Legal debate over Subrata Roy's detention gathers pace

NEW DELHI: It's been over six months that Subrata Roy, the flamboyant chief of Sahara, has been in Delhi's Tihar jail. In the meantime, the hopes of his release have risen and ebbed. And as the days go by, it is becoming uncertain when he will be able to furnish Rs 10,000 crore to Sebi — a pre-condition set by the Supreme Court for his release. 

Company sources say that it's not that the company doesn't have the money. The issue is Roy's current predicament. "The entire world knows that he's being forced to make distress sales to raise this amount and so he is getting badly discounted offers for his valuable overseas properties. Now, which businessman wants to sell his jewels at throwaway prices," said a company executive. 

Roy's case — and along with him that of two other Sahara directors, Ashok Roy Choudhury and R S Dubey — has few parallels. Technically, Rs 10,000 crore is not a bail amount; bail was granted to him five months ago, but it came with the pre-condition of him paying Rs 10,000 crore for his release. Legal experts say this is an extraordinary pre-condition. 

There is also lack of clarity about the charges that have been slapped against Roy and the two Sahara directors. If it is contempt of court — Roy refused to appear before the Supreme Court on the given date citing his mother's illness — he has already served the maximum punishment of six months prescribed for the offence. 

"The question to be debated is whether there is a reasonable limit for how long someone can be incarcerated under the present circumstances — or if the six-month limit prescribed under the Contempt of Courts Act applies here," said Gopal Sankaranarayanan, senior advocate, Supreme Court. 

Article 21 of the Constitution deals with an individual's personal liberty. It states, "No person shall be deprived of his life or personal liberty except according to procedure established by law." 

Some feel that this Article is being violated. Abhishek Manu Singhvi said, "Although currently I am not arguing the case, in my professional opinion, the continued incarceration may well be held to be a violation of his right to life under Article 21 (of Constitution of India) and a fit ground for a curative petition." 

These legal points aside, it is now clear that Roy — about whom company executives say was not an original respondent in this case — will have to pay the amount as ordered by the Supreme Court. The question is whether he should be kept in prison until he coughs up with Rs 10,000 crore, or should he be released with due safeguards, allowed to negotiate the best terms for sale of assets, and told to pay the amount within a set deadline. 

Roy has been in Tihar jail, under judicial custody, since March 4 this year. In early August, Roy was given a 10 working days to negotiate sale or lease of Sahara group's hotel properties to raise the Rs 10,000-crore bail amount. According to people within the group, he has been making 'relentless efforts to sell the properties' in order to meet the criterion set forth by the apex court, 'which shows his bonafide intention to comply with the orders passed by the court'.