The Supreme Court Tuesday was told that its order sending Sahara Group chief Subrata Roy and its two other directors to judicial custody was without jurisdiction and illegal as it was passed without following any procedure under the law.
The apex court exercising its powers under articles 129 and 142 of the constitution had March 4 sent Subrata Roy and two other directors Ashok Roy Choudhary and Ravi Shankar Dubey to judicial custody.
Meeting the market regulator SEBI's contention that Subrata Roy's plea against the March 4 detention order was not maintainable, senior counsel C.A. Sundaram, appearing for Roy, told the court that "when the right of an individual under article 21 of the constitution was hit by the order of the executive, legislature or even the judiciary, the writ petition under article 32 of the constitution would lie and the same was maintainable".
Article 21 guarantees the protection of life and liberty and says that these could not be taken away without following the procedure established by law, while article 32 provides for remedies for the enforcement of fundamental rights.
Sundaram said that notwithstanding the decision of Chief Justice P.Sathasivam on the administrative side to refer the petition before the bench that passed the detention order now under challenge, if the petition by Roy was maintainable, then it can't be heard by the judges who had passed the detention order.
He argued that the assignment of the case before the same bench which passed the order under challenge by the chief justice did not take away Roy's right of natural justice.
Taking the court through the provisions of the Contempt of the Court Act, senior counsel Ram Jethmalani said that under the law, proceedings could only be initiated against the director or an office bearers of the company facing contempt and who has given an undertaking to discharge the obligation of the company.
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Jethmalani said that in the instant case, Roy was neither director nor an office bearer of the companies facing contempt proceedings.
He told the court that three contempt pleas by SEBI are still pending before the court and Roy and two other directors were sent to judicial custody for the fourth contempt for which they were given no opportunity to defend themselves.
Jethmalani said that though the three could not have been prosecuted for contempt but even if the detention has to be executed, then it can only be civil detention and not in Tihar jail.
Sending Roy and two others to judicial custody, the court in its March 4 order said: "Non-compliance of the orders passed by this court shakes the very foundation of our judicial system and undermines the rule of law, which we are bound to honour and protect. This is essential to maintain faith and confidence of the people of this country in the judiciary."
The apex court by its Aug 31, 2012 order had asked Sahara India Real Estate Corporation Limited and Sahara Housing Investment Corporation Limited to return investors Rs. 24,000 crores that it had collected by issuing optionally fully convertible debenture.
The hearing will continue on Wednesday.