Jayalalithaa's Death: Adequacy Of Appollo Hospital's Treatment Within Scope Of Commission Enquiry, TN Govt Tells Supreme Court

Senior Advocate Dushyant Dave appearing for State of Tamil Nadu argued before Court today that allegations of bias by Apollo Hospitals is premature and that the scope of the inquiry undertaken is within the jurisdiction of the Commission.

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".

Background of the Matter

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 hospitalization of Jayalalithaa on September 22, 2016 and the nature of treatment given to determine the cause of hospitalization.

Senior Advocate C Aryama Sundaram appearing for Apollo Hospitals on Wednesday had argued 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.

Submission by Senior Advocate Dushyant Dave for the State of Tamil Nadu

Looking into adequacy of treatment is within the scope of the CoI

Senior Counsel began his submissions by taking the Court through the Writ Petition filed by the Appellants to argue that reliefs prayed for are not to remove the Commission or set aside the orders of the State Government appointing the Commission and that the relief is only in respect of alleged expansion of the scope of the inquiry. He further submitted that "bias" is neither argued nor pleaded for the purpose of removal of the incumbent Commissioner or setting aside the notification and that "the allegations of bias are subsumed by the fact that all they want is that the Commission not go into the aspect of medical competency of Apollo Hospitals or the treatment given." He argued that the scope of the inquiry entrusted to the Commission included the examination of the reasons or causes for the Late Chief Minister's death which would include inquiry into the kind of treatment that was given and hence, the petition ought to be dismissed.

"If the nature of treatment is to be examined would it not include questions over adequacy or inadequacy?", he submitted.

Argument of bias is premature, CoI is only fact-finding in nature

Dave also submitted that the argument of bias was a complete "non-starter" as the Commission was only a fact-finding body which doesn't have to do any adjudication. "The government has to accept the Report, submit an action taken report and submit it before the Assembly...it is at that stage that the cause of action, if any, will arise. At this stage it is only a presumption. How can you assume at this stage just because some observations have been made?", he said.

He continued, "No prejudice is caused at this stage and if merely on observations the constitution of the Commission is to be changed it would be completely unacceptable." Senior Counsel further submitted that invoking principles of natural justice cannot be invoked as "no rights are being decided, there is no lis here. It is only a fact-finding inquiry. Only when there is an adjudication and there is bias jurisprudence can be invoked and facets of natural justice be explored."

"Till the government decides to accept the report and take action-civil or criminal- there is no cause of action for Apollo Hospitals," he argued.

To support his argument, SA Dave made reliance on TT Antony v State of Kerala 2001 6 SCC 181 and Sri Ram Krishna Dalmia v Shri Justice T.R.Tendolkar 1958 AIR 538.

Senior Counsel also pointed out that Appellants had moved to the Court on the arguments of bias and that the Commission did not have the scope to enter into questions of adequacy of medical treatment after having attended proceedings for one year. He further pointed out that 50 doctors had already been examined in the matter. The crux of his argument was that the Doctrine of Waiver clearly applies against the Petitioner. In support of this argument Senior Counsel relied on Manak Lal v. Dr.Prem Chand Singhvi AIR 1957 SC 425.

Notification setting up the Commission of Inquiry is valid

Dave further submitted that the question of quashing the notification does not arise as the Notification setting up the Commission of Inquiry was legal. In support of his argument, he drew the Courts attention to the decision by a Bench led by Justice Indira Banerjee in B. Bala Murugan v/s The Government of Tamil Nadu which dismissed a SLP seeking quashing of notification setting up the Commission of Inquiry. In response to this submission, Justice Nazeer noted that the Bench was not informed about this aspect earlier.

To support his argument that there is no power to substitute members of the Commission, Dave made reliance on a Supreme Case- 1993 1 SCC 302. Nevertheless, he submitted that if the Court has any apprehension then the government would have no difficulty in enlarging the commission. In this regard, Senior Counsel made reliance on S.8A to submit that even in case of "replenishment" of the Commission the inquiry may continue from the stage at which the change took place.

Regarding the Court's suggestion on the previous day of the proceedings whether the membership of the Commission could be enlarged- he submitted that the government is agreeable to enhancing the membership of the Commission and appointing a former judge of the Supreme Court to the Commission.

Justice Abdul Nazeer intervened to ask about the strength of the Commissions- "Generally, it should be one or three or five. We don't know the outcome and there may be divergent opinions."

Dave responded that it might not be necessary to enter into those questions at this point as "90% of the work is over". He continued, "We can bring in more government doctors to allay any apprehensions."

Justice Nazeer suggested whether a technical member could be made a member of the Commission. "If we have one technical member and one Supreme court judge it looks very solid. Technical member means any professional person - a doctor."

Dave wondered if any technical member would want to come in at this stage in this "controversial issue."

Senior Counsel concluded his submissions by pleading that the CoI be allowed to continue with its inquiry and the Court do whatever it deems appropriate to allay its apprehensions.

Submission of Senior Advocate Ranjit Kumar for the Commission of Inquiry
Senior Counsel began his submissions by talking about the scope of a fact-finding body like a Commission of Inquiry. He drew the Court's attention to State of Karnataka v Union of India 1977 4 SCC 608

Senior Counsel argued against the contention of the Petitioners that the Commission is "judicially incompetent". He added, "A judge who has been a judge for 35 years…can it be said that he is incompetent? When judges are judicially trained - can it be said that they do not know how to conduct themselves?"

Senior Counsel sought to dispel the notion that one man is doing everything in the CoI. He argued that contrary to the impression that is being created as if the judge is the Commission in fact a number of persons are required to support it-Secretary, court officer, clerk, lawyers. He pointed out that in the V Ramamswamy Committee- Mr.F.S.Nariman and Mr.Raju Ramchandran were lawyers for the Commission and in the Justice Bhanumathi Commission too had lawyers who cross-examined the witness.

He further submitted that no evidence produced before the CoI can be relied upon by anybody in any court of law. Elaborating on his submission, Senior Counsel argued that even if it is supposed that the government decides to file an FIR on the basis of the CoI's report- the government or investigators cannot rely upon the evidence produced before the Commission.

Bias has been rhetorically put to your Lordships without any perspective of the matter

In response to the Petitioner's argument of doctored evidence of one of the doctors, Senior Counsel responded that 3 lines have been taken out of the entire evidence recorded to doubt the judge's actions. He pointed out that the Petitioners only showed the application filed and not the order which was passed in the said instance.

"It is shown as if he did not correct the finding," he submitted.

He drew the Court's attention to the Order passed by the CoI which noted that "Standing Counsel for the Commission may take notice of the correction and issue a clarification to correct the understanding….at the first instance answered the question as minutes and then immediately as seconds...both answers have been recorded simultaneously...anyone can clearly understand that the doctor has only said seconds and not minutes."

There are Commissions and Commissions: Senior Advocate Ranjit Kumar

In response to the Bench's query regarding the future steps after a Committee of Inquiry submits its report, Senior Counsel pointed out that numerous Commission have submitted their reports in the past without any action taken on any of them

"Take the Srikrishna Committee Report in Bombay Right the government never framed the Action Taken Report, it never went to the Assembly, no body ever saw the light of it, " Senior Advocate Ranjit Kumar added.

He also pointed out similar trajectories for the Thakkar Commission for Indira Gandhi, Ranganath Mishra Commission into Indira Gandhi. "The needle of suspicion is kept pending till today...the reports are just lying in archives-govt doesn't want to make it public."

He also pointed out that the Commission of Inquiry Act does not allow for a filing of Writ to ensure Action Taken Report is filed.

Justice Nazeer posed a question for the Counsel: "Why do you say a Writ for Mandamus won't lie?"

Senior Counsel reasoned that it's because one cannot rely on a fact-finding commission to come to a conclusion for or against any party. "Because there is no lis, adjudication, determination", he submitted.

Further, he submitted, theoretically, the court could issue a Mandamus but the Government would come in and say we are looking at the Report.

To which Justice Nazeer responded: "These are all undertaken in public interest! One way or another people should know what has happened"

Ranjit Kumar: "I agree My Lords, but this is what we are seeing in practice"

Justice Nazeer: "Supposed it is not made public? Why appoint Commissions? Only to wriggle out of that heat is it?"

Ranjit Kumar: "As an officer of the Court I can only say it is to assuage the immediate feeling of the person in the heated environment."

Senior Counsel further pointed out that the Dalmia Commissions, Mundhra Commission, Grover Commissions did not see light of the day, with abundant caution that these not be taken as his submissions. "It is only now we are seeing with the Nanavati Commissions on the 1984 Riots that we are seeing conclusions because Trial Courts are rendering judgements based on FIRs lodged after the CoI," he added.

Justice Nazeer quipped: "Only one instance perhaps we are seeing. I have never heard of any other Commission. I think Aryama Sundaram should take note, maybe he's wasting his time arguing like this!"

Senior Advocate Ranjit Kumar is to continue with his submissions tomorrow.

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

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