Freedom from imprisonment eluded Sahara group chief Subrata Roy and two directors as they have sought a new bench to hear their petitions challenging the court order sending them to Tihar central jail here on March 4. The court will hear them only next Thursday. Arguments were inconclusive today. Ram Jethmalani and Rajiv Dhavan, their counsel, assailed the court order in strong terms, calling it unconstitutional and smacking of bias against the three persons. They said it was virtually impossible to fulfil the conditions set by the court on Wednesday for the interim bail. "It is so onerous that it is unconstitutional," Dhavan said. Jethmalani, representing Roy, said that the order suffered from "so many vital mistakes that the court must acknowledge them." Unless it is shown that the persons concerned have the capacity to pay, sending them to jail is violation of their fundamental right to life.
All orders were oral, and no previous notice was given to them and no opportunity was given to defend themselves. Roy and the directors were not the parties before the court, but the two companies. Counsel said that the court was prejudiced against them and therefore the judges who ordered their imprisonment must withdraw from the bench and send their writ petition to be decided by another bench. Continuing in the same vein, Dhavan said that the three persons were ordered to be taken to jail in the middle of the proceedings, without any finding of contempt of court according to law. When their lawyers objected to the order, the judges gave a "curt" response and one even observed that the proposal given for repaying the investors was "insulting". The conduct of the judges was not only a "terrible, terrible mistake", but the order violated the civil liberties enshrined in the Constitution. Both the counsel claimed that they were speaking on behalf of the whole bar as the order had violated the Constitution to an unprecedented extent. They cited several judgments which stated that if the court made mistakes they should be corrected by another bench. Sebi counsel
Arvind Datar questioned the maintainability of the writ petition as the order of the Supreme Court is final. It cannot be challenged in another writ petition. The only remedy is by way of a review petition. Therefore, he asked the bench consisting of Justice KS Radhakrishnan and Justice JS Kehar to dismiss the writ petition at the threshold, on the ground of lack of maintainability. Arguments will continue next week, and therefore there is no scope of relief for Roy and the two directors at least till then. The court had granted interim bail on condition that Roy paid Rs.10,000 crore - Rs.5,000 crore in cash and an equal amount in guarantees from a nationalized bank. The two firms had raised Rs 20,000 crore in bonds from the public. Sebi alleges that it was done violating several regulatory norms.
The court, in its order in August 2012, had asked the companies to repay the investors. Since it was not done, Sebi moved a contempt of court petition, on which the three were sent to jail.