ON May 6, the Supreme Court bench of Justice K S Radhakrishnan and Justice Jagdish Singh Khehar pronounced its 207-page judgment turning down the bail plea of Sahara group chief Subrata Roy and its two directors, who are in jail since March 4 for failing to refund investors’ money. The same evening, Justice Khehar sent a note to the Supreme Court Registry directing it not to include him in any new bench — the bench would have to be recast due to Justice Radhakrishnan’s retirement on Thursday — constituted to hear the Sahara case.
Justice Khehar also told the Registry that in future, no matter pertaining to any Sahara group company should be placed before a bench of which he is part. Justice Khehar, who is well known for his strong views on judicial propriety and is seen as a future Chief Justice of India, authored the important judgment which has resulted in prolonging Roy’s stay in jail.
Sources in the Supreme Court Registry told The Indian Express that Justice Khehar’s note has been placed before Chief Justice of India R M Lodha for appropriate orders.
Justice Khehar’s decision to opt out of the case assumes significance in view of the public statement by his colleague on the bench, Justice Radhakrishnan, last week that he faced “pressure, tension and strain” while hearing the Sahara matter.
Even the May 6 judgment talks of pressure, pointing to litigants who “derive their strength from abuse of the legal process”. The Bench also came down heavily on what it termed as “calculated psychological offensives and mind games adopted to seek recusal of judges,” which, it said, needed to “be strongly repulsed”. “We deprecate such tactics and commend a similar approach to other courts when they experience such behaviour,” the Bench said.
During hearing of the petition, the battery of Sahara lawyers led by senior advocate Ram Jethmalani had made many attempts to get the judges to recuse from the case, with Jethmalani even going to the extent of telling the Bench that hearing the matter would cause “discomfort” and “embarrass” the Bench. In open court, he suggested that the judges should recuse from hearing the case and order it to be heard by another composition, not including either of them.
However, the Bench refused to accept this plea, quoting the counsel for the respondents in its judgment as informing them that the “petition was a carefully engineered device, adopted by the petitioner as a stratagem, to seek our withdrawal from the matter”.
The judgment also observed, “It seems that our determination to hear the matter marked to us by the Hon’ble Chief Justice was not palatable to some of the learned counsel for the petitioner”. It added that Jethmalani had told the court that it should not hear the matter because “his client” had “apprehensions of prejudice”. “He would, however, not spell out the basis for such apprehension,” the Bench noted.
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