SUPREME COURT

WALKAR’S CRY FOR HELP

“I lived with him [Poonawala] till date as we were supposed to get married anytime soon and had the blessing of his family. Henceforth, I am not willing to live with him so any kind of physical damage should be considered coming from him as he has been blackmailing me to kill me or hurt me whenever he sees me anywhere,” Walkar wrote.

Suhas Bavche, deputy commissioner of police for Palghar, said officers had begun investigating the complaint and visited the house she shared with Poonawala. “We made enquiries and were in the process to register an FIR but Shraddha backed off, saying she had resolved the issue with Aaftab’s parents,” said Bavche. “She gave a written statement on December 19, 2020, that she did not want to pursue the case further.” HT has seen a copy of the said statement.

Poonam Bidlan, a BJP member and social worker who took Shraddha to Tulinj police station, said Walkar appeared scared when she approached the organisation on November 23, 2020. “However, after a few days, she called and told me that she did not want to pursue the case as Aaftab’s parents had intervened and agreed to get them married,” said Bidlan. “She told me that she wanted to get married to Poonawala and that his parents had agreed for it,” Bidlan added.

The 2020 complaint is important for investigators because it marks the clearest link so far between the alleged crime and cover-up on May 18, and the life of the couple before this incident. The gruesome crime was unearthed last week after Poonawala ostensibly told the police that he murdered Walkar in their Chhattarpur flat six months ago, chopped her body into at least 35 pieces for over two days, stored them in a refrigerator for about three months, and dumped the body parts in south Delhi and Gurugram. Police said the couple fought over finances on May 18 — three days after they moved into the flat in Chhattarpur.

But other than his confession and circumstantial clues, police have not made any major piece of evidence public. Investigators recovered bone fragments from forests in Chhattarpur and Gurugram, found some bloodstains in the flat, and recovered a saw, but forensic tests are yet to conclusively prove that these are linked to the case. Police say Poonawala confessed to the crime but their contention is not admissible in court unless backed by hard proof.

HT previously reported that the brother of one of Walkar’s colleagues, Gladwin Rodrigues, said she backed out from registering the FIR after being convinced by Poonawala’s parents to give him a second chance, and settled for a verbal complaint instead.

The 2020 complaint, which became public on Wednesday, stirred a political storm.

Maharashtra’s deputy CM Devendra Fadnavis said the government will probe why no action was taken despite serious allegations mentioned in the police complaint. “I have also seen the complaint. This is a serious matter. Such incidents happen when no action is taken on such complaints. It will be probed why no action was taken on the complaint. Maybe she would have been alive today if some one had acted on the complaint,” he said.

The complaint was closed on December 19, 2020 .

Meanwhile, police said they could not take Poonawala to the Rohini Forensic Science Laboratory to conclude the polygraph test because he was unwell. ”Police told us that he complained of fever so he was not brought to the lab. The procedure of polygraph test started on Tuesday. We were hoping to complete it on Wednesday after which the suspect’s narco analysis test will be done at a city hospital,” an official of the Delhi FSL said, adding that before Poonawala’s narco test, doctors would conduct his medical examination.

“Initially he said he had dumped the body parts near his house. Later he took us to Gurugram. He has also taken us to multiple shops claiming those were the places where he bought the weapon. It is important to get his narco-analysis to try and find out if he is telling the truth,” said a police officer aware of the probe, requesting anonymity. To be sure, the findings of the test are not prosecutable evidence in court.

Poonawala and Walkar, originally from Vasai near Mumbai, were in a relationship and moved to Delhi in May 2022. Walkar was estranged from her family who opposed her relationship with Poonawala but the alleged murder came to light when a friend informed Walkar’s father that he had not heard from her for at least two months. Her father then informed Mumbai Police in October. A month-long probe led investigators to the flat in south Delhi where Poonawala allegedly murdered Walkar.

the executive cannot make an honest selection without the help of the judiciary.

“It cannot be a constitutionally permissible argument that but for the presence of a person from judiciary, executive can’t discharge its constitutionally mandated functions... Mere presence of someone from judiciary will ensure transparency is a wrong reading of the Constitution and is a fallacious argument. I would urge this court not to traverse through a path that may disturb the constitutional scheme of separation of power,” solicitor general (SG) Tushar Mehta said.

Invoking the doctrine of separation of power, the Centre, through Mehta, on Wednesday cautioned the bench from laying down any alternative mechanism for selection of CEC and ECS while giving a role to the CJI or the judiciary in the appointment process. The bench also included justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar.

The SG, emphasising that independence of the executive is as sacrosanct as independence of the judiciary, referred to the top court’s own selection mechanism for appointments of judges to high courts and the Supreme Court, highlighting how the collegium makes recommendation for appointment of judges without a written code regarding the assessment of candidates.

Mehta’s views before the Constitution bench came close on the heels of similar criticism by Union law minister Kiren Rijiju of the apex court’s model of selecting judges. Earlier this month, Rijiju commented that the SC collegium appoints people who are known to the judges and appear before them. At different occasions in the last one month, Rijiju has termed the collegium system “opaque”, and described the Indian selection system as the only one where judges appoint judges.

Centre was responding to a batch of four public interest litigations (PILS) that have pressed for issuance of directives to it for setting up a neutral and independent selection panel for recommending names to the President for appointments as CEC and ECS.

The petitions have complained that Parliament has not framed a legislation despite a mandate under Article 324(2). At present, ECI is a three-member body, with a CEC and two ECS. Under Article 324(2) of the Constitution, the President is empowered to appoint the CEC and ECS. This provision further stipulates that the President, who acts on the aid and advice of the Prime Minister and the council of ministers, will make the appointments “subject to the provisions of any law made in that behalf by Parliament”.

However, with no such law having been framed till date, CEC and ECS are appointed by the PM and the council of ministers under the seal of the President. The rules for such appointments are also silent on a candidate’s qualification.

Since the Constitution bench started hearing the case on Thursday last week, it has constantly grilled the government over the lack of regulations to guide appointment of CEC and ECS. On Thursday last week, it questioned the government if it was not defeating the wishes of the framers of the Constitution by not framing a law, adding the apex court could examine the necessity of having a better system.

On Tuesday, it lamented that successive governments have “completely destroyed” the independence of ECI by ensuring no CEC gets the full six-year term since 1996, adding the absence of a law for appointment of ECS has resulted in an “alarming trend”.

When the hearing resumed on Wednesday, attorney general R Venkataramani, also appearing for the government, argued that there is no vacuum in the law since Article 324 itself provides for how ECS are appointed, besides the fact that there is no “trigger point” for the court to intervene in the absence of any specific allegation regarding an appointment.

The court replied: “You or any government will appoint a ‘Yes man’... somebody who aligns with your thoughts, somebody who do your bidding. That’s why independence is the most important virtue here. I may be the most competent man but if I am weak in front of the government or the Prime Minister, and can’t take hard calls... you need independence in situations like this.”

The AG, on his part, added that there is a system in place and bureaucrats, on the basis of their seniority, are appointed in ECI through a convention. Additional solicitor general Balbir Singh, who also represented the Centre, too emphasised that the existing mechanism has worked pretty well there are no allegations that the objective of parliamentary democracy has not been achieved.

To this, the court asked the law officers: “We are not saying that the system is not correct. We are asking should there not be a transparent mechanism to avoid all complaints and suspicions? Nobody knows what goes on inside...what’s your mechanism? You appointed someone two days ago. Can you tell us how was that man appointed?”

It took a grim view of the fact that the government appointed Goel while the petitions seeking an independent selection mechanism for ECS was being argued before it and that an application filed by one of the petitioners to stop any new appointment in accordance with the existing system was also pending.

“You could have restrained yourself... but now, we would like you to produce the file related to the appointment tomorrow at 10.30. Produce the file if you say there is no hanky-panky. You have been telling us that everything is hunky dory and best men are being appointed...so show us what was the mechanism by which he was appointed while the matter was pending here,” the bench told Venkataramani.

The bench clarified that it will not examine whether Goel was appointed correctly or not since his appointment is not under challenge, adding that the file would assist the court in testing the government’s assertions about the sanctity of the selection process for CEC and ECS. It also asked senior counsel Gopal Sankaranarayanan, who appeared for one of the petitioners in the matter, to explain on Thursday how the court can intervene when there is no vacuum in the law nor any breach of fundamental rights.