Why detention of Subrata Roy is illegal per se
Execution of orders is not possible in contempt proceedings.
It is a strong hunch that the Supreme Court will most likely release Subrata Roy tomorrow even though he will have no “acceptable proposal” to give. Whether it happens and how the law will get interpreted for this purpose is left to be seen. Irrespective of that, the actual order for detention of Roy and the other Sahara directors passed on 4th March, 2014 is short on acceptable jurisprudence. While no doubt, it sends out a very strong message to those wheeler-dealer entrepreneurs who think money can move mountains in India, these messages have to be rooted in stronger jurisprudence especially when it falls from the Supreme Court of India.
The order dated 4th March, 2014 passed by the Supreme Court in Contempt Petition (Civil) No. 412 of 2012 (SEBI v. Sahara India Real Estate Corp. Ltd. & Ors)
“We are fully convinced that the contemnors have not complied with our directions contained in the judgment….”
“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…..”
“We notice, on this day also, no proposal is forthcoming to honour the judgment of this Court….. In such circumstances, in exercise of the powers conferred under Articles 129 and 142 of the Constitution of India, we order detention of all the contemnors except the fourth respondent and send them to judicial custody at Delhi, till the next date of hearing….”
“(This concession to the fourth respondent is) to enable the contemnors to be in a position to propose an acceptable solution for execution of our orders, by coordinating with the detenues. (The fourth respondent)…. is permitted to be in touch with the rest of the contemnors and submit an acceptable proposal arrived at during their detention, so that the Court can pass appropriate orders.”
The short point being made here is:
(a) By reason of this order, the Court has crossed its Contempt jurisdiction and traversed into Execution jurisdiction. (1) That itself is illegal – the application before it is one of contempt and not execution; (2) Even assuming it is invoking Article 142, the Court cannot make an order that is not in consonance with the law relating to Execution. (b) If the court finds contempt and chooses to put the party in detention, it shall do so by fixing the time period of detention, which shall not exceed six months. It does not have the power to detain indefinitely with the purpose of getting executed its order.
The Supreme Court in its order dated 4.3.2014 has categorically held that:
(i) Its orders have not been complied with – paragraphs 2 and 3. (ii) Acceptable solution needs to be given to SC – paragraph 5 – so that it can pass appropriate orders. (iii) It is invoking powers under Articles 129 and 142 in ordering detention and calling for an acceptable solution.
This matter is one of Civil Contempt at best. I do not think that the Court or any other party is wrongly interpreting it is as criminal contempt.
The law on civil contempt is covered squarely by the Contempt of Courts Act, 1971. The relevant sections being:
s.2 (b) – Definition of “Civil Contempt” – willful disobedience to any judgment, decree etc.
s. 12 – Punishment for Contempt – (1) – maybe punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 2000/-, or with both. Provided that accused may be discharged if acceptable apology made to Court.
(3) – where a person is found guilty of civil contempt, the court, if it considers that a fine will not meet the ends of justice and that sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
Therefore, the Court...
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