The Supreme Court was Thursday told that its March 4 order sending Sahara Group chief Subrata Roy and two other directors to judicial custody was foundationally illegal and unconstitutional and must go.

 

 While assailing the March 4 order passed by the bench of Justice K.S. Radhakrishnan and Justice Jagdish Singh Khehar, the judges were told to recuse themselves from hearing the matter.The court was told this in the course of a hearing of the maintainability of a petition by Roy challenging the March 4 order on the grounds that it violated his fundamental rights, particularly under Article 21 of the Constitution.

 

 Ram Jethmalani, who appeared for Roy, said the judges should recuse from hearing the matter if his client has apprehension of prejudice and let the same be heard by another bench.  As Jethmalani said this, counsel C.A. Sundaram – also appearing for Roy – said: "I am not invoking the doctrine of bias as has been alleged."

 

 Distancing himself from the position taken by Jethmalani, Sundaram said his argument was that if Roy's petition under Article 32 of the Constitution challenging the March 4 detention order was maintainable, then the same should be heard by a different bench.

 

 Counsel Rajiv Dhawan told the court that moments come in the profession, though rarely, when the court is told that it is "terribly, terribly wrong as it has violated the constitution and rule of law".  Describing as an "extraordinary situation" where a person (Roy) in the middle of contempt hearing is sent to jail, Dhawan said: "Has the court made a mistake, serious enough, giving rise to the presumption of bias even if it is not there?"

 

 Assailing the "insincerity" of the Securities and Exchange Board of India (SEBI) in the entire matter, Dhawan said the contempt is of whole order passed by the court Aug 31, 2012, and subsequently "if (we) go to entire thing, then it can't be said that we (Sahara) are not cooperating".

 

 Invoking the bar (lawyer fraternity), Jethmalani told the court: "Kindly acknowledge human failure and accept your mistake. Article 21 is violated. No opportunity was given to him (Roy)."

 

 Appearing for market regulator SEBI, counsel Arvind Dattar told the court the petition by Roy under Article 32 for enforcing of his fundamental rights against the order of the court was not maintainable. Dattar said the order of the court could only be challenged under a petition seeking its review and not by way of writ petition under Article 32.

 

 Meanwhile, the SEBI has rejected a fresh proposal by Sahara to deposit Rs.20,000 crore with it in five instalments starting with Rs.2,500 crore, followed by three instalments of Rs.3,500 crore each June 30, Sep 30 and Dec 31, and the balance of Rs.7000 crore March 31, 2015.

 

 The SEBI said the fresh proposal which Sahara gave March 25, was not in conformity with the Aug 31, 2012, order and amounted to revising it.