Taking a strong view of the petitioner’s argument that “it has not put forth questions” to the state of Maharashtra in connection with the plea seeking an independent probe into the death of judge B H Loya, the Supreme Court said that it will “ask questions it wants” and that “justice lies in its conscience”.
The observations came after senior advocate Dushyant Dave, counsel for Bombay Lawyers’ Association, told the bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud that while the court “has put many questions” to him “and also offered alternative possibilities”, it has “not put forth such questions” to senior advocate Mukul Rohatgi representing Maharashtra. “It is a matter of great regret that the judiciary has unwittingly withdrawn. This report deserves to be thrown out in the dustbin. …Your lordships should have been more harsher. There were no searching questions that were put to the state… It troubles me that your lordships have put many questions and offered alternative possibilities during my arguments but have not put forth such questions to Rohatgi,” Dave said.
To this, Justice Chandrachud replied, “We will ask the questions we want. Justice lies in our conscience. We do not want a certificate from an arguing counsel.”
Concluding his argument, Dave asked the bench as to why it has not issued notices to Maharashtra government, which has filed the discreet inquiry report containing the testimonies of four lower court judges who accompanied judge Loya. “This court has issued notices in the Sunanda Pushkar case to the police. That is also a case where the death occurred in unnatural circumstances… But here your lordships have not issued any notices… this report does not inspire confidence,” Dave argued. Justice Khanwilkar responded, “That case is different…the police was already required to file a report several days before the said order but it had failed to do so.”
Justice Chandrachud said: “…The filing of affidavit can never improve the document or evidence… Any order for further investigation that we may pass shall depend on the adequacy or inadequacy of the evidence the state has filed before this court.”
Dave asked, “In the absence of affidavits, how can we attack the veracity of the report on the grounds of perjury or contempt?” Justice Chandrachud replied, “Any documents that have been filed across the bar are a part of the record… Proceedings for contempt and perjury shall still lie.”
During the arguments, Dave questioned the veracity of the discreet inquiry report, and said, “Soon after the article published, government ordered the inquiry… the commissioner of state intelligence sought permission from Chief Justice to record statement of four judges. How did he know who were the four judges? The report mentions only judge Barde… The commissioner did not step out. Did not see any document or meet any doctor to collect evidence. This report does not inspire any confidence…the state wanted to pre-empt an independent inquiry. And if this petition is dismissed, the state would achieve that purpose.”