Death of Judge Loya: The Backgrounds of the Loya Petitioners in the Supreme Court Raise Questions About the Legitimacy of Their Petitions

The backgrounds of the petitioners in the Supreme Court cases seeking an investigation into Judge Loya's death, and the manner in which the petitions have been listed and heard since they were clubbed together on 12 January, merit close scrutiny.
21 January, 2018

The Supreme Court is presently hearing two petitions seeking a probe into the mysterious death of the judge BH Loya. At the time of his death, Loya was presiding over the trial in the Sohrabuddin encounter case, in which Amit Shah, now the president of the ruling Bharatiya Janata Party, was the prime accused. The two petitions were filed, respectively, by Tehseen Poonawalla, who claims to be a “political trendsetter” on his Twitter profile, and Bandhuraj Sambhaji Lone, who has been referred to in the media as a journalist from Maharashtra. The backgrounds of the petitioners, and the manner in which the petitions have been listed and heard since they were clubbed together on 12 January, merit close scrutiny.

While the media has identified Poonawalla as a Congress leader and Lone as a journalist, these labels appear to be of questionable validity. The leaders of the Congress have been forthrightly clear that the party has nothing to do with Poonawala’s petition. “The Congress party has not filed this petition,” Kapil Sibal, the party leader and Supreme Court lawyer, told me. “I was not consulted and I have nothing to do with it.” Lone did have a career as a journalist, but several of his former editors and colleagues told me that he was no longer working as one, and that he was informally attached to the public-relations office of Ashish Shelar, the head of BJP’s Mumbai unit. “He is one of those journalists who switch over to the personal staff of politicians,” one of Lone’s former editors, who requested not to be identified, told me. Lone, when contacted, denied this.

I spoke to three of Lone’s former editors and two of his colleagues, most of whom did not want to be identified. They helped piece together some of the history of the man. Lone worked for around a decade as a reporter for Mahanagar, a Marathi daily, before moving to another daily, Loksatta, where he was given the prestigious assignment of covering the Bombay Municipal Corporation. A former editor and a former colleague of his said that Lone liked to wax eloquent about the ideas of Karl Marx, Vladimir Lenin, Jotirao Phule and BR Ambedkar. “He fancied himself a revolutionary,” his former colleague said. “But it was mostly just talk.”

By around 2010, according to his former editors and colleagues, Lone was out of work, with no money and no prospect of a job. “For a long time, Lone did not have enough money to buy a beer at the Press Club,” the former colleague said. “I don’t even think he was in Mumbai for a couple of years.” One day in 2015, the former colleague recalled, he spotted Lone sitting in the lobby of Hotel Parle International, a three-star establishment close to the airport. “I went to him and asked what he was doing there. He said that he was waiting for someone.” While the two were catching up, Parag Alavani, a BJP member and serving MLA of the locality approached them. “Are you waiting for him?” the former colleague said he asked Lone. “Yes,” Lone replied. Since then, according to his former colleagues and editors, Lone himself has been claiming to work for Shelar.

“I have seen many journalists who switch over to the other side,” the former colleague said. “But Bandhuraj is a person who worked with the newspaper of the Peasants and Workers Party”—the daily Krushival, where Lone worked after Loksatta, is run by the PWP, a Marxist political party in Maharashtra. “I mean, even his name, Bandhuraj, is an adopted revolutionary name. It means comrade. And here he was, working with the BJP MLA for this job or that.”

Kumar Ketkar, who was the editor of Loksatta when Lone worked there, told me that Lone has no qualms about his association with the BJP. “He calls himself close to Ashish Shelar,” Ketkar said. Shelar is the head of the BJP’s Mumbai unit. “Now that does not mean he would be on the payrolls of Shelar’s office, though that might be the case. It simply means that he would be willing to work for him, in whatever capacity, for money, and has done so in the past.”

Ketkar added,  “He would have himself told you that he works for Ashish Shelar had you asked him about a month ago.” When I called Lone, he denied having ever worked with Shelar’s office. “The BJP is a fascist force, and I have been fighting fascist forces for all my life and will continue to do so,” he said. Lone conceded that he and Shelar are friends, but insisted their relationship remained one between a journalist and a politician. He added, “I have only worked with the office of Sunil Tatkare”—the Maharashtra state president of the National Congress Party.

Lone filed his petition before the Supreme Court, seeking a probe into Judge Loya’s death, on 11 January. In the preceding days, the Bombay Lawyers’ Association had filed a public-interest litigation in the Bombay High Court, seeking the constitution of a commission of enquiry headed by a retired Supreme Court judge to investigate Loya’s death. At the time, the Nagpur bench of the Bombay High Court was also hearing another petition, filed by a right-to-information activist named Suraj Lolage, seeking an investigation into Loya’s death, and also into the mysterious death of the advocate Shrikant Khandalkar—whose body was found on the premises of the Nagpur district court in late November 2015, two days after he had gone missing. The petition asks for the investigation to be carried out by the police of a state where the neither the BJP nor one of its allies is in power.

On the day that it was filed, Lone’s petition was mentioned before Chief Justice Dipak Misra, who agreed to hear the matter the very next day—the same day that the Bombay High Court petition was also listed for hearing. In an article published on the legal news website Bar & Bench on 19 January, the senior advocate Dushyant Dave expressed his surprise at the speed with which the case was listed for hearing. He noted that “hundreds of Counsel are being declined request for early hearing every week,” And that, “To top it all, the Chief Justice assigns the case to the Bench presided by Hon’ble Mr. Justice Arun Mishra sitting in Court 10, thus completely overlooking the seriousness of the matter which demanded that it be assigned to the senior most Judges.”

On 12 January, the Bombay High Court heard the petition pending before it and listed its next hearing on 23 January. Also on 12 January, the Supreme Court heard Lone’s petition, which it clubbed together with Poonawalla’s petition. The same day, four senior judges of the Supreme Court held an unprecedented press conference to express their dissatisfaction with the chief justice allocating specific cases to specific benches. When asked by the media whether the judges had approached Misra regarding the Loya case, Ranjan Gogoi, next in line to be the chief justice, replied, “Yes.”

The judges’ press conference forced the news channels that had so far censored the Loya story to finally report it. Speaking to Times Now the following day, Poonawala claimed that Dave had tried to bully him into withdrawing his petition. “Dushyant Dave told me that Arun Mishra is Dipak Misra’s henchman and he is not a judge who can be trusted,” Poonawalla told the channel. He said that he refused, and told Dave he “has full faith in the institution.”

Responding to Poonawala in an interview with Bar & Bench, Dave said, “It is my deep regret that I offered to appear for Mr. Poonawalla pro bono since I felt it was a genuine case.” He noted that he had suggested to Poonawalla that they should “mention the matter before the CJI Dipak Misra to withdraw the matter from Justice Arun Mishra’s bench, to which he declined.” Dave stated that he concluded that “it was a set up,” and “a self-serving petition perhaps at the instance of Amit Shah.”

During the hearing, in court number ten, Dave appealed to the bench of Justices Arun Mishra and Mohan Shantanagoudar to not take the matter up, but Mishra told Dave that the bench had heard what he had to say and asked him to sit down. Mishra then asked if the standing counsel for the state of Maharashtra was present in the room. Though it was the first day of hearing in the matter and no notice had yet been issued, the counsel was present. In his 19 January article for Bar & Bench, Dave writes, “In the Court and outside, many lawyers representing various BJP State Governments were present and so was the Additional Solicitor General of India, who is known to be close to Amit Shah.” Mishra instructed the Maharashtra state counsel to obtain a copy of the medical documents pertaining to Loya’s death, and listed the matter for another hearing on Monday, 15 January.

It is surprising that Lone and Poonawalla, both petitioners from Mumbai, approached the Supreme Court to file their petitions even while the Bombay Lawyers Association petition is pending before the Bombay High Court. When I spoke to Lone, he said that, unlike the BLA, he was not looking for a judicial enquiry into the matter. “What we need is an independent investigation by an investigating agency,” he said. Poonawalla, for his part, told me that he wanted the investigation conducted outside the state of Maharashtra, and that he had approached the Supreme Court a month before the high-court petition was filed.

According to Poonawalla, his petition “is not about Mr Loya,” But “about a judge. A judge in himself is an institution.” He said that “there has to be an investigation in the case that is supervised by the court and that has to be time-bound.” But the record of Poonawalla’s petition, available on the Supreme Court’s website, suggests that he was not in a hurry to have the petition heard until the Loya petition before the Bombay High Court approached a hearing.

When a petition filed in the Supreme Court presents any technical defects, the court’s registry returns the petition with a list of defects. The record of Poonawalla’s petition reflects that he filed his petition on 12 December, and that the registry returned it two days later listing 13 defects. A revised petition with all these defects removed was only submitted on 11 January—the same day that Lone filed his petition.

Around a week before Poonawalla filed his petition, his brother Shehzad, who is a leader in the Congress, caused uproar within the party on a different matter. Ahead of an internal election for the post of party president, Shehzad publicly stated that the vote was “rigged” in favour of Rahul Gandhi. Modi, then campaigning in Gujarat for the upcoming state election, lauded Shehzad for his “brave” comment. In the aftermath, Tehseen dissociated himself, his wife and his mother from Shehzad, stating that he did not “know anyone by the name of Shehzad Poonawalla” and that the family was “no longer associated with this gentleman.”

At the second hearing of the petitions in the Supreme Court, Harish Salve appeared for the state of Maharashtra, with Pallav Sisodia appearing for Lone and Varinder Kumar Sharma for Poonawalla. (Both Salve and Sisodia have represented Amit Shah in the Sohrabuddin case.) Salve submitted to the bench that the state was willing to show the medical documents to the petitioners on the condition that these be kept confidential. It is worth noting that both Lone and Poonawalla approached the court in their capacity as citizens, and neither had any specific locus standi in the matter. It is thus questionable why the petitioners should gain privileged access to such information over other citizens. Though neither of the judges sought to recuse themselves during the Supreme Court hearing, the last line of their order on that day read: “Put up before the appropriate bench.”

On 19 January, the cases were again mentioned and heard by the chief justice’s court. The matter has been listed to next be heard on 22 January, by a bench led by Chief Justice Dipak Misra. The Supreme Court’s decision on the petitions will affect every other petition filed in the matter—including the ones pending in Nagpur and Mumbai.