NEW DELHI (TIP): The counsels of Subrata Roy, senior lawyers Rajeev Dhavan and Ram Jethmalani, on March 27 expressed their apprehension about the Supreme Court bench of Justices K S Radhakrishnan and J S Khehar being prejudiced and biased towards their client and the Sahara group of companies. They said their clients feared serious bias on the part of the two judges after they passed their March 4 order putting Roy and two Sahara directors in judicial custody despite the bench not recording any finding on guilt nor specifying the provision of law violated by them. Jethmalani used the word “prejudice”, but Dhavan specified that it was “bias” when they articulated their apprehension.

Jethmalani said: “It is against the Indian law, especially Section 51 of the Civil Procedure Code, to send a man to jail for not honouring a money decree without establishing through inquiry that he had deliberately done so despite having the capacity to pay. Has the court found that the contemnors have willfully disobeyed the orders?” He added: “If my client concludes that there is prejudice (from the judges) then it must be respected. If the client has a reasonable apprehension, the judges should recuse themselves and not hear the matter. Roy is not liable at all. The August 31, 2012 judgment was against the two companies. The court cannot use its powers under Articles 142 and 129 to send anyone to prison,” he said.

Dhavan said bluntly: “Moments come rarely in our life when we tell the judges of the Supreme Court that you have committed a terrible mistake and violated civil liberties. The March 4 order (directing detention of Roy and two other directors) is a terrible, terrible mistake,” he said. Justices Radhakrishnan and Khehar responded by saying: “We keep hearing that from you every now and then.” As the arguments on Roy’s writ petition, filed through counsel Keshav Mohan, questioning the correctness of March 4 order remained inconclusive, the bench adjourned hearing till April 3.

By the next date of hearing, Roy and two directors would complete a month in jail. Dhavan said: “The very foundation of the March 4 order is not correct. The order discloses a pre-meditated mindset of the court that we are in the wrong. We have been asked to pay Rs 10,000 crore if we were to walk out of jail on bail. But the order was passed without hearing us. We were not asked whether we have the capacity to pay. You passed an order and that’s it! The order was in excess of jurisdiction, which is quite apart from the bias argument.” He said the order violated constitutional provisions, detention was ordered without determination of guilt and the court did not follow principles of natural justice. “This renders the March 4 order void. That is why this petition should go before another bench which should examine the questions about serious illegality and unconstitutionality of March 4 order,” Dhavan said.