Deepa Punjani

| @ | October 9,2018

There are many things to commend about the egalitarian rule of law that emerged in the wake of ideas such as democracy and social justice. But if there is one single idea that permeates through this edifice, it is the idea that justice is for all, no matter one’s religion, gender, status, ideology or occupation. In the eyes of this law, we are all equal. At least in theory. Yet keeping theory and mere idealism aside, there are some who actually pursue this all-embracing, humanistic foundation of law in spirit and in action.

The Bombay Lawyers Association is one of them.

The Bombay Lawyers Association was found in 2012 by lawyer Ahmed Abdi, who has been an ardent follower of Parthasarthy’s school of Vedanta. He travels daily on the Deccan Queen from his house in Lonavala, which is close to Parathsarthy’s ashram to work in Mumbai. That India is home to such interesting possibilities is easy to forget these days.

Ahmed Abdi

 

These cases have far-reaching implications for the health of not only our criminal justice system but also for our judiciary as a whole

I met Ahmed Abdi at his office in the Fort area in Mumbai. I encountered a soft-spoken man whose Association has been at the forefront in seeking justice for two of the most crucial cases of our times. These cases have far-reaching implications for the health of not only our criminal justice system but also for our judiciary as a whole.

I told Ahmed Abdi that he was brave. The 63-year-old lawyer explained with a characteristic dose of Hindu philosophy about vaasnas (desires) and karma (duty) and even spoke of the soldiers who defend our national territory without worrying about the consequences. There was no artifice or rhetoric in his words.

The two cases are closely connected.

Judge Loya at the time (in 2014) was presiding the Sohrabuddin Sheikh murder trial in Mumbai in which Amit Anilchandra Shah, the State Minister for Home in Gujarat when Sohrabuddin was killed in a possibly fake encounter, and now the National President of the BJP, was one of the main accused

They were brought to the notice of our collective consciousness in late 2017 by that other brave man Niranjan Takle whose investigative journalism for the The Caravan magazine looked deeply into the circumstances that surrounded CBI Court Special Judge Brijgopal Harkishan Loya’s death. Judge Loya at the time (in 2014) was presiding the Sohrabuddin Sheikh murder trial in Mumbai in which Amit Anilchandra Shah, the State Minister for Home in Gujarat when Sohrabuddin was killed in a possibly fake encounter, and now the National President of the BJP, was one of the main accused, charged by none other than the CBI in four separate but related charge-sheets.

The accusations levelled by the CBI against Amit Anilchandra Shah were serious. In fact, the trial had been transferred from Gujarat to Mumbai by the Supreme Court (in 2010) because there was sufficient apprehension that if allowed to be continued in Gujarat, it would not be a fair trial. When Judge M B Gosavi came on board after Judge Loya’s demise in 2014, it was within days that Amit Anilchandra Shah filed a discharge application, which Judge M B Gosavi accepted. The CBI did not challenge this discharge application, which they could have.

It is the CBI’s inaction towards this discharge application that the Bombay Lawyers Association has challenged in a Public Interest Litigation (PIL) early this year in January 2018

It is the CBI’s inaction towards this discharge application that the Bombay Lawyers Association has challenged in a Public Interest Litigation (PIL) early this year in January 2018.

Rubabuddin Shaikh must have been under enormous pressure to withdraw his revision application challenging Judge M B Gosavi’s order that discharged Amit Anilchandra Shah

There have been revision and criminal applications and even a writ petition challenging the discharge application earlier following Judge M B Gosavi’s order but they came to naught. Sohrabbudin’s brother Rubabuddin Shaikh, who by then had been fighting the battle for ten years, eventually withdrew his revision application. In the intervening application by Rajesh Kamble, followed by his writ petition, and then in the criminal application filed by Harsh Mander on this behalf, it has been contended by both these alert citizens that Rubabuddin Shaikh must have been under enormous pressure to withdraw his revision application challenging Judge M B Gosavi’s order that discharged Amit Anilchandra Shah. In these pleas, the Court rejected Rajesh Kamble and Harsh Mander’s locus standi thereby dismissing their applications and petitions.

For the uninitiated, the concept of locus standi refers to one’s authority to bring in a case. Naturally it has its uses, especially in civil cases. However, jurisprudentially speaking our courts have expanded on the concept in PILs over the years, thereby relaxing its strict interpretation to a party that is directly aggrieved or affected.

In its PIL the Bombay Lawyers Association has prayed that the Bombay High Court issue a writ of mandamus (or any other appropriate directions) to the CBI to challenge Amit Anilchandra Shah’s discharge application

In its PIL the Bombay Lawyers Association has prayed that the Bombay High Court issue a writ of mandamus (or any other appropriate directions) to the CBI to challenge Amit Anilchandra Shah’s discharge application. In the same PIL they had also asked the court to inquire into the grave irregularity committed by the administrative office of the Registrar General of the Bombay High Court in 2014 when that office sanctioned Judge J T Utpat’s transfer to Pune in violation of the Supreme Court’s clear directive that one judge from the very beginning to the very end will preside over the trial. This prayer now stands withdrawn.

Judge J T Utpat’s transfer is one among the many glaring oddities that stand out in the Sohrabbuddin trial

Judge J T Utpat was the first Special CBI judge who had been originally assigned the task. After him came Judge Loya and then finally Judge M B Gosavi. Judge J T Utpat’s transfer is one among the many glaring oddities that stand out in the Sohrabbuddin trial.

Today, witnesses are falling fast and thick in the ongoing trial, as a majority of them have turned hostile. Anyone who has followed the proceedings that go back to 2005 will know that they have been vitiated from the very beginning.

The CBI had got involved at the direction of the Supreme Court in 2010 for in the preceding years there was a lot that was clearly going awry. In fact one of the key directions of the Supreme Court to the CBI therefore was that the CBI authorities should investigate all aspects of the case relating to the killing of Sohrabbuddin and his wife Kauser Bi including the alleged possibility of a larger conspiracy.

In the same year the CBI submitted the four charge-sheets that dealt with the fake encounter killings of Sohrabuddin, his wife Kauser Bi (in 2005) and the police constable Tulsiram Prajapati (in 2006) who was supposedly an eye witness to Sohrabbudin and his wife’s encounters, and which the State of Gujarat and the Gujarat police had kept vehemently denying. The CBI added six other persons in addition to the thirteen who were already accused by the Gujarat Police in 2007. The CBI submitted that a larger conspiracy was afoot that involved high-ranking police officers of the States of Gujarat and Rajasthan.

Amit Anilchandra Shah was accused no. 16 by the CBI. It was the CBI’s accusation that Amitbhai Shah was the lynchpin of the conspiracy. But by 2014 the CBI’s tenor had changed. The BJP was also well on its way to winning a majority in the Lok Sabha

Amit Anilchandra Shah was accused no. 16 by the CBI. It was the CBI’s accusation that Amitbhai Shah was the lynchpin of the conspiracy. But by 2014 the CBI’s tenor had changed. The BJP was also well on its way to winning a majority in the Lok Sabha.

The Bombay Lawyers Association’s PIL that is awaiting judgment (reserved by the Bombay High Court) has a notable subtext. It wants the public to restore their faith in the CBI. The CBI, which is supposed to be not only our country’s premier investigation agency but also a prosecuting agency, must therefore do its job independently and fearlessly under the circumstances, and especially in the light of its own submissions.

What followed thereafter can only be best described as a deliberate strategy that whisked away the petition from the Bombay High Court and placed it before the Supreme Court for its scrutiny along with a clutch of other petitions and intervening applications in the matter

Earlier in 2017, the Bombay Lawyers Association following the hue and cry over Niranjan Takle’s article about Judge Loya in The Caravan had moved the Bombay High Court to demand an independent inquiry and probe into the Judge’s death. What followed thereafter can only be best described as a deliberate strategy that whisked away the petition from the Bombay High Court and placed it before the Supreme Court for its scrutiny along with a clutch of other petitions and intervening applications in the matter.

The Supreme Court’s order in April 2018 dismissed all the petitions that had sought an independent probe. The former CJI Dipak Mishra was one of the three judges that had formed the bench along with Justices Chandrachud and Khanwilkar. This judgment has been criticised by various people, including A P Shah who was a former Chief Justice of the Delhi High Court. Among the main criticisms of the judgment is that the apex court’s bench had approached the case as a criminal trial instead of considering the main prayer that an independent investigation be ordered.

Bombay Lawyers Association is planning to move the Supreme Court with a curative petition in the Judge Loya case, which is in a way the last resort

Following this, a review petition by the Bombay Lawyers Association in July 2018 was yet again dismissed by the same bench. However, the Bombay Lawyers Association is planning to move the Supreme Court with a curative petition in the Judge Loya case, which is in a way the last resort. Otherwise we will never settle the controversy surrounding Judge Loya’s death. That, very sadly, will be one of the greatest blows to the heart of our judiciary.

But why must we all care?

Our criminal justice system stands bitterly exposed and debilitated. Eventually it all bodes unwell for our polity and the fragile rule of law that organisations like the Bombay Lawyers Association seek to uphold under the most tenacious of circumstances

Many brave lawyers and judges have been cast away. Judge Loya is not the first certainly. Yet his case presents all of us a moment of deep reflection. We can only let that moment pass to our peril. Similarly if the CBI cannot stand up to its own earlier assertions in the Sohrabbuddin case or at least present a justified report of their reasons for not having challenged Amit Anilchandra Shah’s discharge application vis-a-vis all the charges the agency had levelled against him, our criminal justice system stands bitterly exposed and debilitated. Eventually it all bodes unwell for our polity and the fragile rule of law that organisations like the Bombay Lawyers Association seek to uphold under the most tenacious of circumstances.

For them the fight will always be equal, touching upon that fleeting but essential cornerstone of the fair, impartial trial in criminal law– whether it be for Sohrabbuddin, the more ordinary henchman, or for the less than ordinary Judge Loya.

Read the Bombay Lawyers Association’s PIL.

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