On the face of things, the Sahara group may have finally got its way with Justice Khehar telling the Supreme Court registry that he is not to be included in any new bench hearing the group’s case. Justice Radhakrishnan, the other judge who denied bail to Sahara group chief Subrata Roy, has already retired, so the bench has to be reconstituted to hear the rest of the case—the original aim of the battery of Sahara lawyers was that the judges recuse themselves. While Sahara’s lawyers argued the order to arrest Roy had violated his rights since he had not been afforded the opportunity to show cause, the judges did not recuse themselves and went ahead and denied bail. Their judgment, delivered last week, details the kind of pressure brought to bear and shows how Roy and his co-accused were offered ample opportunity since the case had been going on since November 2011. The Supreme Court’s registry, the judges stated, showed the case had been heard on no less than 81 occasions since, ample opportunity for anyone to make his case. While accusing the group of being obfuscatory, the judgment goes so far as to quote an earlier order which said “the factual assertions made on behalf of the two companies seemed to be totally unrealistic and could well be fictitious, concocted and made up”. The matter, however, Justices Khehar and Radhakrishnan ruled, was not restricted to Sahara ... “counsel are available, if the litigant is willing to pay their fee”, the judges ruled, in a huge indictment of the current system.
Given this, the judges want the legislature to introduce a Code of Compulsory Costs—this is not the usual ‘costs’ that judges impose for frivolous petitions, this is serious damages the judges are talking of. More important, the judges say, “the State and its agencies litigate endlessly up to the highest Court, just because of the lack of responsibility, to take decisions... we have started to entertain the impression, that all administrative and executive decision making, are being left to Courts, just for that reason”. It is about time, the judges conclude, “that the legislature should evolve ways and means to curtail this unmindful activity”. While the ceaseless litigation by the taxman is well known—in the case of Vodafone, it went beyond even the Supreme Court—there are several such examples from the non-tax field. On April 30, to cite the latest