Post Script – Sahara Story

The Supreme Court while dismissing the Writ Petition filed by Subrato Roy, has recorded a Post Script as tail end their judgment, which expresses the anguish and despair of Judiciary at the present day order of litigation in the Country.

Justice J. S Kehar writing the Judgment on Behalf of a Two Judge Bench also comprising of Justice K. S Radhakrishnan recorded the Post Script as follows;

146 “Even though our instant observations are being recorded as a post script, after we have concluded examining the merits of the controversy arising out of the criminal writ petition filed by the petitioner - Mr. Subrata Roy Sahara, the instant part of our judgment should be treated as a part and parcel of our decision, because it emerges out of years of our experience with the justice delivery system, and is prompted on account of the abuse of the judicial process, exposed while dealing with some Sahara Group related cases. The seriousness of the conclusions recorded herein, we hope, shall not be overlooked merely on account of the heading given to this part”.

147 “The number of similar litigants, as the parties in this group of cases, is on the increase. They derive their strength from abuse of the legal process. Counsels are available, if the litigant is willing to pay their fee. Their percentage is slightly higher at the lower levels of the judicial hierarchy, and almost non-existent at the level of the Supreme Court. One wonders, what it is, that a Judge should be made of, to deal with such litigants, who have nothing to lose. What is the level of merit, grit and composure required, to stand up to the pressures of today’s litigants? What is it that is needed to bear the affront, scorn and ridicule hurled at officers presiding over Courts? Surely one would need superhumans to handle the emerging pressures on the judicial system. The resultant duress is grueling. One would hope for support for officers presiding over Courts, from the legal fraternity, as also, from the superior judiciary upto the highest level. Then and only then, will it be possible to maintain equilibrium, essential to deal with complicated disputations, which arise for determination all the time, irrespective of the level and the stature, of the Court concerned. And also, to deal with such litigants”.

148 “We have no doubt, that the two companies and the present petitioner before this Court – Mr. Subrata Roy Sahara, are such litigants. They never subjected themselves to the authority and jurisdiction of the SEBI. They have continued with the same mannerism at all levels, right upto this Court. They have always adopted an accusing stance, before all the adjudicatory authorities. Even against us. Exhaustive details in this behalf have been expressed by us, in the order dated 31.8.2012. The pleas raised have been found to be patently false, on the face of the record”.

149 “During the course of passing this judgment, we required the Registry of this Court to place before us a compilation of the orders passed on different dates of hearing, ever since the filing of the appeals, which culminated in passing of the order dated 31.8.2012. We were astounded to learn, that the controversy arising out of Civil Appeal nos. 9813 and 9833 of 2011 was listed for hearing on the following 81 dates:-

“28.11.2011, 9.1.2012, 20.1.2012, 10.2.2012, 2.3.2012, 20.3.2012, 23.3.2012, 27.3.2012, 28.3.2012, 29.3.2012, 3.4.2012, 10.4.2012, 11.4.2012, 12.4.2012, 17.4.2012, 18.4.2012, 19.4.2012, 20.4.2012, 24.4.2012, 25.4.2012, 26.4.2012, 1.5.2012, 2.5.2012, 3.5.2012, 4.5.2012, 30.5.2012, 31.5.2012, 1.6.2012, 5.6.2012, 6.6.2012, 7.6.2012, 12.6.2012, 13.6.2012, 14.6.2012, 31.8.2012, 11.9.2012, 28.9.2012, 19.10.2012, 19.11.2012, 8.1.2013, 6.2.2013, 8.2.2013, 19.2.2013, 25.2.2013, 4.4.2013, 22.4.2013, 2.5.2013, 8.5.2013, 17.7.2013, 24.7.2013, 30.7.2013, 6.8.2013, 13.8.2013, 26.8.2013, 2.9.2013, 16.9.2013, 4.10.2013, 28.10.2013, 31.10.2013, 1.11.2013, 20.11.2013, 21.11.2013, 11.12.2013, 17.12.2013, 2.1.2014, 9.1.2014, 28.1.2014, 11.2.2014, 20.2.2014, 26.2.2014, 4.3.2014, 7.3.2014, 12.3.2014, 13.3.2014, 26.3.2014, 27.3.2014, 3.4.2014, 9.4.2014, 16.4.2014, 17.4.2014 and 21.4.2014”

A lot of these hearings consumed this Court’s full working day. Hearing of the main case, consumed one full part, of the entire summer vacation (of the Supreme Court) of the year 2012. For the various orders passed by us, including the order dated 31.8.2012 (running into 269 printed pages) and the present order (running into 205 printed pages), substantial Judge hours were consumed. In this country, judicial orders are prepared, beyond Court hours, or on non-working days. It is apparent, that not a hundred, but hundreds of Judge hours, came to be spent in the instant single Sahara Group litigation, just at the hands of the Supreme Court. This abuse of the judicial process, needs to be remedied. We are, therefore of the considered view, that the legislature needs to give a thought, to a very serious malady, which has made strong inroads into the Indian judicial system”.

150 “The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for, what he has lost, for no fault? The suggestion to the legislature is, that a litigant who has succeeded, must be compensated by the one, who has lost. The suggestion to the legislature is to formulate a mechanism, that anyone who initiates and continues a litigation senselessly, pays for the same. It is suggested that the legislature should consider the introduction of a “Code of Compulsory Costs”.

151 “We should not be taken to have suggested, that the cost of litigation should be enhanced. It is not our suggestion, that Court fee or other litigation related costs, should be raised. Access to justice and related costs, should be as free and as low, as possible. What is sought to be redressed is a habituation, to press illegitimate claims. This practice and pattern is so rampant, that in most cases, disputes which ought to have been settled in no time at all, before the first Court of incidence, are prolonged endlessly, for years and years, and from Court to Court, upto the highest Court”.

152 “This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly upto the highest Court, just because of the lack of responsibility, to take decisions. So much so, that we have started to entertain the impression, that all administrative and executive decision making, are being left to Courts, just for that reason. In private litigation as well, the concerned litigant continue to approach the higher Court, despite the fact that he had lost in every Court hitherto before. The effort is not to discourage a litigant, in whose perception, his cause is fair and legitimate. The effort is only to introduce consequences, if the litigant’s perception was incorrect, and if his cause is found to be, not fair and legitimate, he must pay for the same. In the present setting of the adjudicatory process, a litigant, no matter how irresponsible he is, suffers no consequences. Every litigant, therefore likes to take a chance, even when counsel’s advice is otherwise”.

153 “Does the concerned litigant realize, that the litigant on the other side has had to defend himself, from Court to Court, and has had to incur expenses towards such defence? And there are some litigants who continue to pursue senseless and ill-considered claims, to somehow or the other, defeat the process of law. The present case, is a classic illustration of what we wish to express. Herein the regulating authority has had to suffer litigation from Court to Court, incurring public expense in its defence, against frivolous litigation. Every order was consistently and systematically disobeyed. Every order passed by the SEBI was assailed before the next higher authority, and then before this Court. Even though High Courts have no jurisdiction, in respect of issues regulated by the SEBI Act, some matters were taken to the High Court of Judicature at Allahabad (before its Lucknow Bench). Every such endeavour resulted in failure, and was also sometimes, accompanied with strictures. Even after the matter had concluded, after the controversy had attained finality, the judicial process still being abused, for close to two years. A conscious effort on the part of the legislature in this behalf, would serve several purposes. It would, besides everything else, reduce frivolous litigation. When the litigating party understands, that it would have to compensate the party which succeeds, unnecessary litigation will be substantially reduced. At the end of the day, Court time lost is a direct loss to the nation. It is about time, that the legislature should evolve ways and means to curtail this unmindful activity. We are sure, that an eventual determination, one way or the other, would be in the best interest of this country, as also, its countrymen”.