Saharashri and the Supremes

File picture of the Chairman of Sahara India Pariwar Subrata Roy, as he arrives at the Supreme Court for a hearing in 2014. PTI Photo by Shahbaz Khan.

File picture of the Chairman of Sahara India Pariwar Subrata Roy, as he arrives at the Supreme Court for a hearing in 2014. PTI Photo by Shahbaz Khan.

The Supreme Court’s June 19 order refusing to end the incarceration of ‘Saharashri’ Subrata Roy seems to be a response to a persistent debate in the corridors of the Court and outside— for how long can the judges keep a person in prison for contempt of their orders?

Those well-versed with Sahara’s actions, specifically its wilful and continued disobedience of judicial orders, might be tempted to say ‘indefinitely’. Fundamental rights zealots on the contrary, might demand a more well-reasoned balance between the personal liberty of Roy being deprived without due process and the public interest in compliance with the Supreme Court’s orders.

The right answer, unlike in several prickly constitutional questions, is, however, very clear in this case— the rule of law demands that a person can be imprisoned for as long as it takes for the orders of the court to be fully complied with. As harsh as it may sound, there can be no pussyfooting around this fundamental proposition.

Dues to SEBI

To understand the context of the latest order, a brief factual recap is necessary. Roy was committed to judicial custody along with Sahara group directors Ravi Shankar Dubey and Ashok Roy Choudhary, by an order of the Supreme Court on March 4, 2014. This was on account of their failure to comply with a previous order that had directed Sahara to pay Rs. 17,400 crore to the Securities and Exchange Board of India (SEBI) due to an illegal issue by the company of certain debentures to tens of thousands of small depositors. On March 26, 2014, the three directors asked for bail. In response, the Supreme Court passed a conditional order that interim bail would be granted if Rs. 10,000 crore was deposited – Rs. 5000 crore in cash and the balance of Rs. 5000 crore in the form of bank guarantees.

In its latest order, the Supreme Court reiterated that Roy and the other two directors cannot be released on bail until the stipulated Rs. 10,000 crore is paid. Also, the total amount payable to SEBI, it held, had swelled to Rs. 36,000 crore, which the court directed be paid in nine instalments within 18 months of Roy’s release. Failure to do so according to the schedule would lead to encashment of the bank guarantee, whose trigger conditions were judicially mandated by this order. No terms of Roy’s detention significantly changed as a result. So, the question may arise— what is the fuss about?

In principle, the question is whether the ordinary rule of criminal jurisprudence, expressed pithily by Justice Krishna Iyer as ‘bail, not jail’ should apply to Roy.

The latest order describes the situation as ‘unprecedented’ involving the ‘personal liberty’ of the applicants on the one hand and the ‘majesty of the law and ensuring larger public good’ on the other. This characterisation itself ought to have suggested to the court the reason as to why ordinary principles of bail would not apply—for undertrials in criminal cases, no matter how heinous the crime, bail preserves personal liberty pending exhaustion of all judicial remedies. This is because the law affords an opportunity for a man to prove his innocence till finally declared guilty by the highest appellate court. The majesty of the law is never in question in such cases but is rather reaffirmed when bail, a solemn expression of the humaneness of the justice system, is granted.

Defiance of court orders

In the case of Roy however, jail-time was necessitated by Sahara’s continuous and stubborn non-compliance with the orders of the court. His imprisonment was not pending any final determination, but flowed from a reasoned determination that it would provide an avenue to secure compliance with the orders of the court. Performing a volte face and releasing him on bail without any semblance of compliance with its orders would have been an admission of the court’s helplessness in securing compliance with its own orders. A worse blow for the rule of law could scarcely be imagined.

However, by attempting to provide a jurisprudential basis for its actions, the court has tied itself up in legal knots in its latest order. It has said that the decision is born out of ‘practical convenience’ and thus strictly not arising out of contempt jurisdiction but rather the ‘power to do complete justice’. One can only imagine this justification having been offered in the face of arguments by Roy’s counsel based on his fundamental right to personal liberty and criticism from close quarters of its orders continuing incarceration now for over 15 months. However the court’s response makes the legal validity of its order doubtful.

The ‘power to do complete justice’ under Article 142 of the Constitution is an extraordinary power to be used by the Supreme Court alone as a method of last resort when all other powers have proved insufficient in securing compliance with its orders. Its width has been circumscribed by the court itself, which has said that it must be consistent with fundamental rights and statutory laws. Both Roy’s right to personal liberty under Article 21 as well as the limitations on the extent of imprisonment under the Contempt of Courts Act, 1971 (six months) would militate against such usage. If the power to do complete justice is used contrary to law, as has been suggested by the court in this case, it might open the floodgates for arbitrary judicial orders in other cases, with judges acting on a well-meaning but wholly illegitimate sense of justice shorn of the law. For unelected and largely unaccountable judges to exercise such vast powers would be gravely problematic, notwithstanding the remoteness of the possibility of such power being exercised.

In the final analysis, the Supreme Court was entirely justified in continuing the incarceration of Roy. The arm of the law is long and it so precisely for litigants such as Roy, whose continuous recourse to the courts in the memorable words of Justice Krishna Iyer “stultifies the court process and makes decrees with judicial seals brutum fulmen”. There is no caveat required to the proposition that the court can do what it takes to ensure that its orders are fully complied with and not dodged by litigants with dubious pasts and sterling counsel. One only wishes that it did so assertively and not by seeking cover behind a docile guise of practical convenience that shows the court to be overly sensitive to a man who certainly deserves justice, but hardly its sympathy.

Arghya Sengupta and Ritwika Sharma are Research Director and Research Fellow respectively, at the Vidhi Centre for Legal Policy. Sengupta provided research assistance to Senior Counsel appearing for SEBI for hearings before the Supreme Court in March and April 2014.