Monthly Archives: April 2018

Guest Post: Summary Dismissal of Impeachment Motions: Neither Final nor Infallible

(This is a guest post by Tejas Popat.)

Impeachment proceedings are not a routine in India. Rather, they are a matter of necessity in ensuring the continued trust of the people in the judiciary. As a result, in the 68 years of our constitutional history, only a handful of impeachment proceedings have been initiated.

On April 20th, the first against the Chief Justice, Dipak Misra was set in motion. However, the Rajya Sabha Chairman refused to admit the motion (Order of the Chairman). Only once before has such a motion been summarily rejected. This was in the motion against J.C. Shah J. when GS Dhillon was the Speaker of Lok Sabha. Acting on the counsel of the then Chief Justice M. Hidayatullah he dismissed the motion as ‘frivolous’ as it concerned some remarks made by Shah J. during a hearing against a certain OP Gupta. Without analysing the merits of each, such summary dismissals have wide ramifications. They raise questions on the powers the Chairman can exercise at such a nascent stage of an impeachment proceeding.

In this blog, I seek to analyse the scope and extent of this power to refuse to admit a motion under the Judges Inquiry Act, 1968 (hereinafter ‘the Act’) read along with the constitutional scheme. But, before I dwell on that aspect, I shall for sake of context set out the procedure for impeachment. Drawing from the procedure and after analysing the scope of the power, I conclude that in the case of Misra CJ., if challenged, this order of dismissal will not withstand any reasonable judicial scrutiny.

To clarify, I have used the term Chairman for ease of reference but, the same shall equally apply to the Speaker if proceedings are brought in the Lok Sabha.

Procedure of Impeachment

As Seervai explains (Vol. 3, pg. 2914), a successful impeachment motion goes through five stages.

  • At the outset, requisite number of signatures are to be obtained on the notice of motion for presenting an address for the removal of the judge in either house of Parliament. S. 3(1) requires fifty members of the Rajya Sabha or one hundred members of the Lok Sabha to sign such a motion.
  • After such a motion is presented to the Chairman, the S. 3(1) confers discretion to either admit or refuse to admit the motion. This decision is based on consultations the Chairman has or after he has gone through the materials before him (Notice of Motion and the documents which may have been submitted by the parliamentarians).
  • If the motion is admitted, the Chairman under S. 3(2) is mandated to set up a committee ‘for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for.’ This involves the committee following the procedure set out in S. 3(3) to 3(9) of the Inquiry Act aided by the powers conferred on them under S. 5 (asking for discovery of documents, examination of witnesses etc.) to prepare its report. The hearing before the committee are of a judicial nature allowing the Judge to present his or her case.
  • This stage involves the committee forwarding the report to the Chairman where the committee would have found the judge guilty or not of the charges framed. If the committee finds the judge not guilty, the proceedings come to an end as per S. 6(1). Otherwise, the motion which was till now with the Chairman is now forwarded with the report of the committee to the houses of the Parliament for voting on the motion.
  • Voting on this motion has to be completed as provided in Art. 124(4). Upon such motion being passed in Parliament, S. 6(3) states that ‘the misbehaviour or incapacity of the Judge shall be deemed to have been proved’ and this motion and the result of voting is forwarded to the President for him to exercise his powers under Art. 124(4). The President concludes the process by passing an order for the removal of the Judge.

Thus, only after such a rigorous process comes to fruition, does a member of the higher judiciary lose his office. I shall now come to the proceedings initiated against the Chief Justice.

The motion against Misra CJ.

We now come to the order passed by the Chairman on April 23rd in refusing to admit the motion.

The scope of the Chairman’s power to admit such a motion is only found in S. 3(1) of the Act. Thus, any analysis of the sufficiency of the motion must also be circumscribed by the requirements of S. 3(1). It reads thus:

If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,-

(a) in the case of a notice given in the House of the People, by not less than one hundred members of that House;

(b) in the case of a notice given in the Council of States, by not less, than fifty members of that Council,

then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him either admit the motion or refuse to admit the same.’

Now, the only explicit requirement provided in S. 3(1) is the numerical threshold of the signatures required. Thus, the Chairman must only assess whether this has been met. The instant case presents a great illustration. The motion submitted was signed by 71 members. However, in the meanwhile the 7 members had demitted office which led to the Chairman to find in the opening paragraph of the order that only 64 members could validly sign on the notice of motion. As reported, the members pointed this out to the Chairman but in any case, it presents a good example of how the powers which the Chairman may be limited to examining a procedural invalidity. In ¶ 4 he acknowledged that the requisite number of members had attested their signature and thus the requirement of S. 3(1) have been met. Therefore, ordinarily, the motion should have been admitted and he should have proceeded to put into motion the mandate of S. 3(2) viz. the constitution of the inquiry committee. But, that may not be the end of the debate.

It can be argued that some additional discretion may be vested in the Chairman vide S. 3(1) apart from merely considering the procedural validity of the motion. This lends itself not only from the words of S. 3(1) but also the fact that this power is made redundant if the job of the Chairman is merely to tally the numbers against the text of the Constitution. It is this discretion which would allow for consideration of the weight of evidence and the seriousness of allegations presented to him. Thus, what has to be determined the extent of this judicial power vested in the Chairman.

Here, it is relevant to consider the decisions in Mrs. Sarojini Ramaswami v. Union of India and M. Krishna Swami v. Union of India. The similarities between the two decisions are that Verma J. authored the majority opinion in both and they were also pronounced on the same date. But, on this specific point he contradicts himself. In the former he states that the Chairman forms the committee under S. 3(2) after forming a prima facie opinion (¶99). In the latter, he states that ‘the Chairman need not weigh the pros and cons to determine if there is a prima facie case. He merely has to act with a sense of responsibility which is guided by considerations of larger interest of the public administration of justice’ (¶44). Therefore, there is a need to determine a specific standard vis-à-vis the extent of the power and the scope of review by courts. A look at analogous situations where constitutional functionaries exercise adjudicative powers may help.

The Chairman has also been given a judicial power in the proviso to Art. 101(3). This is para materia to the proviso to Art. 190(3). Under this, the Chairman shall not accept the resignation of an M.P, ‘if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine.’ Commenting on Art. 190(3), the Chhattisgarh High Court noted, ‘Clause (b) of Article 190(3) gives an absolute right to the member of the House of the Legislature of the State to resign his seat. The only impediment in accepting the resignation is the enquiry which the Speaker/Chairman is bound to conduct. If no enquiry is conducted by the Speaker or the Chairman and the resignation is accepted, then the member of the House may challenge the act of the acceptance on the ground that the act of resigning was neither voluntary nor the resignation was genuine.’ The High Court thus seems to indicate that the scope of review by Courts is extremely limited. It is only when there is no enquiry which was conducted. By necessary implication, the Court will not interfere with the subjective satisfaction of the Chairman’s decision as long as the decision is based on some inquiry.

The standard the Chhattisgarh High Court seems to espouse the standard in the Bommai decision pertaining to the standard of satisfaction vis-à-vis the President under Art. 356. Before turning to the standard, we see if the same standard can be applied here. Though the Bommai standard was formulated in a different context but the standard is not specific to that context. The Bommai decision itself developed the standard from general administrative law principles (¶57) and therefore it cannot be restricted to Art. 356. Moreover, it has been applied to determinations made under Art. 123 or 213 as well in Krishna Kumar Singh (Sikri J. and Chandrachud J. agreed on this point thus forming the majority view) and Art. 72 in Epuru Sudhakar. Resultantly, the test in Bommai is not specific to the Emergency provisions but a general guidance on the manner in which discretion exercised by constitutional functionaries may be judicially tested. Now, coming to the test laid down in Bommai.

The Bommai ruling on this point can be dissected as follows. The President’s satisfaction is measured against four factors, first, the presence of material, second, whether the material is relevant, third, whether the material is sufficient, and fourth, whether inference drawn was legitimate. Now, the whole it may not be appropriate in the current context. As Chandrachud J. notes in his dissent in Krishna Kumar Singh by relying on Indra Swahney the level of scrutiny must depend on the subject matter and the nature of right affected (¶40). Thus, it would do well to recollect that the Bommai test is applied to a final determination and not a preliminary one like that of the Chairman given the five-stage impeachment process.

Keeping this in mind, the standard for reviewing a Chairman’s decision must, in my opinion, only involve a two-fold analysis. First, whether there was some material placed before the Chairman and second, the relevance of such material to the facts set out in the notice of motion. Thus, the Chairman would be justified in admitting a petition if these two grounds have been satisfied. Conversely, the burden on the Chairman is higher when he refuses to admit the motion. The standard to be met then is that there either exists no material or the material that exists is so spurious that the motion must be summarily rejected. The rationale for excluding the remaining two factors of the Bommai standard is that the proceedings before the inquiry committee are of a judicial nature. The charges against the Judge must be proved beyond reasonable doubt after examining the sufficiency and reliability of the evidence. Therefore, questions relating to burden and standard of proof are matters to be left for the members of the inquiry committee to decide.

The above formulation allows the Chairman some leeway in determining the admissibility of the motion on its substance as well. Evidently, this discretion is extremely limited, but, in the motion against Misra J. the Chairman started off on the wrong foot itself while scrutinizing the substantive allegations. In conducting his analysis, the Chairman as I shall elaborate now incorrectly sourced his power from Art. 124(4) and not S. 3(1). Not only that, the analysis based on the interpretation accorded to Art. 124(4) in this context was equally incorrect. Therefore, coming back to the order the Chairman.

Immediately after essentially conceding that the motion is admissible per S. 3(1), he begins ¶ 5 by stating, ‘I have carefully considered the question whether I should admit the motion submitted by the Hon’ble Members of Parliament or not, under Article 124(4) …. At the stage of admission, I have to apply a test that if every statement stated in the petition is believed to be true, would it still amount to a case of “proved misbehaviour” within the scope of Article 124(4).’

In the following few paragraphs he elaborates on the lengthy discussions he undertook before deciding this motion which are not of any immediate concern. After that, in ¶ 10, carrying forward what he stated in ¶ 5, he begins an analysis whether this motion can be admitted under Art. 124(4). This is erroneous on multiple counts.

First, Art. 124(4) does not even govern the role of the Chairman with regard to such a notice of motion. It confers an exclusive power on the President to remove the Judge from office by passing an order to that effect. This power is exercised after the procedure under Art. 124(4) has been complied with viz. misbehaviour or incapacity has been proved and the requisite address in each house of the Parliament has been passed to request the President to pass an order for removal of the Judge (See, Rule 16 of Judges (Inquiry) Rules, 1969 elaborating the detailed procedure for the adoption and passing of such an address and subsequently Rule 17 mandating that such an address to be presented to the President). Thus, the Chairman could not have even relied on Art. 124(4) to determine the issue of admissibility.

Second, assuming the Chairman can proceed to determine the motion in terms of Art. 124(4) he provides rather modest reasoning to support this. He states that, ‘the prefix ‘proved’ places an obligation of actually proving the misbehaviour before the Parliamentary Procedure for removal of a Judge can come into play.’ In support of this conclusion, he cited the decision of the Supreme Court in In Re. Mehar Singh Saini.

At the outset, the case did not deal with Art. 124(4) but Art. 317. Thus, the statement is a passing observation without the binding effect given to Supreme Court decisions under Art. 141. Second, this statement was made in order to distinguish the nature of the provision under Art. 124(4) and Art. 317 when the latter employs the word ‘misbehaviour’ and the former requires proved misbehaviour (¶ 74, (2010) 13 SCC 627). Thus, the decision is hardly of help.

Regardless of the above reservations, if we assume the authority to be of some assistance, such a conclusion contradicts the test that must be applied. Further, it not only contradicts the entire constitutional and statutory scheme but also jeopardises the purpose of having an inquiry committee to determine the guilt of the judge (See, S. 3(2)). While the latter is self-explanatory, I will now elaborate on the former.

The first instance in which the words ‘misbehaviour or incapacity’ are preceded by the word ‘proved’ is Art. 124(4). As I stated earlier, this is the provision which vests the authority in the President to issue an order which culminates the impeachment process viz. the fifth stage in the proceeding as Seervai explains it. None of the statutory or constitutional provisions dealing with any of the four preceding stages even mention the word ‘proved’ in the context of misbehaviour or incapacity (See as illustrations S. 3(1), 3(5), 3(6), 3(7) 6(1), 6(2) of the Act and the Inquiry Rules). The reason for this can be ascertained if we refer to S. 6(2) and 6(3) of the Act.

S. 6(2) states, ‘If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion … referred to in sub-section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.’

Thereafter, S. 6(3) states, ‘if the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of article 124 … then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved.’

Thus, only upon a finding of guilt by the inquiry committee and the parliamentary approval does any misbehaviour or incapacity stand ‘proved’ for the power under Art. 124(4) be exercisable. This is enabled by the deeming provision in S. 6(3). Thus, Only at such time when the charges have been proved, does the President get the authority to remove the Judge from office. At any stage before this, there are merely charges of misbehaviour or incapacity which have to be proved. This is evident from the fact that the elaborate judicial process is conducted by the inquiry committee. It frames the charges, allows for examination of witnesses and allows for the judge to be represented by a counsel (See, S. 4 and 5 of the Act). Furthermore, S. 3(2) makes this explicit when it states, ‘If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for …’ Thus, the burden of investigation and proving of charges is solely vested in the inquiry committee.

As Seervai notes:

‘In the context of s. 3(3) and s. 3(4) of the Inquiry Act the word “proved” can only mean that in presenting the notice of motion to the Speaker or to the Chairman that not less than 100 Members of the Lok Sabha or 50 Members of the Rajya Sabha believe that when oral and/or documentary evidence is led before the Committee constituted under s. 3(3) of the Inquiry Act, the allegation made in the notice of motion the Judge would be proved…. When after a full judicial inquiry prescribed by s. 3(3) and (4) the Committee finds the Judge concerned guilty of one or more or all the charges framed against him, the word “proved” is used in its ordinary sense, for the truth of the guilt of the Judge has been established by oral and/or documentary evidence and the Report to be sent to the Speaker would say so.’ (Vol. 3, pg. 2920)


Thus, it would be unreasonable to prove the charges as a precondition to merely admit the motion. It was on such an erroneous assumption that the Chairman proceeded to analyse the allegations terming them as a ‘mere suspicion, a conjecture or an assumption’. He concludes in ¶ 15 as follows: ‘I have applied my mind to each of the five charges as made out in the Motion. I have examined all the documents annexed to the motion. I am of the clear opinion that all the facts, as stated in the motion, read with the context of the annexed documents, do not make out a case under Article 124(4) of the Constitution which can lead to any reasonable mind to conclude that the Chief Justice of India on these facts can ever be held guilty of “misbehaviour”

Not only did the Chairman proceed on an erroneous basis, his analysis seems to have far exceed the level of scrutiny which may be made at this stage of the proceeding. Thus, if challenged, this order of the Chairman may find it difficult to be legally sustainable.

The author would like to thank Mr. Agnidipto Tarafder for his timely encouragement. He would also like to thank the Editor of the Blog, Ms. Aishwarya Gupta and Mr. Rishabh Mohnot for their comments and suggestions on the earlier drafts of this blog. The author can be reached at


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Filed under Impeachment, The Judiciary

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. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. 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. 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.”

The tangled history of the Sohrabuddin trial (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. I do not intend to address any of them here. 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. 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). However, what I do want to address is the Supreme Court’s approach to this case, and the larger ramifications for its role as a constitutional court.

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. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation. In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out – 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 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. 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. 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.

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 judgment, therefore, reads 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. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, 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.

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.”

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 most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”, 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.

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 Jude Loya.The Investigating Officer might have taken the statements of the four judicial officers 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, 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). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. 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, 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.

These are not simply “technicalities of procedure.” 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. 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. 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.

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. 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. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated 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. (paragraph 63)

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. 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)

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. 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”). 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. 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 – or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.

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. 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.

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. 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. 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). 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. 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 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. 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. 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, 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. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken.







Filed under Access to Justice, Article 21 and the Right to Life, Public Interest Litigation, separation of powers