The Supreme Court judgment on petitions demanding an inquiry into the judge BH Loya’s death begins by stating that the “petitioners seek an inquiry into the circumstances of the death” of the judge. It concludes: “The documentary material on the record indicates that the death of Judge Loya was due to natural causes.” Over its span, the judgment ends up doing exactly as the petitioners sought—inquiring into the circumstances surrounding Loya’s death—but without enabling the scope of investigation that an independent inquiry would have allowed.
Two medical documents were essential to determining whether the circumstances surrounding Loya’s death were suspicious—an ECG purportedly conducted on Loya at Dande Hospital shortly before his death, and the post-mortem report prepared at the Government Medical College in Nagpur. Though there are a range of issues in the judgment that need to be examined, even a scrutiny limited to the manner in which it deals with these documents is enough to indicate that an inquiry broader in scope than the court allowed itself would have resulted in a different conclusion.
The judgment relies heavily on the testimonies that four judges who said they were with Loya on the night he died—Shrikant Kulkarni and SM Modak, who said they travelled to Nagpur from Mumbai with Loya, and VC Barde and Roopesh Rathi, who were serving in Nagpur at the time—submitted to Maharashtra’s State Intelligence Department, or SID, as part of its “discreet inquiry” into Loya’s death. The state then presented these before the court. But it is important to note that the judges’ testimonies only form an account of the hours preceding and immediately after Loya’s death—they can only confirm whether an ECG test was conducted or a post-mortem was ordered. Whether an ECG or a post-mortem indicated that Loya suffered a heart attack, and whether these medical documents were in any way manipulated, cannot lie within the judges’ knowledge.
Details brought to light by The Caravan—most of which the court did not consider, and some that it set aside on grounds that do not stand scrutiny—cast strong doubts on the veracity of the ECG record and the post-mortem report. Moreover, when considered in conjunction with the fact that leading forensic experts differ over the conclusions stated in the post-mortem report and that The Caravan uncovered reasonable grounds to suspect that the report omitted vital information, there is little left to justify the court’s certainty that Loya died of natural causes. This reading does not even call into question the reliability of the judges’ testimonies or cast doubt on their integrity, but is, in fact, based on taking their accounts at face value.
The court’s observations and conclusions on the ECG state that
a considerable degree of emphasis has been placed on the statement of Judge Rathi that the nodes of the ECG machine at Dande hospital were not working. Based on this, it has been seriously urged that in fact no ECG was done at Dande hospital. Judge Shrikant Kulkarni in his statement dated 24 November 2017 has stated that “emergency treatment” was given to Judge Loya at Dande hospital. Judge SM Modak states that after an initial check-up, the doctors at Dande hospital advised shifting the patient to another hospital. Judge Vijay Barde who was present at Dande hospital specifically stated that the medical officer on duty there examined (“checked-up”) Judge Loya “by ECG, blood pressure etc. as per their procedure”. Judge Rathi has stated that at Dande hospital, time was wasted because the nodes of the ECG machine were broken and the machine was not working. This statement of Judge Rathi must, however, be weighed with the doctor’s progress notes at Meditrina hospital. The death summary… specifically adverts to the fact that the patient was taken to Dande hospital earlier where an ECG was done. Dr Dande has made the same statement. The progress notes also note a “tall ‘T’” in the anterior lead which indicates that the ECG was seen by the doctors attending to Judge Loya at Meditrina hospital. These progress notes are contemporaneous, since they also form part of the communication addressed by Dr NB Gawande at Meditrina to the PSI at Sitabardi on the same day after the judge had been brought dead to the hospital. As a matter of fact, it is this very ECG which forms the subject matter of the submissions which have been urged by one of the intervenors, for whom Mr Prashant Bhushan appears. Having regard to the fact that the ECG has been specifically mentioned in the progress notes of the doctor at Meditrina hospital, we find no reasonable basis to infer that no ECG was done at Dande hospital.
Only two of the four judges mentioned the ECG in their statements. The first, Barde, stated that the medical officer at Dande Hospital “checked up” Loya “by ECG, Blood Pressure etc. as per their procedure.” Though the court interprets it as such, this statement is not a categorical assertion that an ECG was done. A categorical statement in this regard is actually made by Rathi, who, as the court notes, told the SID that “at Dande hospital, time was wasted because the nodes of the ECG machine were broken and the machine was not working.” This is not a passing reference—Rathi clearly states that the nodes of the ECG machine were broken and indicates that though the doctor attempted to conduct the test, the machine did not work.
The judgment repeatedly asserts there is no reason to doubt the testimony of the judges. But an inquiry would not have cast any doubt on their accounts—rather, it would have allowed the judges to dispel the lack of clarity on crucial points such as the ECG.
Instead of ordering such an inquiry, the court chose to disregard Rathi’s clear and specific eyewitness testimony on circumstantial grounds. The judgment states that his account “must be weighed” with the doctor’s progress notes said to have been prepared at Meditrina hospital. The court notes that this document “specifically adverts to the fact that the patient was taken to Dande hospital earlier where an ECG was done.” It further notes that the progress notes refer to “a ‘tall ‘T’ in the anterior lead” in the ECG said to have been conducted at Dande Hospital, indicating that the doctors attending to Loya at Meditrina saw the record. The court adds: “These progress notes are contemporaneous, since they also form part of the communication addressed by Dr NB Gawande at Meditrina to the PSI at Sitabardi on the same day … Having regard to the fact that the ECG has been specifically mentioned in the progress notes of the doctor at Meditrina hospital, we find no reasonable basis to infer that no ECG was done at Dande hospital.”
An inquiry that would not have been restricted to the material before the Supreme Court—as the petitioners sought—would have established that there is strong reason to doubt this chain of events elaborated by the Supreme Court.
It is important to the note that though Mukul Rohatgi, the counsel for the state of Maharashtra, repeatedly referred to the ECG during his arguments, the state did not submit any ECG record to the Supreme Court. The ECG is referred to in the SID report, in the statement given by Pinak Dande, the owner of Dande Hospital. The report does not include a copy of this ECG record either. In fact, Dande Hospital does not appear to possess the original record—Pinak Dande told the news website Scroll that the hospital did not have the ECG as Loya was referred to a cardiac hospital and that Dande “maintains records only for patients who are admitted.”
The only ECG available in the public domain is one published by the Indian Express in a report dated 27 November, a week after The Caravan’s first report on Loya’s death, by Niranjan Takle. It was pointed out on social-media that this ECG included an incorrect date. Prashant Bhushan, a counsel for an intervening party in the matter, presented this ECG to the court as part of his submissions. No satisfactory explanation for the discrepancy in the date was provided in court, nor did the state produce any evidence to show that the document published by The Indian Express was indeed the ECG referred to in the progress report.
The Supreme Court’s conclusions on the authenticity of the ECG are based on the progress notes included in the Maharashtra’s SID report from its “discreet inquiry.” In its summary of the SID’s findings, the judgment states:
The ‘progress notes’ of the doctor at Meditrina hospital indicate that a post-mortem was advised. This sets at rest the doubts raised in the Caravan article about who had recommended the post-mortem … Meditrina hospital furnished information of a medico-legal case to Sitabardi police station, of the patient being brought dead.
There is an interesting sleight of hand in this version of events. Per standard procedure, the medico-legal certificate, or MLC, is prepared on the basis of the doctor’s progress report, which contains a death summary. The MLC is then sent to the police. In this case, the doctor’s progress report, which was submitted to the court by the state of Maharashtra, contradicts the contemporaneous MLC that was sent to the police.
Ninad Gawande, the medico-legal consultant at Meditrina, who signed the MLC, told The Caravan that he did not see an ECG at the time that Loya was brought to Meditrina, and that he only saw it when it was “brought over” the next day. According to Gawande, it was precisely the absence of an ECG that led him to note in the MLC that the cause of Loya’s death was “undetermined.”
Gawande added that the ECG chart was “brought over” the next day. “It was showing changes … suggestive of myocardial infarction,” he continued. “Suppose if they might be having the previous ECG, I think … we would also have diagnosed the patient as [having a] myocardial infarction and might be that, we might not have informed the police regarding this thing. Because if the ECG was there. The main scene at that time was, there was no ECG. ”
When Atul Dev, who reported the story, asked Gawande to confirm that the ECG chart from Dande Hospital only came to Meditrina a day after Loya’s death, he said that he had “seen it the next day.” Gawande added: “When it came here I am not sure, because I don’t think the ECG came … before the declaration of [the death of] the patient, the ECG, I had not seen the ECG. The ECG was not there.”
If the ECG purportedly conducted at Dande Hospital was not available at Meditrina in the morning on 1 December, when Loya was brought there, the authenticity of a progress report that cites such an ECG is itself suspect. Gawande suggested to The Caravan that if, at the time that he wrote the medico-legal report, he had seen the ECG mentioned in the progress report submitted to the court, he would not have written that the probable cause of death was “undetermined” and might not even have informed the police. Further, no official ECG record was ever submitted to the court. A broader inquiry, which would have taken these troubling facts into account, would likely have reached a different conclusion regarding the authenticity of the ECG record referred to by the state of Maharashtra.
The Post-Mortem Report
Detailing the documentary evidence with regards to the post-mortem, the judgment notes:
Government Medical Hospital, Nagpur received the dead body at 10 am on 1 December 2014 for post-mortem. … The inquest panchnama notes the condition of the dead body and does not find any mark of injury or assault. …The post-mortem report of 1 December 2014 records that there is no evidence of bodily injury … The probable cause of death is recorded as “coronary artery insufficiency”.
The Caravan showed the relevant medical documents to one of India’s foremost forensic experts, Dr RK Sharma—the former head of the Forensic Medicine and Toxicology Department at the All India Institute of Medical Sciences in Delhi, and the president of the Indian Association of Medico-Legal Experts for 22 years. Sharma studied Loya’s post-mortem report and the related histopathology report, as well as a report that accompanied samples of Loya’s viscera that were sent for chemical analysis, and the results of the analysis. He dismissed the official claim that Loya died of a heart attack. According to Sharma, the documents show signs of possible trauma to the brain, and could even point to poisoning.
Sharma’s opinion, which was published in The Caravan, became part of the material the court considered due to a petition filed by the senior advocate Prashant Bhushan on behalf of The Centre for Public Interest Litigation, to intervene in the matter. The judgment notes that in his application, Bhushan filed additional material endorsing what Sharma had stated.
The application for intervention states that the intervenor obtained a set of documents from Caravan, including the histo-pathology report and a copy of the ECG done at Dande hospital. [As noted earlier, this was a copy of the ECG record published by the Indian Express.] Mr Prashant Bhushan claims to have forwarded the ECG and histo-pathology report to Dr Upendra Kaul, a former professor of Cardiology at AIIMS. Mr Prashant Bhushan himself addressed e-mail to Dr Upendra Kaul seeking his professional opinion on certain queries. Dr Kaul responded that the ECG “most unlikely.. has no evidence of a recent myocardial infarction”. Moreover, it has been stated that the histo-pathology of the heart mostly indicates that it was normal and that the coronary artery block in the LAD “could be” an innocent bystander. The application for intervention also states that Mr Prashant Bhushan who is a member of the intervenor has spoken to other reputed cardiologists who are of the same opinion.
The court then cited the state of Maharashtra’s response:
In response, Mr Mukul Rohtagi has placed on the record copies of two letters dated 14 and 16 February 2018 addressed to Dr Sidharth Gupta, Head of the Department of Forensic Medicine at AIIMS by the Senior Police Inspector at PS Sadar, Nagpur. A clarification was specifically sought in regard to the opinion furnished by Dr RK Sharma. In a response dated 3 March 2018, Dr Abhishek Yadav, Assistant Professor and Member Secretary, Departmental Committee, Department of Forensic Medicine, AIIMS has stated that besides constituting a committee of three doctors to examine the issue, AIIMS had addressed a letter seeking a clarification from Dr RK Sharma. The letter extracts the following reply sent by Dr RK Sharma to AIIMS:
“Thanks for your mail, I would like to state that I have been grossly misquoted by Caravan magazine regarding death of Judge Loya. The conclusions drawn are imaginary. I had general discussion with the reporter. I do not agree with contents of report published which are ascribed to me. I have not given any report regarding death of Judge Loya.“
The letter dated 3 March 2018 from AIIMS accordingly contains the following clarification:
“In continuation of the previous reply dated 16.2.2018, it is added that no doctor from the Department of Forensic Medicine has given any opinion about the death of Judge Loya in official or individual capacity to the Caravan Magazine or any other media agency. It is further reiterated that AIIMS New Delhi has a fixed protocol to respond only to official written request from the Government agency or Honourable Court with all the Mandatory corroborative investigating documents including Medical Documents for Medicolegal opinion and without the same holistic opinion can’t be formed for the perusal by law.”
The clarification issued by AIIMS indicates that Dr Sharma has categorically stated that he was grossly misquoted by Caravan magazine and that he does not agree with the contents of the report ascribed to him.
Rohatgi’s submissions are interesting in themselves: Dr RK Sharma is no longer employed at AIIMS, so the institute has no bearing on this issue. Yet, it assumes a role in the attempt to discredit Sharma’s account. The letter placed in court was not collected by the state of Maharashtra, but by AIIMS. It is puzzling that the Maharashtra police chose to approach AIIMS, Sharma’s former place of work, but did not approach The Caravan to inquire about the basis for its report. If it had done so, it would have been able to access the documentation that clearly falsifies the response that AIIMS said it received from Sharma, which the state of Maharashtra subsequently submitted to the court. The Caravanreproduced the WhatsApp exchanges between Dev, the reporter, and Sharma, which clearly establish that each quote and conclusion that was published in the article was not only authentic, but had been personally approved by the doctor. It is clear that he gave a nod to the entire scope of the article published in The Caravan.
It is evident that even as the petition was being heard, the state of Maharashtra was attempting to paper over any holes in the “discreet inquiry” conducted by its SID, and ignored any public evidence that did not back its versions of events. The judgment fails to note this—rather, it relies on the selective, limited and partial inquiry conducted by the state, and uses it to reject the petitioners’ demand for an independent probe.
It further questions Bhushan’s role. The court notes that the advocate made an effort “to collect evidence to somehow bolster the case of the petitioners, acting in his personal capacity.” It classified the questions Bhushan sent to Dr Upinder Kaul as “leading.” The court added that on 11 February 2018, a senior police inspector at the Sadar police station in Nagpur shared the medical documents pertaining to Loya’s death with Dr Harish Pathak, a professor and the head of the department of forensic medicine at KEM Hospital In Mumbai. “Dr Harish Pathak has in a detailed and considered opinion categorically stated that the conclusion of the post-mortem that the death was due to coronary artery insufficiency is valid and is in accordance with medical knowledge on the subject,” the court said. It added that
We are not really considering here whether the opinion of Dr Pathak should be preferred to what was opined by Dr Kaul. The point of the matter is that facts have emerged from the record which indicate that a carefully orchestrated attempt has been made during the course of these hearings on behalf of the Centre for Public Interest Litigation to create evidence to cast a doubt on the circumstances leading to the death of Judge Loya. In their practice before this court, Counsel are expected to assist the court with a sense of objectivity in aid of justice. What has happened here is that Mr Prashant Bhushan has adopted a dual mantle, assuming the character of a counsel for the intervenor as well as an individual personally interested on behalf of the intervening organisation of which he is a member. He has gone to the length of personally collecting evidence to somehow bolster the case. The manner in which the opinion of Dr Kaul was obtained on the basis of a laconic questionnaire leaves much to be desired and is a singular reflection on the lack of objectivity which is to be expected from counsel appearing before this Court. This has bordered on an attempt to misrepresent the facts and mislead the court.
But the Supreme Court’s discomfort over Bhushan’s dual role cannot be an argument against the veracity of the material he has presented. Moreover, the material subsequently published by The Caravan made it clear that the article Bhushan submitted to the court was Sharma’s well-considered opinion on the post-mortem report and related documents—countering the state’s claim regarding Sharma’s testimony. This results in a situation where leading experts have presented differing opinions over the conclusions stated in the post-mortem report—a fact that compounds the need to order an inquiry instead of foreclosing it.
This argument is made even stronger by the additional material that has been uncovered by The Caravan, which has not come up before the Supreme Court in any form but suggests that the post-mortem examination was manipulated.
Through an extensive investigation, The Caravan found that the post-mortem examination of Loya’s body was directed by Dr Makarand Vyawahare, then a professor in the forensic-medicine department at the Government Medical College in Nagpur, and now the head of the forensic department at a separate government institution. Nikita Saxena, who conducted the investigation, reported that Vyawahare—the brother-in-law of Sudhir Mungantiwar, the finance minister of Maharashtra—personally participated in and directed the post-mortem examination, even shouting down a junior doctor who tried to question him during the examination of Loya’s head, the back of which had a wound. This observation was not noted in the post-mortem report. Despite his involvement, Vyawahare’s name does not figure on the final report, nor on any documents prepared at the GMC.
These findings tallied with the details observed by Loya’s family members upon seeing his body, which were included in The Caravan’s first report on Loya’s death. Loya’s sister, Dr Anuradha Biyani, a medical doctor, said that when she first saw Loya’s body, she noticed “bloodstains on the neck at the back of the shirt.” She wrote in a diary entry made shortly after Loya’s death that there was “blood on his collar.” Sarita Mandhane, another of Loya’s sisters, told The Caravan that she saw “blood on the neck,” that “there was blood and an injury on his head … on the back side,” and that “his shirt had blood spots.” Harkishan, Loya’s father, said “his shirt had blood on it from his left shoulder to his waist.”
Subjected to critical examination, neither the ECG record nor the post-mortem report support the judgment’s conclusion that Loya died a natural death. The fact is that the court did not receive an official ECG record, and that public evidence casts serious doubt on the authenticity of the only available ECG record and suggests that the post-mortem was manipulated. All of this only serves to make the need for an inquiry into Loya’s death even more pressing.