New Delhi: The Supreme Court was yesterday told that its March 4 order sending Sahara Group chief Subrata Roy and two other directors to judicial custody was foundationally illegal and unconstitutional and must go.
While assailing the March 4 order passed by the bench of Justice K S Radhakrishnan and Justice Jagdish Singh Khehar, the judges were told to recuse themselves from hearing the matter.
The court was told this in the course of a hearing of the maintainability of a petition by Roy challenging the March 4 order on the grounds that it violated his fundamental rights, particularly Article 21 of the Constitution.
Ram Jethmalani, who appeared for Roy, said the judges should recuse from hearing the matter if his client has apprehension of prejudice and let the same be heard by another bench.
As Jethmalani said this, counsel C A Sundaram — also appearing for Roy — said: “I am not invoking the doctrine of bias as has been alleged.”
Distancing himself from the position taken by Jethmalani, Sundaram said his argument was that if Roy’s petition under Article 32 of the Constitution challenging the March 4 detention order was maintainable, then the same should be heard by a different bench.
Counsel Rajiv Dhawan told the court that moments come in the profession, though rarely, when the court is told that it is “terribly, terribly wrong as it has violated the constitution and rule
Describing as an “extraordinary situation” where a person (Roy) in the middle of contempt hearing is sent to jail, Dhawan said: “Has the court made a mistake, serious enough, giving rise to the presumption of bias even if it is not there?”
Assailing the “insincerity” of the Securities and Exchange Board of India (SEBI) in the entire matter, Dhawan said the contempt is of whole order passed by the court on August 31, 2012, and subsequently “if (we) go to entire thing, then it can’t be said that we (Sahara) are not cooperating”.
Invoking the bar (lawyer fraternity), Jethmalani told the court: “Kindly acknowledge human failure and accept your mistake. Article 21 is violated. No opportunity was given to him (Roy).” Appearing for market regulator SEBI, counsel Arvind Dattar told the court the petition by Roy under Article 32 for enforcing of his fundamental rights against the order of the court was not maintainable.
Dattar said the order of the court could only be challenged under a petition seeking its review and not by way of writ petition under Article 32.
Meanwhile, the SEBI has rejected a fresh proposal by Sahara to deposit Rs200bn with it in five instalments starting with Rs25bn, followed by three instalments of Rs.35bn each on June 30, September 30 and December 31, and the balance of Rs70bn on March 31, 2015.