'Calculated Psychological Offensives And Mind Games'

The Supreme Court has upheld its order jailing Sahara chief Subrata Roy and rejected his claim that rules of natural justice were not followed in the case.

65-year-old Roy, who has been in jail since March 4 for non-refund of over Rs.20,000 crore to depositors, was asked by the court to make a fresh proposal for paying Rs 10,000 crore to get bail.

Disobedience of orders of a Court strikes at the very root of the rule of law, on which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for non-compliance of a judicial order. Judicial orders cannot be permitted to be circumvented. In exercise of contempt jurisdiction, Courts have the power to enforce compliance of judicial orders, and also, the power to punish for contempt

A bench of justices K S Radhakrishnan and J S Khehar in a strongly-worded judgement came down heavily on the Group for "systematically" frustrating and flouting all its orders with impunity on refunding investors' money.

It said the group "adopted a demeanour of defiance constituting a rebellious behaviour, not amenable to the rule of law" and justified its decision to send Roy along with two promoters of the companies to jail. 

The bench said it started adopting sequentially harsher means to persuade compliance of its order on refunding money leading to his detention after all the efforts to "cajole" the two companies and the petitioner were "methodically circumvented".

"Efforts made to cajole the two companies and the petitioner were always stonewalled and brushed off. All intermediary means to secure compliance of this Court’s orders dated 31.8.2012 and 5.12.2012, were evaded and skirted. "Even proposals to secure the payments (as against, the payment itself) to be made to the investors, in terms of this Court’s orders, were systematically frustrated"  

The bench also slammed Roy plea seeking its recusal from hearing the case.

"We find no merit in the contention advanced on behalf of the petitioner, that we should recuse ourselves from the hearing of this case. Calculated psychological offensives and mind games adopted to seek recusal of Judges, need to be strongly repulsed. "We deprecate such tactics and commend a similar approach to other Courts, when they experience such behaviour"

The bench particularly came down on Ram senior lawyers Ram Jethmalani and Rajeev Dhawan:

For, Mr. Ram Jethmalani, learned Senior Counsel, was now more forthright. He told us, that we should not hear the matter, because “his client” had apprehensions of prejudice. He would, however, not spell out the basis for such apprehension. Dr. Rajeev Dhawan, came out all guns blazing, in support of his colleague, by posing a query: Has the Court made a mistake, serious enough, giving rise to a presumption of bias “… even if it is not there …”? 

It was difficult to understand what he meant. But seriously, in the manner Dr. Rajeev Dhawan had addressed the Court, it sounded like an insinuation.

Mr. Ram Jethmalani joined in to inform us, that the Bar (those sitting on the side he represented) was shell-shocked, that an order violating the petitioner’s rights under Article 21 of the Constitution of India, had been passed, and it did not seem to cause any concern to us. The petitioner had been taken into judicial custody, we were told, without affording him any opportunity of hearing. Learned counsel asked the Bench, to accept its mistake in ordering the arrest and detention of the petitioner, and acknowledge the “human error” committed by the Court, while passing the impugned order dated 4.3.2014. 

Dr. Rajeev Dhawan, then informed the Court, that “… moments come in the profession, though rarely, when we tell the Judges of the Supreme Court, that you have committed a terrible terrible mistake, by passing an order which has violated the civil liberties of our client. … that the order passed is void …”. And moments later, referring to the order, he said, “… it is a draconian order …” The seriousness of the submissions apart, none of them, even remotely, demonstrated “bias”.

The bench's post-script is worth highlighting in full:

147. The number of similar litigants, as the parties in this group of cases,is on the increase. They derive their strength from abuse of the legal process. Counsel are available, if the litigant is willing to pay their fee. Their percentage is slightly higher at the lower levels of the judicial hierarchy, and almost non-existent at the level of the Supreme Court. One wonders, what is it, that a Judge should be made of, to deal with such litigants, who have nothing to lose. What is the level of merit, grit and composure required, to stand up to the pressures of today’s litigants? What is it, that is needed to bear the affront, scorn and ridicule hurled at officers presiding over Courts? Surely one would need superhumans to handle the emerging pressures on the judicial system. The resultant duress is grueling. One would hope for support for officers presiding over Courts, from the legal fraternity, as also, from the superior judiciary upto the highest level. Then and only then, will it be possible to maintain equilibrium, essential to deal with complicated disputations, which arise for determination all the time, irrespective of the level and the stature, of the Court concerned. And also, to deal with such litigants...

148. We have no doubt, that the two companies and the present petitioner before this Court – Mr. Subrata Roy Sahara, are such litigants. They never subjected themselves to the authority and jurisdiction of the SEBI. They have continued with the same mannerism at all levels, right upto this Court. They have always adopted an accusing stance, before all the adjudicatory authorities. Even against us. Exhaustive details in this behalf have been expressed by us, in the order dated 31.8.2012. The pleas raised have been found to be patently false, on the face of the record.

149. During the course of passing this judgment, we required the Registry of this Court to place before us a compilation of the orders passed on different dates of hearing, ever since the filing of the appeals, which culminated in passing of the order dated 31.8.2012. We were astounded to learn, that the controversy arising out of Civil Appeal nos. 9813 and 9833 of 2011 was listed for hearing on the following 81 dates:- 

“28.11.2011, 9.1.2012, 20.1.2012, 10.2.2012, 2.3.2012, 20.3.2012, 23.3.2012, 27.3.2012, 28.3.2012, 29.3.2012, 3.4.2012, 10.4.2012, 11.4.2012, 12.4.2012, 17.4.2012, 18.4.2012, 19.4.2012, 20.4.2012, 24.4.2012, 25.4.2012, 26.4.2012, 1.5.2012, 2.5.2012, 3.5.2012, 4.5.2012, 30.5.2012, 31.5.2012, 1.6.2012, 5.6.2012, 6.6.2012, 7.6.2012, 12.6.2012, 13.6.2012, 14.6.2012, 31.8.2012, 11.9.2012, 28.9.2012, 19.10.2012, 19.11.2012, 8.1.2013, 6.2.2013, 8.2.2013, 19.2.2013, 25.2.2013, 4.4.2013, 22.4.2013, 2.5.2013, 8.5.2013, 17.7.2013, 24.7.2013, 30.7.2013, 6.8.2013, 13.8.2013, 26.8.2013, 2.9.2013, 16.9.2013, 4.10.2013, 28.10.2013, 31.10.2013, 1.11.2013, 20.11.2013, 21.11.2013, 11.12.2013, 17.12.2013, 2.1.2014, 9.1.2014, 28.1.2014, 11.2.2014, 20.2.2014, 26.2.2014, 4.3.2014, 7.3.2014, 12.3.2014, 13.3.2014, 26.3.2014, 27.3.2014, 3.4.2014, 9.4.2014, 16.4.2014, 17.4.2014 and 21.4.2014” 

A lot of these hearings consumed this Court’s full working day. Hearing of the main case, consumed one full part, of the entire summer vacation (of the Supreme Court) of the year 2012. For the various orders passed by us, including the order dated 31.8.2012 (running into 269 printed pages) and the present order (running into 205 printed pages), substantial Judge hours were consumed. In this country, judicial orders are prepared, beyond Court hours, or on non-working days. It is apparent, that not a hundred, but hundreds of Judge hours, came to be spent in the instant single Sahara Group litigation, just at the hands of the Supreme Court. This abuse of the judicial process, needs to be remedied. We are, therefore of the considered view, that the legislature needs to give a thought, to a very serious malady, which has made strong inroads into the Indian judicial system.

150: The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for, what he has lost, for no fault? The suggestion to the legislature is, that a litigant who has succeeded, must be compensated by the one, who has lost. The suggestion to the legislature is to formulate a mechanism, that anyone who initiates and continues a litigation senselessly, pays for the same.