the High Court and the Supreme Court as illegal and irregular. The Ordinance is wrought with apparent legal and constitutional infirmities, which were pointed out by Live Law earlier.  The present Governor of Kerala is Justice P. Sathasivam, the former Chief Justice of India, and Live Law had earlier commented about the irony of a former Chief Justice of India signing an Ordinance to nullify a Supreme Court order. Now, the Medical Council of India has directly approached  Supreme Court challenging the Ordinance.

The obvious beneficiaries of the Ordinance are two self-financing medical colleges :- Kannur Medical College, run by a private trust, Prestige Educational Trust and Karuna Medical College, run by a private trust namely Safe Development Alms Trust.  Admissions made to these colleges during 2016-17 were cancelled by the Admission Supervisory Committee finding  that the admissions were not made through online process as per binding directions. It was also found that admissions were made without publishing approved prospectus in college website. Though the Colleges challenged the Committee’s order in High Court of Kerala,  the  Court did not accept. As per a detailed  judgment dated 28.10.2016 the laxity of the institutions in following a transparent and non-arbitrary admission process was deprecated in the strongest possible words by High Court and cost of Rupees One lakh each was imposed on both the colleges.

During March 2017, Supreme Court also confirmed the cancellation of admission. The appeals by Colleges were dismissed by bench comprising Justice Arun Mishra and Justice Amitava Roy, and the plea that cancellation would cause hardship to students was specifically rejected noting that it would amount to creating a bad precedent. The review petitions filed by students also got dismissed subsequently.

After that, the Ordinance was promulgated during October 2017, enabling Government to regularize admissions in any medical college during the academic year 2016-17, “ignoring any judgment, decree, order or proceedings of any court or the Admission Supervisory Committee” . The management of the colleges seeking regularization should make an application to that effect, and the students have to pay Rupees Three Lakhs as ‘regularization fee’.

Twist after the Ordinance

But things did not go smoothly even after the Ordinance. A twist happened, when some students of Kannur Medical College, whose admissions had got cancelled, approached the  Admission Supervisory Committee seeking return of the fee remitted. The Committee found that the College had collected more than permissible fee from the students, between Rs.22 lakhs to 45 lakhs, which has to be treated as ‘capitation fee’, and issued a letter to the Director of Medical Education on 19.01.2018 for further action. 

It was a condition in the Ordinance that admissions will not be regularized if they are found to be made on payment of ‘capitation fee’. Therefore, B. Srinivas, Principal Secretary(Health), the Competent Authority designated under the Ordinance to consider applications for regularization, refused to regularize the admissions made on payment of ‘capitation fee’. The Addl.Chief Secretary(Health) Rajeev Sadanandan reported in concurrence with the Competent Authority, recommending action against Kannur Medical College. However, the Cabinet sought for another report from the Law Secretary B.G Harindranath. As per reports in Deccan Chronicle,  the Law Secretary dismissed the findings of the Committee, Competent Authority and Addl.Chief Secretary(Health), and held that the findings regarding payment of capitation fee was made without any material. Hence, the Law Secretary recommended the regularization of admissions. The cabinet chose to adopt the report of the Law Secretary and regularized the admissions.

Challenge to Ordinance by MCI

Meanwhile, the Medical Council of India(MCI), got wind of the matter, and challenged the Ordinance before the Supreme Court. MCI contended that the Ordinance is a piece of colourable legislation attempting to override judicial orders. It is also contended that the Ordinance has resulted in compromising merit in admissions. ‘Whether illegal admissions made by a medical college and the same having been invalidated by the Courts be legalized by promulgating an Ordinance’-   MCI asked in its petition.

The bench of Supreme Court consisting of Justice Arun Mishra(who headed the earlier bench which dismissed the colleges’ appeal) and Justice U.U Lalit did not take it lightly to the Ordinance. The Court observed that the cancellation of admissions was approved by it after finding that they were not given in accordance with law. “Thus, prima facie it was not open to sit over the judgment and validate those very admissions and to venture into regularising them. Prima facie it was not open to declare this Court’s order as void or ineffective as was sought to be done by way of ordnance”, observed the bench. While staying the Ordinance, the Court also made it clear that no student will be entitled to reap any benefit of any action taken and they shall not be permitted to attend the college or the classes or continue in medical colleges on the basis of the Ordinance.

Governor/Ex-CJI in tight spot

Just a day before the Supreme Court order, the Kerala Legislative Assembly had hastily passed the Bill to convert the Ordinance into legislation, in a rare show of unity between the ruling front and opposition.  Reportedly, the counsel appearing for State of Kerala submitted before the Court that the Bill had been passed, probably hoping to render the MCI petition infructuous. However, it turned out to be a furtive move, as the Bench specifically enquired whether the Bill has been signed by the Governor and notified.  Since that stage was yet to be over, the Court proceeded to consider the matter, ignoring the fact of passing of Bill by the Assembly.

Anyhow, this has now put the Governor/Ex-CJI in a tight spot. All eyes will be on the Governor to see whether he will now sign the Bill.  To sign the Bill signifies open defiance against the institution of which the Justice Sathasivam was the head a couple of years ago. But constitutional constraints attached to the Governor post might compel him to sign it.

This sort of an awkward situation would never have been envisaged by the Constitutional founders.  But, when boundaries between judiciary and executive get permeable facilitating easy switch from one role to another, such constitutional embarrassments are bound to happen.   Occupational hazards of an ex-CJI being the Governor!

Published in Live Law on 06.04.2018

THE SELECTIVE BATTLES OF THE BAR COUNCIL OF INDIA.

THE SELECTIVE BATTLES OF THE BAR COUNCIL OF INDIA.

The disciplinary actions initiated by BCI of late have given the impression that it is selective and partisan in the battles it wants to wage.

The Bar Council of India, which ceased to be truly representative long ago because to the failure to hold due elections in time, recently surprised many with a resolution. The resolution, stated to have been taken on March 18, but announced to the world on March 31 in a press conference held by the Chairman of the ad-hoc Council Senior Advocate Manan Kumar Mishra, , states that legislators who participate in removal process of a judge of a High Court or Supreme Court should not be allowed to practice before that Court/Judge. The exact wordings of the operative portion of the resolution is “the majority view of the Bar Council of India is that once process of removal of a Judge of a High Court or Supreme Court, the advocates who are MPs should not be allowed to appear before that Court/Judge”.  As is evident, there is something semantically incorrect and incomplete about resolution, which indicates that the BCI must have made some glaring omissions while taking the resolution. Perhaps, the omissions are indicative of the cavalier manner in which BCI takes important decisions.

The resolution is to be analyzed in the backdrop of the move of some MPs to pilot an impeachment motion against the present CJI Justice Dipak Misra.  On March 27, news regarding the impeachment motion floated by Indian National Congress appeared. Senior lawyers Kapil Sibal, A.M Singhvi, Salman Kurshid, Vivek Tankha and K.T.S Tulsi are also MPs of Congress party in the parliament. The resolution will   affect the practice of these lawyers if they choose to support the proposed impeachment motion. Therefore, this resolution in effect operates as a deterrent on these lawyers to associate with the impeachment proceedings. It is curious why the resolution, which is stated to have been taken on March 18, was announced on March 31, only after the news of impeachment motion came.

Flaws in the resolution.

The BCI states that the resolution is taken while considering the plea of Ashwini Upadhyaya that legislators should be barred from practicing law. He has filed a petition in the SC contending that permitting lawyers to become legislators will lead to conflict of interest. The BCI formed a sub-committee to examine the issue.  The sub-committee expressed the opinion that legislators cannot be barred from practicing law, with a lone dissent. The sub-committee also recommended that BCI may consider framing of rules barring advocates who are also MPs from appearing before Judge/Court against whom motion for removal under the Judges(Inquiry) Act has been admitted either by the Speaker of the Lok Sabha or Chairman of Rajya Sabha.

The BCI resolution states that ‘the Council accepts the report submitted by the committee except the part relating to removal proceedings of judges before parliament’(emphasis supplied). Now, this is a very confusing statement. This conveys that the BCI is adopting the position that legislators should not be barred from practicing law. However, what is meant by the qualification in the acceptance made in the statement ‘except the part relating to removal proceedings of judges before parliament’? If the BCI is not accepting the sub-committee recommendation regarding the part relating to removal proceedings of judges, why has it chosen to resolve in this manner?

The resolution fails in intelligibly conveying the reason for its intention to restrain lawyers who are MPs from appearing before judges who are facing impeachment proceedings in parliament.  So long as the BCI is agreeable to the major premise of lawyers being legislators, it is not possible to locate any rational basis for its objection regarding lawyer-legislators appearing before judges who are facing impeachment proceedings. Either it should resolve to bar legislators from being lawyers’ altogether, or should state that such barring of law practice is not possible. When the BCI permits lawyers from being legislators, it cannot selectively state that lawyers should not appear in courts in which judges are facing impeachment proceedings. So long as a lawyer remains in the rolls of the Council, she is entitled to practice in all courts all over the country by virtue of Section 30 of Advocates Act 1961.  The BCI cannot impose fetters on the statutory right to appear so long as the lawyer remains on rolls. That would amount to interference with the professional autonomy of a lawyer. The statutory right of an advocate under Section 30 cannot be undermined through such a strangely and confusingly worded resolution, which does not speak of the reasons.

How can BCI curb parliamentary privileges?

Participating in a parliamentary process is the duty of a representative occupying seat in the house.  Impeachment is a parliamentary process, carried out in accordance with Constitutional provisions. A legislator has to be given full freedom to take an uninfluenced decision in the process. A legislator should not be presented with an ‘either-or’ situation while participating in the impeachment process. The resolution tends to deter legislators from freely exercising their parliamentary privileges, due to threat of curbs on their professional freedom as lawyers.

Now, if the BCI has issue with practising lawyers occupying office of legislators, let that be dealt in its entirety. When BCI skirts that issue, it cannot control the manner in which legislators, who also happen to be lawyers, exercise their parliamentary privileges.   This is a clear instance of BCI overstepping its jurisdictional domain, by taking a resolution in a manner which has the effect of curbing the parliamentary privileges of legislators, who also happen to be lawyers.

Resolution in excess of powers under Advocates Act.

The BCI is a creature of the Advocates Act 1961. Therefore, it has to act within the confines of the statute which created it.  The Act does not give any powers to the BCI to place fetters on the right to practise of advocates who are not found liable to be removed from rolls. So long as a person continues to be an advocate, it is absolutely within her powers and discretion to decide upon the courts and tribunals in which she can appear.   

If the BCI feels that a lawyer-legislator appearing before a judge facing impeachment proceedings can create conflict of interest, it is not for the BCI to decide upon the propriety of the issue. It is for the concerned judge to make a decision of recusal. As per long standing conventions of legal practise, it is the judge who decides whether to recuse from hearing a case in the event of possible doubt of bias. Recusal is an absolute judicial prerogative. That is a matter which is left to the individual conscience of the judge.

The BCI cannot act on a surmise that there will be conflict of interest if lawyer-legislators make appearance before judge facing impeachment motion. There is no tradition of a lawyers’ body deciding as to which all lawyers should desist from appearing in a case.

Strokes of confusion

Throughout the resolution, the wording used is ‘Court/judge’. Is the BCI intending to state that a lawyer-legislator should not appear in a Court wholly, when a judge of that Court is facing impeachment motion? That would mean that lawyers like Kapil Sibal, A.M Singhvi, Vivek Tankha, K T S Tulsi etc should stop their practise in Supreme Court completely, if the impeachment motion against CJI Misra gets admitted in the Parliament.  The confusing use of strokes in the wordings ‘Court/judge’ has created a sweeping ban on the right to practise of lawyers. If only the BCI had shown more application of mind while drafting the resolution! Is that too much to expect from an apex body of lawyers?

Selective battles of BCI.

The disciplinary actions initiated by BCI of late have given the impression that it is selective and partisan in the battles it wants to wage. During October 2017, the BCI had issued a show cause notice to Dushyant Dave, Senior Advocate, for his open criticism that the SC collegium had succumbed to executive pressure while arriving at the decision to transfer Justice Jayant Patel, Judge of High Court of Karnataka.  The show-cause notice and the following press release by the BCI were bizarrely worded, as the present resolution,  belying a knee-jerk response in a manner not behoving well for a body claiming to be representing advocates. It is important to remember that the BCI does not have any power to initiate disciplinary proceedings.The authority to initiate disciplinary proceeding is the Disciplinary Committee of the concerned State Bar Council and not the BCI. 

Again, during January 2018, the BCI issued another notice to Dushyant Dave, for his comments in the court during the hearing of case relating to death of Judge Loya. During the hearing, Dave had raised issues of conflict of interest and impropriety by senior lawyers Harish Salve and Pallav Sisodia.  Dave had contended that these lawyers should not be permitted to appear in the Judge Loya case as they had represented adversarial interests in previous and related proceedings. Justice Chandrachud, a member of the bench hearing the matter, remarked that it was a matter of conscience of the particular lawyer to decide upon the issue of impropriety.

The BCI however resolved to initiate proceedings against Dave on the ground that his comments amounted to misconduct. However, the proceedings against Dave were later stayed by the High Court of Delhi. It is rather surprising that the BCI did not find it necessary to examine the issue of impropriety raised by Dave. Instead, it chose to attempt to shoot the messenger, so as to bury uncomfortable questions.

The selective approach of the BCI is evident in the present resolution as well.  Why should lawyers be proceeded against for raising issues against the bench? It is for the Parliament to decide whether there is any merit in the impeachment motion. It is not easy for an impeachment motion to pass the muster, as the level of scrutiny is very high. Before such a decision is taken, why should the BCI come up with such a resolution, which can act as a pressure on the lawyers to withdraw from the impeachment motion?

Care-taker Council exceeding mandate.

Yet another important fact to be borne in mind is that the present Council is akin to a ‘caretaker government’. The term of the present Council had expired long ago, and it is continuing in office only on default to hold timely elections. Now that the elections to the State Bar Councils have been conducted as per directives of the Supreme Court, the role of the present Council is that of a mere ‘care-taker’. So, in the interests of propriety, it ought to refrain from taking crucial policy decisions, since it is not at present a representative body in the true sense of the word.

But, the present Council seems to be oblivious of all such norms of propriety, and is waging selective battles by exceeding its mandate and powers. Such instances make one wonder whether the BCI is acting to undermine its objective to safeguard the rights, privileges and interests of advocates.

Published in Live Law on 01.04.2017