6. A Farce | Crooked Media
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June 24, 2024
Killing Justice
6. A Farce

In This Episode

The articles about Judge Loya’s death prompt five petitions for a formal investigation into his death. And they all land in front of India’s Supreme Court.




Ravi Gupta: When I went to Mumbai last fall, I wanted to visit one place in particular. Bombay High Court. 


[clip of Ravi Gupta] It was built in the 1800s by the British. 


Ravi Gupta: I went with my producer Khrista, early in the morning. 


[clip of Ravi Gupta] It’s almost like. How would you describe that? 


[clip of Khrista Rypl] There’s just all of these beautiful vines and trees and flowers. 


Ravi Gupta: This place is at the center of this last portion of Judge Loya’s story. It’s where in 2018, two key petitions were filed urging the court to investigate the judge’s death. But it’s also where many everyday Indians go to seek justice. The only higher court in India is the Supreme Court. Standing in front of the Gothic facade, the morning light gives it a grandeur. The size, the stonework, it has the gravitas of a strong institution. But as the day went on, I wondered if the architecture was nothing more than a convincing set piece. 


[clip of Khrista Rypl] Should we walk around a little bit more and see what else we can see? 


Ravi Gupta: After admiring the building, we ducked into a coffee house nearby. The day was already sweltering at 8:30 in the morning, and the coffee house was a haven of air conditioning. Lawyers in crisp white shirts and black slacks were huddled around tables poring over case files. Khrista and I had just ordered coffee when an attorney nearby called us over. He pulled his court notes from his leather briefcase and laid them out across the table, alongside an English copy of a book on negotiating tips. 


[clip of Ravi Gupta] You’re a lawyer? Oh, nice. I’m a lawyer from the United States. 


[clip of unnamed lawyer in coffee shop] Oh, you’re a lawyer? 


[clip of Ravi Gupta] Yeah, yeah, well, sort of. I don’t practice law though.


Ravi Gupta: I began breaking the ice by mentioning my long unused law degree, and shared a bit about what we were working on. He then laid out a series of handwritten notes walking us through each of the cases he was set to argue that day. When I started asking him about how he felt about the Indian justice system, he invited us to his office to talk in private. We were intrigued, so we followed. When we sat down in his office. It quickly became clear that, like so many people I spoke to for this story, he had a lot to say, but he absolutely did not want anything attributed to him. Khrista and I debriefed the conversation once we left the office. 


[clip of Ravi Gupta] I asked him about his experience as a muslim advocate and whether things are getting harder, and you could see how sad he became. 


Ravi Gupta: His expression and body language were so dejected. It felt like I had a brief window into something very private. 


[clip of Ravi Gupta] He looked almost like he was going to cry. And then he said uh he just nodded. So like basically acknowledging that, you know, of course things have gotten a lot harder for Muslims. 


Ravi Gupta: He also said something in that conversation I’ve returned to again and again in the months since. 


[clip of Ravi Gupta] He also mentioned a corruption like that it’s a, I think the way he described it is that it’s like the air you breathe. He definitely acknowledges that corruption is like a standard part of the criminal justice system here in India. 


Ravi Gupta: This climate of corruption hangs over this entire story. Of course, corruption happens in a lot of places, including in the US, but it’s not something you expect on every level of bureaucracy. It’s not normalized. Combine that with how slowly the judicial system moves, and it’s easy to see how even when things end up in court, there’s no guarantee justice will be done. I saw this firsthand later that trip, when I visited a court in Varanasi, where hundreds of families and their lawyers waited in open air stalls with no clear sense of when their cases would be heard. Litigants show up day after day, waiting for their case, often for years, going without income. And according to the New York Times, there are 50 million cases pending across India. At the current rate, that would take 300 years to clear. Recently, a bank liquidation case was settled after 72 years of litigation. But not everyone has to wait so long for a verdict. Especially if you’re Amit Shah, the Prime Minister’s right hand man. [music break] I’m Ravi Gupta, and this is Killing Justice. Episode six, A Farce. Judge Loya’s death was both an ending and a beginning. It was the end of a man’s life. A man who seemed to be devoted to the idea of justice. But it was also the beginning of a saga that wound all the way up to the Supreme Court. In this episode, I’m going to trace how that court’s decisions have pushed and pulled the unfolding action from the very start, and brought us to a conclusion that makes India’s justice system look more like an instrument of injustice. But let’s rewind to the other legal saga that features prominently in this story. The case that Judge Loya had been tasked with hearing, the one where Amit Shah had been charged with the murder of an alleged gangster, Sohrabuddin Sheikh. Once Modi and the BJP came to power, Shah’s case sped through the justice system. This might seem a little in the weeds, but stick with me for this. It’s important to follow. In 2012, Shah’s case landed in front of a judge. Judge Utpat in Mumbai. He oversaw the case for two years until just a few weeks after the BJP was elected in May 2014. The next month, Utpat was transferred and that’s when Judge Loya took over. Loya started reviewing the case in the summer and still hadn’t made a ruling by the time he died in November. In fact, Shah hadn’t even appeared in front of the court at that point. So when a third judge was assigned after Judge Loya’s death, it would be reasonable to assume that he would also need a few months to review the mountain of case files. But he didn’t. Judge MB Gosavi ruled on the case within just a few weeks, without ever requiring Shah to appear in court. In less than a month, all of the charges against Amit Shah had been discharged. [music break] In a country where justice can ooze along at a snail’s pace, Shah was able to wash his hands of any litigation in less than a year once the BJP was in power, and it’s not the only ruling that moved surprisingly quickly. Fast forward to 2017. Judge Loya’s death had become news thanks to the Caravan, and plenty of people wanted to know if there might be something nefarious about his death. So a few intrepid litigators started a new fight in the courts. These petitions were also addressed with a swiftness uncharacteristic of the Indian justice system. 


[clip of Ahmed Abdi] We took initiative because it’s a question of rule of law. 


Ravi Gupta: This is Ahmed Abdi. 


[clip of Ahmed Abdi] If judges are not secured in a country, what about the common man? 


Ravi Gupta: Ahmed is the president of the Bombay Lawyers Association, or BLA. These are some of the people who knew Judge Loya best. Members of the Bombay Bar. And they were disappointed to see that the Caravan articles didn’t prompt a government inquiry. 


[clip of Ahmed Abdi] It needs to be investigated thoroughly, and if there is some foul play, it should come to light to the public. 


Ravi Gupta: That’s why they petitioned the court for an independent investigation into Judge Loya’s death. 


[clip of Ahmed Abdi] What is the truth about his death? That is what we want.


Ravi Gupta: The BLA’s petition was actually one of five originating around the country, all asking for the same thing. An independent investigation. The five suits were rolled into one, and within just a month, the case was assigned to a bench of three Supreme Court judges. Meanwhile, something else was playing out behind closed doors, and it would culminate in four Supreme Court justices making an unprecedented move. They called a press conference. 


[clip of Niranjan Takle] That was a huge thing. This has never happened in the past. 


Ravi Gupta: Reporter Niranjan Takle remembers being in Delhi in January of 2018, catching up with an old colleague in a restaurant when they received a breaking news alert. 


[clip of Niranjan Takle] And we were, I think, having breakfast and she got a message on her phone. 


Ravi Gupta: The four Supreme Court justices already were live on the press conference. To anyone paying attention, this was shocking. In India, judges are discouraged from speaking to the press. 


[clip of Niranjan Takle] This is an unprecedented thing that is happening. 


Ravi Gupta: Niranjan remembers immediately leaving the restaurant with his colleague, rushing to try to find somewhere they could watch the news. 


[clip of Niranjan Takle] Then uh, we went to a cafe nearby, a cyber cafe. Then we started watching it. 


Ravi Gupta: They settled in to watch the live coverage. Today you can find the whole press conference on YouTube. The justices are gathered in front of the most senior judge’s house. Four old men sitting on the lawn in comfortable chairs. They’re reserved. Speaking calmly. A stark contrast to the noisy cameras and crush of reporters. The most senior justice, Justice Chelameswar, addresses the crowd. 


[clip of Justice Chelameswar] The administration of the Supreme Court is not in order. 


Ravi Gupta: It’s hard to hear. But he says the administration of the Supreme Court is not in order. They called the press conference because they just had an unusual meeting with the Chief Justice of the Supreme Court, Dipak Misra. They had taken issue with the way he had assigned judges to a case. It wasn’t immediately clear to me why this detail about case assignment ended up causing such a firestorm. So I reached out to legal expert Alok Prasanna Kumar, who co-founded the Vidhi Center for Legal Policy, and he explained why bench selection can be so controversial. 


[clip of Alok Prasanna Kumar] There are, as of today, 34 judges on the Indian Supreme Court. 


Ravi Gupta: He says that the Chief Justice is in charge of assigning those 33 other judges to cases. But sometimes there are exceptions. Occasionally, the Chief Justice will assemble a special bench for a case and include himself. 


[clip of Alok Prasanna Kumar] This is where controversy has erupted a lot. A case is considered quote unquote, “important” and the chief justice says, I will hear the case or the bench that I am sitting in as part of. I will hear the case. 


Ravi Gupta: That’s what happened with the petitions for an investigation into Judge Loya’s death. The chief justice had assembled a special bench. The four judges who called the press conference believe the chief was using his powers to tilt the balance of key decisions by signing his preferred judges to the most sensitive cases. And by doing that, they feared the chief justice was compromising the independence of the judiciary. That’s what pushed these four justices to make a public statement about the state of their institution. 


[clip of Justice Chelameswar] As [?] just said, the hallmark of a good democracy is an independent and impartial judge. 


Ravi Gupta: The hallmark of a good democracy is an independent and impartial judge. It wasn’t just a press conference. It was a call to action. [ominous music] And the Indian press pounced. 


[clip of unnamed news reporter] What we have just witnessed is a historic event in Indian judiciary and also in the course of our democracy. 


Ravi Gupta: During my reporting, whenever I spoke to people about the Loya case, this is the moment people often remembered. They immediately ask, did you watch the judge’s press conference? That’s never happened before. For the judges to break protocol and speak out like that. They must have been desperate. They wanted their names on the record against what they viewed as an unprecedented decline of their institution. 


[clip of Justice Chelameswar] I don’t want another 20 years later, some very wise men–



Ravi Gupta: It’s hard to make out, but he’s saying that the group didn’t want anyone 20 years down the road to say they sold their souls. The judges don’t mention Loya by name. But the timing of this, the day of the hearing around the two petitions. The fact that they mentioned speaking to Chief Justice Misra that morning. Reporters had a theory. 


[clip of unnamed reporter] That’s right. And but today, [banter] is there any specific issue? Is it Justice Loya? 


[clip of Justice Chelameswar] It is an issue of assignment of a case, which is an issue raised in that letter. That was there. [sound of phone ringing] 


[clip of unnamed reporter] This is about Loya’s thing, is it about Loya? [banter] So may I ask you a question please? 


Ravi Gupta: Niranjan was watching all of this live from an internet cafe, and he was convinced that the Loya case had played a role. 


[clip of Niranjan Takle] And I started shouting, so I was elated. 


Ravi Gupta: Niranjan hoped his reporting would encourage members of the judiciary to support the need for an investigation into Loya’s death. Loya was, after all, a judge himself. Now with four Supreme Court justices speaking out, Niranjan felt something had fundamentally changed. 


[clip of Niranjan Takle] So it means that now at least the matter can reach its logical end. And I was feeling very happy about it. 


Ravi Gupta: But even though that press conference made national news, it didn’t change what had already been set in motion. The same bench the Chief Justice originally selected plowed forward. Hearings began in early 2018. Atul Dev is the journalist I met in New York City. He was covering the hearings for the Caravan. 


[clip of Atul Dev] I had been there on every single day of the Loya hearings. I sat through the entire court proceedings. 


Ravi Gupta: Atul says he watched from a press box from the Chief Justice of India or CJI’s courtroom. 


[clip of Atul Dev] The hearing is going on in CJI’s courtroom, which is directly under the dome of the Supreme Court. 


Ravi Gupta: The purpose of these hearings was simply for the court to decide whether they should compel an official investigation into Judge Loya’s death. Until this point, the only information that had come out was from the news reports. With these hearings, Atul and the rest of the public had a chance to understand what the Maharashtra government said had happened in detail. And that came in the form of a pile of paperwork. 


[clip of Atul Dev] So the [?] of Maharashtra presented a 64 page dossier. 


Ravi Gupta: This dossier, Atul is talking about, it’s evidence gathered by the police and intelligence unit of the Maharashtra government. It wasn’t a full investigation, just a handful of selected interviews and statements that sometimes contradicted each other. But it did contain something that turned the Caravan’s narrative upside down. New accounts from the Loya family. In these letters, the family backtracked on their suspicions around the judge’s death. When the Maharashtra SID presented retractions from the Loya family, the whole thing stunk to many of the people we talked to, including Atul Dev, the caravan reporter. 


[clip of Atul Dev] All I have is a statement from somebody who is absolutely unreachable to everyone except for the government. 


Ravi Gupta: Published reports said that the family was incommunicado for about a week after the Caravan articles were published. According to Atul’s reporting, that’s exactly when the Maharashtra SID produced statements from the family that retracted what they had told the Caravan. We attempted to interview members of the Loya family for months in the lead up to the release of the series. After the first two episodes of the show were published. We received a letter from Anuj Loya, Judge Loya’s son. In the letter, he told us that anything he had to say in the matter, he had told the Maharashtra state inquiry and the family was fully satisfied after the court’s scrutiny. This about-face and its timing is what’s so perplexing to me, and certainly to Atul. 


[clip of Atul Dev] The thing is, clearly they had suspicions back in November. If they do not have any suspicion in January. I would like to know what happened in December. 


[clip of Ravi Gupta] And uh the Supreme Court could have asked them to testify but they didn’t. 


[clip of Atul Dev] The Supreme court could have asked to testify a lot of people. 


Ravi Gupta: This brings us to a series of decisions the court made that continues to baffle Atul, Alok, and so many other observers we talked to. You know that moment in every legal movie where people are sworn in, the witness will put their hand on the Bible, raise their left hand in the air and swear to tell the truth, the whole truth, and nothing but the truth. The court just skipped that step, because all the statements submitted by the Maharashtra State government were not required to be made under oath. This was shocking to Atul Dev, the reporter.


[clip of Atul Dev] Anybody who has dealt with the legal system knows that this is not how statements are taken. They have to be on an affidavit so that if you’re lying, you’re perjuring yourself. They’re judges. They should know it themselves. But no, there is no affidavit. These are things that they have written down on a piece of paper. This is what is produced in the Supreme Court. 


Ravi Gupta: Not only that, the petitioners were given no chance to cross-examine the witnesses. That meant that the petitioners lawyers weren’t able to question or clarify points made in the various statements submitted by the state of Maharashtra. The Bombay Lawyers Association actually asked the bench for permission to do this. Here’s legal expert Alok Prasanna Kumar. 


[clip of Alok Prasanna Kumar] In Hindi, there is a nice phrase, for it’s called to to, me me. Which means, you you, me me. The English word would be he said, she said. Right? So they would be like, look, give us an opportunity to cross-examine. We’ll come out, will will be able to tell what is the truth of the matter. 


Ravi Gupta: But the request to cross-examine witnesses was rejected, which meant that some of the inconsistencies in Maharashtra’s dossier were never examined, like the written statements submitted by the four judges who accompanied Loya that night. It turned out that two of those statements contradicted each other. You might remember that there was controversy around whether Judge Loya received an electrocardiogram or ECG. In a letter submitted to the state of Maharashtra, one of the judges, Judge Barde, describes Loya receiving an ECG at Dande Hospital. But another judge, Judge Rathi, wrote in his statement that the ECG was broken. That contradiction has never been reconciled. Contradictions aside, the evidence submitted by Maharashtra state supported the official narrative that Judge Loya died of natural causes. There was one other decision the bench made that clouded the new information in court filings. The court approved a request that all the evidence submitted by the state of Maharashtra would be held under sealed cover. There are only a handful of people who have ever had access to all of this material. The three justices hearing the case, the Maharashtra state government’s defense counsel, and the petitioner’s lawyers. That’s it. Some of those materials, like the statements from Judge Barde and Judge Rathi, were later quoted in court records. So we know what they said. But others, like statements from the Loya family, appear to have never been made public. 


[clip of Alok Prasanna Kumar] Now, to me, that is a complete farce of any kind of procedure because you have two contesting stories here. 


Ravi Gupta: Legal expert Alok Prasanna Kumar says the Supreme Court had an opportunity to establish the facts. They could have said: 


[clip of Alok Prasanna Kumar] We feel that before taking this further, we need to establish what really happened. What action that happens afterwards happens afterwards. But we want to first get an idea as to what has actually happened here. And I think that wasn’t allowed to happen here. 


Ravi Gupta: Alok sees these decisions as a major failing of the Supreme Court. 


[clip of Alok Prasanna Kumar] If you were the Supreme Court, one to do this exercise without giving the opportunity for one side to cross-examine the other, without allowing for a full examination of all of the evidence, without bringing all the material on record, without having, like, some impartial authority overseeing this feels like you’re trying to brush something under the carpet. It feels like you just don’t want to go into it. Right?


Ravi Gupta: Now, there was only one thing left to do. Present their ruling. So, less than six months after Niranjan published his first article in The Caravan, the Supreme Court published its judgment. 


[clip of unnamed news reporter 2] A fresh update coming in. 


[clip of unnamed news reporter 3] This is an explosive case. 


[clip of unnamed news reporter 4] The three judge bench of the Supreme Court heard Justice Brij Gopal Harkishan Loya’s death case. 


[clip of unnamed news reporter 5] We know tomorrow morning. Clearly, both political and judicial implications for this. 


Ravi Gupta: That’s after the break. [music break]




Ravi Gupta: The Supreme Court had nine hearings on these petitions in early 2018, and by April they finally made their decision. Atul the reporter from the Caravan remembers what he did when the decision was released. 


[clip of Atul Dev] And then I came back to the office. I printed the judgment. I took it home. I sat down with a glass of whiskey, and I started going through it. 


[clip of unnamed news reporter 6] The Supreme Court has just delivered its verdict on the batch of pleas that sought an independent probe into the death of Justice BH Loya. The apex court has, in fact, dismissed those petitions that sought an independent inquiry. 


[clip of unnamed news reporter 7] And in a big observation, the Supreme Court said that all documents show that Judge Loya’s death was natural. 


Ravi Gupta: There would be no investigation into the death of Judge Loya. To Atul Dev and many others we’ve spoken to, the ruling felt utterly baseless. The Supreme Court simply decided that the state of Maharashtra’s version of events was convincing. The judgment specifically cited the statements from the judges who were with Loya the night he died. 


[clip of Atul Dev] And the Chief Justice of India writes in this judgment that I could trust these judgments because and I quote, it is a sentence in that judgment, you can go read it today. “They have a ring of truth.” 


Ravi Gupta: The judgment was written by Justice Chandrachud, and it read that the Supreme Court was content to simply take fellow members of the judiciary at their word. 


[clip of Atul Dev] Now, I don’t think D. Y. Chandrachud is a person who can read minds through paper. So whether for him they had a ring of truth or not is absolutely inconsequential. I would like to know why are these things legally submissible. Why should I believe them? It might have had a ring of truth for Mr. Chandrachud, but like these are not the things that would stand the scrutiny of basic journalistic ethics. I mean, forget law. 


Ravi Gupta: Legal observer Alok Prasanna Kumar is also unimpressed by the logic of the court in its judgment. 


[clip of Alok Prasanna Kumar] The point of this exercise is what is the truth? What is the truth of the matter? And the truth of the matter is established in a manner understood by law. That is what the court has not allowed to go ahead in this case. And that is unfortunately what keeps people sort of saying, what really happened with Judge Loya? 


Ravi Gupta: And that was it. There was and is no other legal recourse to pursue an official investigation into Judge Loya’s death. [music break]Even if new evidence were to come up, if there was a sudden appetite for opening the case, now even more time has passed. Memories fade. Documents are lost. Witnesses pass away. We’ve seen enough movies to know what time does to evidence, which is deeply unsatisfying, because had there been a true investigation back in 2014, we might have a lot more answers. Looking at the way the courts handle these petitions raises a big question for me. Is the Indian judiciary truly independent? Questions like this are hard to get at. But Alok pointed me to a study on corruption in the Indian judiciary. 


[clip of Alok Prasanna Kumar] So this is one of those things that is actually measurable. 


Ravi Gupta: There’s a team based in Singapore that published a paper looking at how rulings of Indian Supreme Court judges are impacted by politics. 


[clip of Alok Prasanna Kumar] This is objectively measured data driven study, which shows how the prospect of a post retirement job influences the way a judge decides a case. 


Ravi Gupta: India’s Supreme Court justices all retire at 65. They do not have lifetime appointments, and research shows that the possibility of a government job after retirement has a way of driving judicial decisions. 


[clip of Alok Prasanna Kumar] So a judge who generally is kind of 50/50 on most issues starts to get more pro-government as the retirement comes in. And most interestingly, they start becoming more pro-government only when they know the government has enough tenure left to give them a job. 


Ravi Gupta: And while the study focuses on Supreme Court justices, Alok says it’s hard to imagine that other judges wouldn’t feel the same pressures. 


[clip of Alok Prasanna Kumar] So who wants a bribe? 


[clip of Atul Dev] It was a farce. 


Ravi Gupta: Atul sees the whole saga as a total failure of the system. 


[clip of Atul Dev] I have reported on the constitutional history of India. I have profiled three judges, three Chief justices of the Supreme Court and profiled the Solicitor General of India. I have written a 15,000 word essay on the appointments process and how it was corrupted in the history of independent India at the Supreme Court, and that trial. That hearing was an absolute farce. 


Ravi Gupta: The question I’m left asking is what happens to a democracy when the system in place to establish truth stops working? In our next episode, reporter Atul Dev and I explore why Judge Loya’s death was a turning point for India. 


[clip of Atul Dev] When it was unfolding. It was shocking in a way that nothing was after it. 


Ravi Gupta: And at the end of a grueling reporting trip, I cajole my dad to take me to his ancestral village. 


[clip of Ravi Gupta] So as you head back here, do you think you’ll recognize anybody or know anybody in this town anymore? 


[clip of Avdesh Gupta] Well, it’s it’s going to be very difficult to me, it seems like, because most of the people who are older than me, they apparently have died. 


[clip of Ravi Gupta] Well, let’s make it a goal. Let’s try to find one person. 


[clip of Avdesh Gupta] Yeah. 


[clip of Ravi Gupta] That that, you know, and I think a bonus would be a one person who’s ever met your father. 


Ravi Gupta: And we find so much more than I ever expected. [music break] Killing Justice is an original podcast from Crooked Media and the Branch media. I’m your host, Ravi Gupta. Our executive producers are me, Ravi Gupta, Katie Long, Ben Rhodes, and Alison Falzetta, with special thanks to Sarah Geismer, Madeleine Haeringer, and Kate Malekoff. Our senior producer is Khrista Rypl, and Lacey Roberts is our story editor. Our associate producer is Sydney Rapp. Fact checking by Amy Tardif, sound design and mixing by Sarah Gibble-Laska, with assistant editing by Nathalie Escudero. And original score by Karim Douaidy. [music break]