Tuesday, April 24, 2018

Hartosh Singh Bal - Death of Judge Loya: A critical examination of the ECG and the post-mortem demonstrates the failings of the Supreme Court verdict

NB: This article, along with Shanti Bhushan's petition listing ten instances of bench fixing, shows who is committing contempt of court. You cannot utilise your formal authority to throw all principles of fairness (such as not sitting in judgement in a case involving yourself) - to the winds; and then behave as if your status precludes any fair criticism. It is for the Hon'ble judges to answer to their respective consciences as to who has undermined the authority of India's judiciary - the so-called Master of the Roster or those who are criticising his questionable behaviour. DS

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.

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 ECG: 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… read more:
http://www.caravanmagazine.in/vantage/death-of-judge-loya-supreme-court-examination-ecg-post-

see also