Last Friday, the Supreme Court passed yet another important judgment on some interlocutory applications (IAs) in the five-year-old Sahara illegal bonds case. The court has now linked Sahara chief Subrata Roy's release to full payment of dues of over Rs 36,000 crore to the Securities and Exchange Board of India (Sebi).
Unprecedentedly, the case has dragged on for nearly three years after the final judgment was pronounced in the matter in August 2012. A battery of top lawyers engaged by the group have forwarded several proposals and arguments over numerous court hearings, first before a two-judge bench and then before the three judge bench comprising T S Thakur, Anil Dave and AK Sikri.
But each time the court came up with a speaking order, addressing the arguments in detail and upholding the letter and spirit of the 2012 order. The latest judgment discussed in detail the difficult choices before the court in what it called a 'novel' case and how it relied on late US philosopher and Oxford professor Ronald Dworkin's theory of jurisprudence "to make the law work".
Dworkin, who passed away in 2013, dealt extensively with the process of adjudication and advocated the notion that law consists not only of rules but also of principles. In his works, he used the imaginary judge called Hercules to convey his theory.
In a critical article titled The rise and fall of Hercules, noted lawyer and academician Shivprasad Swaminathan chronicles the birth of Hercules as follows: "To crown it all, Dworkin claimed in every case there was one and only one unique right answer and it could be found. No doubt this was all a Herculean task. Thus was born Hercules, Dworkin's imaginary common law genius; a judge who alone could discover and apply Dworkin's theory of adjudication."
Judge Sikri, who pronounced the judgment, discussed in detail in the order how the bench addressed twin concerns about the personal liberty of Roy and the two directors who are in jail for about 15 months and the public good in ensuring the refund.
Calling the case a "burning example" where the true dictate of justice was difficult to discern, and the law needed to come down on the side of practical convenience, the judgment said: "We may borrow the jurisprudential theory propounded by Ronald Dworkin, albeit in
somewhat different context, viz the "conventional jurisprudential wisdom", which holds that in certain cases of a particularly complex or novel character the law does not provide a definite answer."
In such hard cases, Dworkin has argued for the judicial use of public standards or principles in a way that is capable of providing the right legal answer. "The process of reaching a right answer in hard cases obviously differs from the process of reaching the legal answer in easy cases. After all, the avowed objective of rule of law is also to ensure that the orders of this court are respected and obeyed."
In March 2014, the court had taken the extreme step of sending Roy and two directors to judicial custody after the payments were delayed for over a year. Sahara lawyers have suggested that the incarceration has already exceeded the punishment prescribed for contempt.
However, the bench viewed this as a "classic case where the approach adopted is influenced by the necessity of "making the law work". Therefore, the orders passed may not be strictly construed as arising out of contempt jurisdiction, but in exercise of inherent jurisdiction vested in this Court to do complete justice in the matter and to ensure that the applicants render full compliance of its orders, the bench said, adding: "It's the unprecedented situation which has led to passing of unprecedented, but justifiable, orders."
