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Blow-by-blow fireworks in the SC Loya case today: Dave vs Salve & Rohatgi • CJI vs Jaising

Personality clashes galore in the Supreme Court today...
Personality clashes galore in the Supreme Court today...

Judge BH Loya’s mysterious death was finally heard today for nearly an hour by the Supreme Court, under the shadow of the 12 January press conference of the Famous Four Judges, as well as Justice Arun Mishra’s equally mysterious recusal from hearing the case, after passing an order on 16 January.

As item 45 reached the Board at Court No.1 at 1 pm today, suspense was intense whether the CJI-led three judge bench would hear it after the lunch break, or make an exception and forego their lunch break.

Soon, it became apparent that the Judges – Dipak Misra, AM Khanwilkar and DY Chandrachud - would indeed be skipping lunch after hearing it for nearly an hour.

Acrimonious exchanges between the lawyers present marked the hearing giving a foretaste of what lies ahead, as the hearing progresses in the days to come.

We’ve put the courtroom drama and its implications in perspective.

How did it all begin today?

It started with the petitioner’s counsel submitting that page 25 in the documents that he had received from the state government (which deals with the post-mortem report of Loya) was missing.

Therefore, he said he would require 10 days of extra time, to obtain the complete set of documents.

Senior counsel Harish Salve, representing the Maharashtra Government, then referred to the short report prepared discreetly because Loya was a judicial officer under its jurisdiction, which had been submitted to the chief justice of the Bombay high court on 28 November last year.

The state government, he claimed, initiated the inquiry because of the media reports raising a suspicion over his death.

Senior counsel Dushyant Dave meanwhile, appearing for the Bombay Lawyers Association as intervenor to the case, was briefing the bench about how the judge’s security had been withdrawn, and questioned why Loya’s family was not informed about the death immediately despite there being two or three flights between Mumbai and Nagpur every day.

“There are serious contradictions,” said Dave. “The Chief Justice of the high court was present in Nagpur that day (when Loya died).”

Dave vs Salve

Dave continued: “Salve appeared for Amit Shah. It is unfair on his part to appear in this case. Salve did enough damage to the institution. He should not assist the court in this matter. Amit Shah’s the beneficiary (of Loya’s mysterious death).”

It was Mukul Rohatgi, who also appeared for Maharashtra Government with Salve, who responded.

Rohatgi said Dave was not a party in this case.

When Dave replied that he represented the intervenors, Rohatgi said four judges had gone from Mumbai to Nagpur and they had stayed in the same guest house, where Judge Loya had stayed, and a post-mortem on the Loya had been conducted.

Dave protests SC hearing case because one is pending in the Bombay HC

At least he tried.

Dave said as the high court was set to hear the case on Tuesday, the Supreme Court should await the result, as it would have the advantage of the high court judgment, before hearing it.

But the argument appealed neither to rival counsel nor to bench.

Rohatgi said, once the Supreme Court was seized of the matter, the high court could not hear it.

Ulterior motives, claims Salve; Continuing doubts, responds Jaising

Salve added that Loya’s death was being used by others with ulterior motives, which is why, we were hearing comments that were not supposed to be made in this court.

Dave said Loya’s father and wife had expressed doubts about the so-called natural death theory, and said Loya’s son had sent a letter, after having a meeting with the chief justice of the high court in his chamber.

Senior counsel Indira Jaising also pitched in saying there were other doubts, and that the state government had not submitted a complete record.

Bench, Rohatgi lose cool at Dave’s animation

As Dave’s tone, tenor and volume were increasing, the bench began to lose its patience. Justice Khanwilkar mildly admonished Dave for speaking so loudly; Justice Chandrachud asked counsel to assist the bench to hear the case with objectivity.

Dave then again asked how the bench could allow someone who had defended the person who stood to benefit by Loya’s death (i.e. Amit Shah) to assist the court.

Nobody should obstruct an independent inquiry, Dave said.

Chandrachud then said the bench can’t ask anyone not to appear in this case because he appeared for someone else earlier.

We can’t go by media reports, Chandrachud said, and referred to stories in The Wire, and the Scroll.in among others.

Dave repeated his assertion that as Salve had defended Amit Shah earlier, he can’t appear in this case.

“Stop the tirade”, thundered Rohatgi, in return.

Chandrachud noted: “Judges are not the bar council, to say whether a lawyer can appear in a case or not. You decide whether to appear or not.

“It is a serious issue. We must look at the facts. We would like to look at the documents. Let us have a full record of all the documents. Assist us with a spirit of lawyer’s objectivity without getting deflected.”

Chandrachud then asked Dave to give the bench a list of documents required by him.

Salve immediately said the state government would produce and supply the required documents in a sealed cover. There was nothing to hide, he claimed.

Both sides debate a possible media gag

At one stage, it appeared Salve was close to convincing the bench that the documents must not be shared with the media, and the order dictated by the bench must have a sentence on this.

This provoked both Dave and Jaising to raise their voice saying it amounted to a gag order against the media.

“If Salve has no problem in sharing the documents with the advocates, why fear the media? If you have to confine the documents to the lawyers, then it is a gag order. Why this exception? It is not done in any other matter”, said Jaising.

“There are statements of district judges in the document. Do you want it to be paraded everywhere?” asked Salve.

A discussion on sub-judice matters and the media’s freedom to discuss them then ensued between Justice Khanwilkar and Dave.

Dave insisted that the media could indeed discuss sub-judice matters, before they are decided. He again repeated that the beneficiary of such gag order would only be Amit Shah, for whom each of the lawyers on the other side, had appeared – Salve, Rohatgi and Pallav Sisodia.

Justice Chandrachud at this stage said: “Let us not cast aspersions. It is a natural death, as of now.”

When Dave too agreed that it is a natural death as of now, Salve asked not to name anyone without establishing guilt, and not to cast aspersions on anyone who was not in the court room.

Dave then told the bench that media discussed both the Sashi Tharoor and P Chidambaram matters, even when they were sub judice.

But then CJI Misra lost his cool at Jaising...

When Salve explained that he was not demanding a gag order, but only emphasised the need to protect the privacy of the servicing judicial officers whose statements the documents carry, Jaising went on an offensive.

She said that the bench only the other day had batted for freedom of the media, while hearing the Padmavaat film release case. Therefore, how could the bench speak differently now, she asked.

This provoked CJI Misra, shedding his calm demeanour until that point, and going on an offensive against Jaising, demanding an immediate unconditional apology for what she had said.

Misra’s defence was that the bench did not dictate any order gagging the media and was only debating the issue, in response to Salve’s suggestion.

Therefore, Jaising was wrong in jumping the gun and blaming the bench for adopting double standards.

Surprised at the sudden outburst against her from the CJI, Jaising sought to mollify him and offered an unconditional apology for making insinuations against the bench before the bench had made a decision.

In fairness, Jaising was probably not making any insinuations but only contributing to the debate by explaining that if the bench accepted Salve’s suggestion, it would convey double standards.

Indeed, far worse things had been said by the other counsel earlier throughout which the CJI had maintained a dignified silence.

His outburst against Jaising, therefore, was rather puzzling.

Though Misra was soon back to his old self, the question of whether the CJI had shouted at her, keeping her role in the January 12 press conference of the four Judges in mind, troubled some observers in the courtroom.

The CJI then concluded by saying: “I am a clear-headed man. We will pass the order, not advise the counsel. Did I utter a word? You can’t make such a submission.”

Misra's voice suggested he had mellowed.

Dave and Jaising were eventually forced to agree to the transfer of the pending HC petitions?

Dave and Jaising appeared to have no other option at that point, after their initial protest.

The CJI thus dictated his order: “It is in the fitness of things to transfer the petition to this court. As we are seized with this matter, the high court should not entertain any matter on the same issue, and no other high court should entertain a similar matter”.

Dave only sought to ensure that the high court was not prevented from hearing a petition challenging the discharge of Amit Shah from the Sorahbuddin matter.

To this, the CJI said: “We are not concerned with that subject matter.”

In response to Dave suggesting that the high court assist the apex court, the CJI was unmoved, asking why the high court should assist, as it is not a service matter.

Some other colourful phrases used by the other side to describe Dave and Jaising

“Self-appointed conscience keepers” and “Dave can assist in bringing credible material, not party”.

To this, Justice Chandrachud quipped smiling: “That is a value judgment. We will look at it”.

So what is likely to happen at 2 pm on February 2, when it is listed for next hearing?

There could be more fireworks between Dave and Jaising on the one side, and Salve and Rohatgi on the other.

The state government may oppose any move to investigate the so-called mystery surrounding Judge Loya’s death, saying there was none.

The other side, especially, the intervenors, may insist that there is a strong case, as disclosed by information obtained through RTI.

This ain't over by a long shot...

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