The Sahara Case Could Bring Out the Fallibility of the Supreme Court

If the apex court reverses its earlier decision and grants Subrata Roy an extension on his parole, it would be one of the rare instances where the court has admitted its errors and taken corrective steps.


Sahara India Group founder Subrata Roy Sahara. Credit: PTI

New Delhi: The Supreme Court is set to rehear the application for the extension of parole of Subrata Roy – founder of the Sahara India Group – on September 28, after an unseemly spat between Chief Justice (CJI) T.S.Thakur and Sahara’s senior counsel, Rajeev Dhavan, during the previous hearing on Friday, September 23.

The CJI-led three judge bench, also comprising Justices A.R. Dave and A.K. Sikri, has agreed to rehear Sahara’s plea following an apology from Kapil Sibal – another senior counsel for Sahara – for the conduct of  Dhavan – which had led the bench to deny an extension of parole to Roy and ask him to surrender to the authorities at Tihar jail by September 30.

Dhavan has given his own defence on why the bench’s first order on Friday was motivated by anger and has said that he was entitled to point out the perceived injustice in the court’s order.

The outcome of the proceedings on Wednesday in the Supreme Court will be of considerable interest as it is only in very exceptional cases that the court admits its errors and takes corrective steps.

If the CJI-led bench grants Roy an extension on his parole, it would imply that its denial on Friday was indeed flawed, even if the bench does not admit it.

This would be a minor consolation for Roy, who had unsuccessfully tried in May 2014 to persuade another bench to change its decision – taken on March 4, 2014 – to send him to jail and to enforce the financial liability ordered by it by virtue of its powers under Articles 129 and 142 of the constitution.

Roy had then tried to invoke the court’s inherent powers and to correct what he perceived as an injustice. For this, he had a precedent to rely on – A.R. Antulay vs R.S. Nayak, decided by a seven-judge constitution bench in 1988.

The Antulay case

The allegation against former Maharashtra chief minister A.R. Antulay was that a trust floated by him in 1980 – Indira Gandhi Pratibha Pratishthan – to encourage talented people in the field of literature and fine arts earned crores of rupees through donations by cheques. The allegations of abuse of power resulted in his resignation as chief minister in 1982.

In 1984, a five-judge constitution bench of the Supreme Court had transferred Antulay’s trial from the special judge to the high court in order to expedite its hearing.

In 1988, the Supreme Court’s seven-judge bench considered its 1984 judgment in the case as unjust, illegal and unconstitutional under Article 21 of the constitution since Antulay’s right to use appellate remedy was curtailed.

Two legal maxims were cited in that case in support of the proposition that serious errors should be rectified by the court at any time. The first was ex debito justitiae – an applicant can claim remedy as a matter of right, which the court cannot refuse. The second was actus curiae neminem gravabit – to ensure that neither party is prejudiced by some accidental or unavoidable action or omission of the court.

When the Supreme Court delivered this judgment in 1988, the decision invited critical comments by the observers, including legal scholar Upendra Baxi who felt that India’s anti-corruption laws shielded the accused.

Paradoxically, in 1988, Ram Jethmalani, as counsel for respondent and BJP leader R.S. Nayak, had told the Supreme Court that if it interfered in the case in Antulay’s favour, there was a possibility of litigants thinking that the court had gone out of its way because an influential person like Antulay was involved.

But the Supreme Court had then disagreed with Jethmalani and cited Lord Atkin:“finality is a good thing, but justice is better.”

In 2014, history turned a full circle when Jethmalani found himself arguing in favour of the very principle that he had attacked in 1988. He argued – on behalf of Roy – before the Supreme Court bench comprising justices K.S. Radhakrishnan and J.S. Khehar to reverse its decision to send him to jail.

In its May 4, 2014 judgment, authored by Justice Khehar, the Supreme Court found the Antulay precedent irrelevant for deciding the maintainability of Roy’s writ petition seeking review of his detention.

Justice Khehar cited paragraph 107 of the 1988 judgment to buttress his view that it was not a binding precedent, and it should be confined to the facts and circumstances of that case.

The Faktoo case

That perhaps explains why repeated attempts to invoke the reasoning in the Antulay case to reopen verdicts perceived as erroneous have not found favour with successive benches.

The latest to invoke the Antulay reasoning is Kashmir’s Ashiq Hussain Faktoo. Faktoo claimed in his writ petition that he was wrongly convicted and sentenced to life imprisonment by the Supreme Court in violation of a key provision of the Indian Evidence Act in 2003.

On August 30, the Supreme Court bench comprising of justices Ranjan Gogoi, Prafulla C. Pant and A. M. Khanwilkar dismissed Faktoo’s writ petition, under Article 32 of the constitution, seeking to clear his conviction and sentence as not maintainable. Faktoo has been serving a sentence of life imprisonment for his role in the 1992 assassination of noted Kashmiri human rights activist Hriday Nath Wanchoo. Of the 12 accused in this case, four have died and five absconded. Only three of the accused, including Faktoo, were put on trial. The only evidence against all three were their confessional statements recorded under section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).

Faktoo filed his writ petition in 2008 after the Supreme Court reversed the judgment of acquittal by the designated TADA court on January 30, 2003 after an appeal by the CBI, and recorded a conviction and sentenced him to life imprisonment.

Dubious confession

TADA was allowed to lapse in 1995, but the prosecution launched under the Act when it was in force, continued.

Under section 15 of TADA, a confession made to a police officer, not lower in rank than a superintendent of police, was admissible in trial.

Section 15 of the TADA, therefore, was an exception to section 25 of the Indian Evidence Act, 1872 (IEA), which says that no confession made to a police officer shall be used against a person accused of any offence.

But section 15 of TADA was not an exception to section 26 of IEA, which says that confession by an accused while in police custody – unless made in the immediate presence of a magistrate – is not to be held against the person.

As Faktoo’s confession was recorded when he was in police custody, Jethmalani contended that his confession would come under section 26 of IEA.

Curiously, this question was not considered by the Supreme Court’s two judge bench comprising justices S.N. Variava and B.N. Agrawal, which reversed Faktoo’s acquittal by the TADA court, and convicted him and given a life sentence in 2003.

The Variava-Agrawal bench reversed the acquittal on the grounds that non-observance of procedural requirements – as laid down in TADA rule 15 – does not cause any prejudice against the accused.

Post-conviction remedies

Post-conviction, a prisoner is entitled to two important legal remedies.

First is the review petition, which should be heard in an open court, if the sentence imposed on the convict is death penalty. The second and the subsequent remedy is the curative petition created by the Supreme Court’s five-judge constitution bench in the case Rupa Ashok Hurra v. Ashok Hurra and another in 2002.

Faktoo has already exhausted the remedy of a review petition, as the Supreme Court dismissed it on September 2, 2003. Although Justice Gogoi’s judgment leaves scope for Faktoo filing a curative petition, it appears doubtful given the limited mandate of Rupa Hurra (2002).

In Rupa Hurra, the Supreme Court invoked the principles of ex debito justitiae, and carved out an exception permitting the court to re-examine its concluded judgments on twin grounds:

  • the order being in infraction of the principles of natural justice; and
  • an order which shakes the integrity of the justice delivery system by an association of the judge with the subject matter or the litigating parties which may have escaped the attention of the judge concerned.

In paragraph 14 of Rupa Hurra, however, without any competence to overrule Antulay, the five judge bench of the Supreme Court held that a final judgment/order passed by the court could not be assailed in an application under Article 32 of the constitution by an aggrieved person, whether he was a party to the case or not.

Ironically, according to observers, it is Rupa Hurra, rather than A.R. Antulay, which was decided by seven judges, that holds the field in subsequent cases.

In 2000, to commemorate the 50 years of the Supreme Court, the court brought out an edited volume in its honour, aptly titled Supreme But Not Infallible: Essays in Honour of the Supreme Court of India.

The Supreme Court’s decisions in post-Rupa Hurra cases appears to qualify this title by saying: ‘Supreme, but not infallible, yet no infinite remedies’.

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