Jayalalithaa's Death : Inquiry Commission Violating Natural Justice Principles, Appolo Hospital Tells Supreme Court

Senior Advocate C Aryama Sundaram appearing for Apollo Hospitals argued before the Supreme Court on Wednesday that the proceedings before the Justice (retired) A. Arumughaswamy Commission of Inquiry, which has been constitute to probe the circumstances relating to the death of former Tamil Nadu Chief Minister Jayalalithaa, was in violation of the principles of natural justice and that the CoI was only a fact finding body.

The bench of Justices S Abdul Nazeer and Krishna Murari was hearing a special leave petition filed by Apollo Hospitals against Madras High Court's order which had rejected Apollo Hospital's objections to an inquiry commission set up to probe the death of Jayalalithaa looking into aspects of treatment given to her. The petition before the Top Court was filed alleging that the functioning before the CoI was "replete with bias".

The State had appointed the inquiry commission headed by Justice Arumughaswamy, a retired Madras High Court judge, on September 25, 2017. The Commission's reference was to examine the circumstances which led to the hospitalisation of Jayalalithaa on September 22, 2016 and the nature of treatment given to determine the cause of hospitalisation.

The Supreme Court bench headed by the then Chief Justice Ranjan Gogoi had stayed proceedings of an inquiry commission set up to probe the death of then Tamil Nadu Chief Minister J Jayalalithaa at Apollo Hospitals in Chennai in 2016.

Submissions By Senior Advocate C Aryama Sundaram for Apollo Hospitals

Appearing for Apollo Hospitals, Senior Advocate C Aryama Sundaram commenced his submissions by contending that the proceedings before the Justice (retired) A. Arumughaswamy Commission of Inquiry was in violation of the principles of natural justice namely nemo judex in causa sua and right to fair hearing.

Referring to Section 8B of the Commission of Inquiry Act, 1952 ("Act") which deals with Persons likely to be prejudicially affected to be heard, Senior Counsel submitted that although the commission commenced its proceedings and issued notice to MD of Apollo Hospitals to Dr Reddy but notice lacked material particulars and no material was furnished to the hospital to enable him to prepare his defence.

"Even Today, my friends would say that 90% of the inquiry is over but even today after this also I've not been furnished the documents. How can I have faith in the Commission?," Senior Counsel submitted.

Commission Of Inquiry Has Misread All Its Functions; It Is Just A Fact Finding Body

To elucidate his submission that the approach and the procedure adopted by the Commission was wrong, Senior Counsel referred to the judgements in TT Antony v State of Kerala 2001 6 SCC 181 and Kehar Singh & Ors vs State (Delhi Admn.) 1988 3 SCC 609 to highlight on the nature of proceedings before the Commission.

"What is the purpose of the commission of inquiry? It carries a weight and in the decision making process it has to be considered. There are no accused, accuser, no specific charges. The Commission misread all its functions by comparing itself with the National Adjudication Forum and the Commission calls itself a court," Senior Counsel further added.

Justice Nazeer at this juncture asked Senior Counsel if there were any Rules framed under the Commission of Inquiry Act to regulate the procedure of the Commission of Inquiry.

"Regulations were framed u/s 8 of the Commission of Enquiry Act," submitted Senior Advocate C Aryama Sundaram.

"There are 1972 rules that have been framed under the Tamil Nadu Act. After the Commission of Inquiry was formulated, rules were notified u/s 8 of the Act," Senior Advocate Ranjit Kumar for the Commission of Inquiry submitted.

While Senior Counsel for Apollo Hospitals was making his submissions, Justice Abdul Nazeer, presiding judge of the bench posed a question to Senior Advocate Dushyant Dave appearing for the State of Tamil Nadu,

"Now the government has changed, do you still have the same stand or is there any change of thinking?"

"So far as inquiry is concerned, it must go on. There's no issue at all. If there's any other suggestion, I may put it to the government. The Government is bound by the law," submitted Senior Advocate Dushyant Dave.

"We want to be very frank with you. We may have to criticise the judge," remarked Justice Nazeer.

"I understand your lordship's anxiety. I don't want the inquiry to be stopped. I will be able to show that there's no apprehension," Senior Advocate Dave replied.

"Ultimately we'll have to deal with the substance of the matter and the technical aspects. What we suggest is let Mr Sundaram complete his arguments and in the meantime, you take instructions, make up your mind," Justice Nazeer said to Senior Advocate Dushyant Dave while expressing its inclination for the State Government to consider the CoI's reconstitution.

At this juncture, Senior Advocate Ranjit Kumar appearing for the CoI entered appearance and remarked that, "For reconstitution. I have a right to get that view dispelled. Reconstitution should not come in the way of my submissions. Judge is the human being who's been affected by all the arguments. Whether it will be reconstituted or not, it's a thing but there needs to be a reason for the re-constitution. Reconstitution will be a reflection of the judge who's heading the commission. Lordship will give me all the time to dispel what has been accused of the judge. Even if it is reconstituted, there would be questions as to why the same was re constituted. 143 hearings."

"Supposingly you fail in your endeavour, whatever allegations have been made against the Judge. If you fail or pass, we'll have to give our findings. This is to prevent the situation of making any comment against the retired judge of the HC, suppose we find that the proceedings are vitiated based on the procedure adopted," remarked Justice Krishna Murari. 

"A lot of things have been said, which I need to dispel. It will be a very sad reflection on the judge if the commission is reconstituted. There would be questions as to why the commission was reconstituted," submitted Senior Advocate Ranjit Kumar.

"We wish to diffuse the situation. Ultimately we'll have to pass the order. If Dave Agrees," Justice Nazeer remarked.

Aspect Of Rule Against Bias Is Justice Should Not Only Be Seen To Be Done But Also Done

Senior Counsel Sundaram submitted that to identify as to whether legal bias has been made out or not, the test should be whether the person against whom bias has been exercised had a reasonable apprehension of the same being made out or not.

Contending that one of the aspects of Rule Against Bias was Justice should not only be seen to be done but also done, Senior Counsel referred to the judgements in Justice P.D. Dinakaran vs Hon'ble Judges Inquiry Committee, Manak Lal v. Dr.Prem Chand Singhvi AIR 1957 SC 425 and Vijay Bhaskar Reddy v State of Andhra Pradesh to show how bias was an integral part of natural justice.

"Today if the judge says on affidavit that he would not exercise any bias, I would still have it in my mind that the person is exercising bias. Why did he not think about my reputation while he was making statements in the media? Are there 2 different yardsticks to be adopted to give preferential treatment to the judge?," Senior Counsel for Apollo Hospitals added in this regard.

Proceedings Will Have To Be Quashed If They Are Vitiated

To submit that the consequence of bias was quashing of proceedings instituted before the Commission of Inquiry, Senior Counsel relied on the judgements in NK Bajpai v Union of India 2012 4 SCC 653 and A. K. Kraipak & Ors. Etc vs Union Of India & Ors.

"I should be given notice of all the evidence that is being relied on against me. As per the principles of Natural Justice, the Commission of Inquiry should've given the material and since I wasn't given, I had to come before this court," Senior Counsel further added.

Challenge To Proceedings Before Inquiry Not Premature

To aver that the challenge to the proceedings before the Commission of Inquiry was not premature, Senior Counsel relied on the Top Court's judgement in State Of Bihar vs Lal Krishna Advani & Ors. 2003 SCC 361 and Justice P.D. Dinakaran vs Hon'ble Judges Inquiry Committee.

"I'm not premature, if I'm pleading bias, I request for quashing the same. If I've waited for the report and the report came against me, how can it be premature," Senior Counsel added.

During the course of hearing, Senior Advocate C Aryama Sundaram while referring to the The Commissions Of Inquiry (Central) Rules, 1972 framed u/s 8 of the Act submitted that the Commission of Inquiry had not even followed their own Rules.

"Come with fresh ideas and not old ideas," bench said to Senior Advocate Dushyant Dave appearing for the State of Tamil Nadu while adjourning the matter for Tuesday (November 23, 2021)

Gross Abuse Of Process Of Court And Very Serious: Senior Advocate Dushyant Dave

While the bench was adjourning the matter, Senior Advocate Dushyant Dave with regards to the suggestion posed by the bench with regards to reconstitution of the Commission of Inquiry while referring to judgement reported as 1993 1 SCC 302 submitted that re constitution of the Commission of Inquiry was not allowed.

Case Title: M/S Apollo Hospitals Enterprises Ltd. v. The State Of Tamil Nadu| SLP (Civil) 10189/2019

Click Here To Read/Download The Order