Back in 2018, Gautam Bhatia wrote-
The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions
Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack.
He had attended the wedding of the daughter of a colleague and was staying in a Government rest-house along with four other judges. He had a heart-attack. His colleagues took him to a hospital, and then another hospital. Sadly he died. Did his t judicial colleagues kill him? Had they previously sodomised him? Were they taking drugs? Was this a case of 'chemsex' gone wrong?
No. The guy had a heart attack. Judges don't sodomise each other. They don't kill each other. This was and is obvious to all.
In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes.
The Caravan magazine is a piece of shit.
There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated.
Because the Indian legal system is full of shitheads.
A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.”
Judges don't kill each other. In India, hitmen are cheap.
The tangled history of the Sohrabuddin trial
a Muslim gangster was killed by the police. It is obvious that this was an 'encounter killing'. The Congress governement of the time tried to frame Amit Shah, the then Home Minister of Gujarat, for ordering the killing. Naturally, this greatly increased the popularity of Shah who came to be seen as a protector of Hindus from Muslim gangsters. The fact that Sohrabuddin's wife and a Hindu aide of his were also killed, showed Shah's commitment to female empowerment and secular values.
(including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court’s decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya’s death itself, are all issues that have been debated elsewhere, and will continue to be debated.
When UPA was in power, the central government tried to jail BJP Ministers. Then the BJP came to power. The misuse of the judiciary for political purposes was somewhat curbed. Why? The thing backfires. Take the case of a Hindu nun accused of riding around on a 'gold motorcycle' inciting terrorist violence against Mulsims. This lady was sent to jail but nobody believed she was guilty. Thus, she was able to defeat a senior Congress leader in his own pocket borough and thus get into Parliament. She was a bit batty and the BJP did not give her a ticket in the next general election.
I do not intend to address any of them here.
Because the thing was a pile of dog shit. The allegation was that Loya had been killed because he refused a big bribe from the Chief Justice of the High Court. This is mad. A lucrative case will be transferred to a pliant judge who will kickback a major portion of the bribe money.
Nor do I intend to critique the substance of the Supreme Court’s judgment from a criminal law perspective – that too has been done elsewhere.
by a pile of dog shit.
I will also not critique the Court’s withering attack on the motivations of the PIL-petitioners, and on politically-motivated PILs in general – an attack that is justified in principle, but one that seems particularly jarring in view of the many absurd and politically-motivated PILs the Court indulges on a regular basis, including but not limited to the PIL for making the national anthem compulsory in cinema halls (which the Court entertained through multiple hearings for over a year).
The Bench was foolish enough to admit PILs on the basis of Articles 32 and 226 with the result that a lot of judicial time has been wasted. The bigger problem is that the Bench has no real doctrine of political question. It is usurping Legislative and Executive authority. However, it is always willing to overrule itself. Thus the upshot is just more delay and waste of judicial time. As many have observed 'the punishment is the process'.
However, what I do want to address is the Supreme Court’s approach to this case,
It was a good one. It put an end to a nuisance. Had it not done so, anytime a cat dies, you can have a PIL accusing Rahul Gandhi of buggering it to death.
and the larger ramifications for its role as a constitutional court.
There are none.
The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural.
Because it was. Judges don't kill judges though we can't rule out their having buggered my neighbour's cat to death. The odd thing is I still sometimes see the cat.
The petitioners argued that certain facts had come to light
none had. It is usual when the man of the house dies for the distraught widow to claim black magic was used against him or else he that there was some gigantic conspiracy of a criminal nature.
that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation.
Why not an investigation into the supposed buggering to death, by Rahul Gandhi, of my neighbour's cat?
In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out
i.e. they discovered the sister or the widow or some such person, was distraught when she blurted out some nonsense to a 'reporter' from the Caravan magazine. Her son clarified that the father had died of natural causes. This wasn't a case of homosexual S&M hijinks gone wrong. Nor was there some criminal conspiracy with political overtones. Daddy wasn't taking it up the arse. Nor was he so stupid as to refuse a nice bribe offered by a superior. It is another matter that an honest judge can recuse himself or otherwise get a lucrative case handed to some more mercenary colleague.
– argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan’s stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the “say” of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.
The Bench took action because it is bad for the judiciary if the idea gains grounds that judges kill their colleagues if they refuse to take a bribe.
The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya’s death; and on the other side, there were other documents (the “discreet enquiry” report, contrary medical reports etc.) that sought to rebut or explain away these doubts.
My blogpost highlights the fact that my neighbour's cat may have been buggered to death by Rahul Gandhi. Should the Bench rule on this matter? Yes! It should waste not just most but all of its time.
Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners’ case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions.
It could have fined the petitioners from bringing them a bag of dog shit.
This approach would have involved the Court expressing no opinion on the cause of Judge Loya’s death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.
Why is the Bench refusing to affirm that there is insufficient evidence to charge Rahul Gandhi with buggering my neighbour's cat to death?
However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence.
The Bench decides what is evidence. In this case, it came to the conclusion that ' Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, 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. Judicial review is a potent weapon to preserve the rule of law. However, here we have been confronted with a spate of scurrilous allegations. Absent any tittle of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. 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.'
The judgment, therefore, reads
like a cry of anguish that senior advocates have made a vituperative attack on the judiciary.
'We must in this context record what we have heard during the course of the submissions. Mr Dave has urged that (i) he wants to cross-examine the judges; and (ii) he does not believe the judicial officers. Aspersions have been cast on the Administrative Committee of the Bombay High Court. This court has been called upon to issue a notice of contempt to the judges on the Committee at the relevant time. Ms Jaising has joined the fray by requesting that this court to issue contempt notices to the Administrative Committee of the Bombay High Court. Junior counsel appearing with Mr Giri went to the extent of urging that the judicial officers whose statements were recorded during the discreet inquiry are suspect. Even the judges of this Bench hearing the present proceedings, have not been spared from this vituperative assault on the judiciary. Mr Prashant Bhushan argued that because two of the judges constituting the present Bench (Justice AM Khanwilkar and Justice DY Chandrachud) were judges of the Bombay High Court, they may have known the judicial officers who have submitted statements or Justice Bhushan Gavai and Justice SB Shukre. If this were to be the test, it is rather ironical that the petitioners had instituted proceedings before the Bombay High Court each of whose judges were expected to be faced with the same situation. We informed Mr Bhushan that a decision as to whether a judge should hear a case is a matter of conscience for the judge. There is absolutely no ground or basis to recuse. Judges of the High Court hear intra court appeals against orders of their own colleagues. References are made to larger Benches when there are differences of view. Judges of the Supreme Court hear appeals arising from judgments rendered by judges of the High Courts in which they served, either as judges or on appointments as Chief Justices. Maintaining institutional civilities between or towards judges is distinct from the fiercely independent role of the judge as adjudicator. We emphatically clarify that on the well-settled parameters which hold the field, there is no reason for any member of the present Bench to recuse from the hearing. While it is simple for a judge faced with these kinds of wanton attacks to withdraw from a case, doing so would amount to an abdication of duty. There are higher values which guide our conduct. Though Mr Bhushan ultimately made it clear that he is not filing an application for recusal – and none has been filed – we have recorded what transpired to express our sense of anguish at the manner in which these proceedings have been conducted. Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt. However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law. We rest in the hope that the Bar of the nation is resilient to withstand such attempts on the judiciary. The judiciary must continue to perform its duty even if it is not to be palatable to some. The strength of the judicial process lies not in the fear of a coercive law of contempt. The credibility of the judicial process is based on its moral authority. It is with that firm belief that we have not invoked the jurisdiction in contempt.'
less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing.
Bhatia is lying. The Bench says this entire case is fabricated to scandalise the court and undermine juridical independence. Those involved are guilty of criminal contempt. The Bench magnanimously refrains from applying this remedy.
Alternatively, it reads like a trial court judgment that has been delivered without a trial.
No. The judgment reads as an anguish cry of protest against a blatant attempt to undermine the independence of the judiciary and to scandalise the court.
This, I submit, is a very uncomfortable halfway-house for the Court to find itself in:
No. The Bench says this is criminal contempt of an egregious kind.
it seems to be performing both the functions of a trial court,
Bhatia is batty. He thinks judges can be sued for libel for things said in open court. Now, he believes that if someone says 'I think a bunch of judges buggered my cat to death', then judges should be put in the dock and submitted to cross-examination. If the Supreme Court does not uphold batty Bhatia's view, then it is very evil.
but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.
A constitutional court can send a matter back to a trial court. There was no need in this case. Why? The Bench found there was 'absolutely no merit in the writ petitions. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry'.
This was a nuisance suit brought in bad faith. No lower court needs to bother with this shite ever again.
Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:
“In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure.”
In other words, they could outline their theory of what happened in pursuance of an order that a further investigation be conducted with a view to bringing the matter to trial. Sadly, their theory was obvious shit. Judges don't kill judges.
However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material “without being bound by technicalities of procedure” does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings.
The Bench gave latitude to the petitioners but they presented a crock of mendacious shite. The Bench says this was an attempt to attack the independence of the judiciary and to scandalise the courts. It was criminal contempt.
There is no procedural fault in this judgment.
The most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”,
i.e. one which was properly respectful of the dignity of the judges concerned
conducted by the State of Maharashtra, which recorded the “say” of the four judicial officers. The judicial officers broadly supported the State’s view that there was no reason to believe that Judge Loya’s death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.
They decided it should be accepted at face value. Why? It was obviously true.
To contrast what the Court did (which I discuss below), let’s imagine what would have happened had this been a normal criminal case pertaining to the death of Judge Loya.
There could be no such criminal case. Why? First, an Executive or Judicial Magistrate can order an independent inquiry, exhumation, or a detailed post-mortem examination under Section 196 of the BNSS if they suspect an offense took place, even if initial local impressions leaned toward natural causes. Since Hindus are cremated and these absurd charges surfaced some years after Loya's death, there could be no fucking investigation or trial. Allegations of bribery are a different matter. The Bench says 'Since the case also raises certain other matters (other than the death of Judge Loya), learned counsel requested this Court to remit the proceedings back to enable the petitioner to pursue before the High Court the reliefs sought on matters other than the death of Judge Loya. We find the request to be fair and proper. We accordingly direct that the present case shall be remitted back to the Nagpur Bench of the High Court of Judicature at Bombay. However, we clarify that the circumstances relating to the death of Judge Loya which have been dealt with by this Court in the judgment delivered.'
The Investigating Officer
There could have been none because no complaint had been made. A judge died of natural causes. Fellow judges took him to the hospital. There could be a case of medical negligence but it is recorded that the judge was dead on arrival at the cardiac hospital.
might have taken the statements of the four judicial officers
Hilarious! Investigating officers are deferential to judges. A 'discrete' inquiry can be made- indeed,this was done.
as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings,
Magistrates are deferential to judges. They close the proceedings on their say so.
it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure).
They would have failed immediately. Batty Bhatia doesn't seem to understand that absurd allegations against Judges are dismissed by both the lower and the higher judiciary. The problem was that 4 Supreme Court judges- Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph- held a press conference because they believed 'democracy was in danger'. The Wire reported. 'On being asked repeatedly, the Justice Gogoi told journalists that the press conference was prompted by issues surrounding the death of special CBI Judge B.H. Loya'. This was misleading. The issue was allocating the case to Justice Arun Mishra who was tenth in order of seniority. Perhaps they were not aware that the case was dog-shit. Mishra recused himself and the CJI along with two senior Judges, disposed of the case.
This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed.
Batty Bhatia doesn't think any case shoud be closed.
However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one,
It is very high. There has to be one or more of the following
Application of Judicial Mind. Cognizance occurs the moment a magistrate looks at the facts and decides to initiate judicial proceedings against the offence, rather than ordering a police investigation or issuing a search warrant.Prima Facie Case. The threshold is met if the allegations in the complaint or police report, assuming they are true, constitute a recognized offence.
Focus on the Offence, Not the Offender.
and exculpatory evidence is normally left to be brought in at the stage of trial.
Nonesense! Such evidence can be submitted before the police final report or, after it, by 'protest petition'. Once a charge sheet is filed, the accused can apply to be discharged before the trial begins under Section 262 of the BNSS (for Magistrate warrant cases) or Section 250 of the BNSS (for Sessions Court cases).
Batty Bhatia may be thinking of the "Police Record" Restriction. Under Supreme Court precedent, a trial court deciding a discharge application can normally only examine the charge sheet and documents submitted by the police. The accused generally cannot introduce their own private defence evidence (such as a personal alibi) at this stage. Here, the accused must approach the High Court with the exculpatory evidence to get the charges quashed. This happens if the evidence is of 'sterling quality'. However, the prosecutor may withdraw the case with the consent of the magistrate and the accused.
All this is irrelevant in the Loya case which was prima facie dog-shit.
This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed, then the four judicial officers would have been witnesses for the defence,
they would have been the accused. No one else is named in connection with Loya's death.
and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no “discreet enquiry” and no “say”: rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.
There was no accused so there could be no trial or defence witnesses. Batty Bhatia doesn't seem to understand that, at the trial stage, there must be a specific, identified, accused.
These are not simply “technicalities of procedure.”
There is no offence if there is no offender. You can't conduct a trial against nobody. This is not a technicality.
They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied.
You can't swear in a witness if there is no trial. There can be no trial if there is no specific, identified, accused.
And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth – or an approximation of it – cannot be arrived at in the absence of each party’s case being tested by its opponent.
Where is the accused? He is the opponent of the prosecution. If he is not identified, there can be no trial. Incidentally under the old rules (which would govern this case- if it really were a case) the Court can't cannot convict a sole absent accused. Instead, under Section 299 of the CrPC (now Section 335 BNSS), the court can only record witness statements in the absconder's absence so the evidence is preserved for when they are eventually caught.
For this reason, courts across the common law world have held that even the word “evidence” has little meaning until it is put through the rigours of a cross-examination.
Which is why the Bench found there was no evidence whatsoever to back up the petitioner's suit.
It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate.
It wasn't. There was no fucking case to answer. The thing was dog-shit.
And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:
None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya.
It hadn't. There was no evidence. It is no good saying 'had there been a trial without an identified accused (which is illegal) then these judges would have been witnesses. On the basis of this non-existent case, may we cross-question them as though they actually had been witnesses?'
The answer is 'no! Don't be silly.'
As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated
a discrete or polite investigation is not vitiated for that reason. There has to be evidence that its findings were perverse.
and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya.
Where is the video evidence of the Judges beating and sodomizing Loya? It doesn't exist. No doubt, Rahul Gandhi may one day challenge the Bench to a debate saying 'I have all the evidence on my phone. Modi knows this because he taps my phone. That is why he is afraid to debate me. Still, at least the Bench should do so because I'm not a stupid cunt at all.'
This, however, is circular: the whole point of the Petitioners was that the question of whether the “inquiry” was vitiated or not could not be decided without actually submitting the “evidence” of the judicial officers who participated in it to the rigours of cross-examination.
The Bench decided otherwise. Why? In Indian law, an inquiry is vitiated either by curable or incurable irregularities. With discrete inquiries, Lalita Kumari v. Govt. of U.P. , says that police cannot use an indefinite, unofficial "discreet inquiry" to delay registering an FIR when information clearly discloses a serious cognizable offence. Since no such information existed, this was not relevant in the Loya case.
Instead, what the Court did hold on the question of the “discreet inquiry” and the “say”, was the following:
Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)
So, the Bench felt the discrete enquiry had uncovered the truth. Was it the truth? Yes. Judges don't kill each other.
The whole point, however, is that the adverserial legal system is founded on the postulate that whether a statement has “a ring of truth” is to be determined by putting its maker on oath and subjecting her to cross-examination.
Where is the adversary? Without a specific, identified, accused, there can be no criminal case and thus no cross-examination.
People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard (recall how it was noted, in the Constituent Assembly, that “judges have not got two horns; they are men like us”).
Batty Bhatia may habitually sodomise and kill his colleagues. Fortunately, judges are not men like him.
Still, I do feel that the Indian Supreme Court in not cross-examing him, under oath, regarding his role in Rahul Gandhi's buggering to death my neighbour's cat.
The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose.
In which case nobody can come to a definitive conclusion regarding whether batty Bhatia held down my neighbour's cat while Rahul Gandhi buggered to death. Both must go through the legal system and give sworn testimony, subject to cross-examination, regarding the death of any and every sentient creature in the universe. As a Constitutional Scholar, I have frequently voiced my disappointment in Dr. Ambedkar for refusing to abolish death. If Rahul, with batty Bhatia as his side kick, is causing death all over the universe by means of a distasteful and non-consenual type of sodomy, then the Supreme Court should spend all its time dealing with petitions in this connection.
Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation
their statements were prima facie evidence that no investigation was warranted. Why does Batty think Courts should disregard evidence?
– or, if it was not going to do so, then required them to be sworn in and allow a cross-examination.
On what basis? Who was on trial? Nobody. No trial means no sworn testimony and no cross examination.
Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.
Because the petitioner and others were acting malafide with the intention to scandalise the Court. I believe a Review Petiton was submitted and dismissed. No Curative Petition was submitted and there the matter ended.
In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake.
If does, if- as the Bench said- the intention was to scandalise the court and undermine the independence of the Judidiary.
This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as “witnesses”, in the common sense of the word.
In which case batty Bhatia should give evidence every time somebody's cat dies. After all, he may have helped Rahul rape it to death.
Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system’s tools to address and resolve such conflicts.
Because the criminal legal system can only operate if there is a specific, identified, accused. My own case against Rahul could not proceed because he was in Thailand at the time that my neighbour's pussy died. However, if a trial of an unidentified person could proceed, then I could cross-examine Rahul & Batty to my heart's content- at least, in a world where Batty's rules of jurisprudence prevail.
For the purposes of this post, one more example will suffice: Judge Loya’s father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict.
Did they sign affidavits to this effect? No. This is hearsay.
The State of Maharashtra placed on record signed written statements (dated November 27, 2017) from Harkishan Loya, Anuradha Biyani (the sister), and Judge Loya's son, Anuj Loya, addressed to the Commissioner of the State Intelligence Department (SID) during its discreet inquiry. Those unsworn statements stated that the family had no suspicions or complaints regarding Judge Loya's death.
The Court rejected this by noting, inter alia, that it was “hearsay” (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case).
No. There was audio and video evidence that they had voiced serious allegations to the Caravan reporter. But they may have been paid to do so. To admit this evidence they would have had to affirm their statements. They did not do so.
The Court cannot take a janus-faced approach to the Evidence Act – discarding it in order to accord the highest probative value to a judicial officer’s “say” in a “discreet inquiry”, but following it by the book to discard statements made by the relatives of the deceased.
The Judges gained nothing from their statements. Family members may have been paid to say one thing to Caravan but refuse to say the same thing in court under oath.
What this results in, at the end of the day, is three judges’ assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.
The result was a 3 judge bench saying the petition was malafide. This was an attempt to undermine the rule of law by scandalising the court. The only crime here is criminal contempt- or, in Batty's case, incurable stupidity.
The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it.
It would be fair to say that the Bench creates problems for itself in its fruitless pursuit of 'complete justice' under Article 142(1)
The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial.
If the Bench did very much less, it would achieve very much more.
What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation,
people, like batty Bhatia, get angry when it won't do whatever stupid shit they want it to do.
there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree.
Sadly the Bench could not properly punish Bhushan for contempt. They have made a rod for their own back and can injure none but their own reputations.
The Loya Judgment was an opportunity for the Court to begin its journey down that road.
No. A 3 judge bench can't do much. You need a 15 judge bench to overrule Kesavananda & Bommai etc.
Unfortunately, it now remains a road not taken.
The road not taken was that of permitting criminal trials without an accused.
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