In an interview he recently gave, former Chief Justice D Y Chandrachud made specific references to the adjournments sought by jailed activist Umar Khalid, who withdrew his bail application from the Supreme Court in February 2024. 

It is a craven way of minimising the fundamental injustice that took place during his tenure as chief justice: specifically, the issue that Khalid was an undertrial prisoner for more than four years in a deeply flawed case with no trial on the horizon and the principle that bail is the rule was being enforced inconsistently and arbitrarily. 

The former chief justice said, “I must tell you one thing that is lost sight by many people when it comes to Umar Khalid’s case. Can you imagine the case was adjourned, there were at least seven, if not more, adjournments which were sought by the counsel appearing for Umar Khalid and eventually, the application for bail was withdrawn. What do you have to say to this?”

“Now, at the end of it, what happens is that a particular perspective is conveyed in social media and the media. Judges have no place to defend themselves, and if you look at the fine print of what happens in the court, the reality is a little more nuanced…” he said. 

Indeed, Khalid’s counsel sought many adjournments, but the reason has little to do with the spin the former chief justice has tried to put on it.  It had to do with the concern around his assigning several politically sensitive cases, including Khalid’s, to Justice Bela Trivedi, contrary to the assignment rules, which require the matter to be listed before the senior judge on the bench. 

The first woman judge from the Gujarat High Court to be elevated to the Supreme Court, Trivedi served as the law secretary in Narendra Modi's government when he was the chief minister of Gujarat from 2001 to 2014.

Lawyers questioned why their cases were assigned to Trivedi, whose record for upholding civil liberties and personal freedoms was viewed with scepticism. 

In October 2022, a bench of Justice M R Shah and Justice Bela Trivedi suspended the release of wheelchair-bound Delhi University professor G N Saibaba, arrested in May 2014 in a UAPA case for allegedly having Maoist links. While acquitting him in March 2024, another bench found no evidence apart from “vague allegations” of waging war against the government. Saibaba was jailed for almost 10 years. Seven months after he was released, the 57-year-old professor died following a gallbladder surgery. 

This month, a bench led by Trivedi rejected a bail plea in a sand mining case in Bihar pursued by the enforcement directorate under the money laundering statute. This contrasts with the more liberal standard the Supreme Court is setting for granting bail, even for serious offences like money laundering and terrorism.

There was a feeling that Khalid would not get a fair hearing. He has every right to adopt any legal strategy that he feels would best serve him. And it doesn’t seem right for a former chief justice—the most senior officer of the judiciary till a few months ago—to pillory a bail petitioner while giving post-retirement interviews.

Three months after Khalid withdrew his bail application, saying he would try his luck in the trial court, Hany Babu, a Delhi University professor accused in the Bhima Koregaon case, withdrew his petition before a bench led by Trivedi, saying he would approach the high court. 

The former chief justice has highlighted how Khalid sought adjournments, but it is important to note that the prosecution also did. As the bail petition bounced from one judicial bench to the other, judges adjourned it many times because of scheduling conflicts and a lack of time. 

When a Supreme Court bench heard Khalid’s bail petition on 12 July 2023, Justice A S Bopanna and Justice M M Sundresh said it would "take one or two minutes,” but the State asked for more time to file a response. 

On 13 October 2023, when the judicial bench of Justices Bela Trivedi and Dipankar Datta adjourned the hearing to 1 November due to “paucity of time”, senior advocate Kapil Sibal said that he needed 20 minutes to show the police did not have a case against Khalid.

The situation with Khalid’s bail plea became more complicated when he challenged the UAPA, India’s counter-terrorism law under which he is chargesheeted. His challenge and bail plea were tagged with several older challenges to the UAPA and ended up before the bench led by Trivedi. 

Prashant Bhushan told us, “We don’t know how this is happening, whether the registry is doing it or the chief justice.” 

Khalid has been jailed for more than four years and five months with no trial on the horizon in the so-called Delhi riots conspiracy case, which the police have invented to pin the riots on the anti-CAA protests and those involved in the protest.

Others have been jailed even longer in this case, where even a superficial reading shows conjecture and bias. 

In his preoccupation with the 10-month episode before the Supreme Court, the former chief justice has missed the forest for the trees, perhaps deliberately, in an otherwise long and insidious tale of legal persecution that has gnawed away the right to life and liberty.

Given how many people would be inclined to take the words of a former chief justice at face value, emphasising the adjournments as more significant than the overall delay is disingenuous and misleading the public regarding the true stakes involved. What needs to be addressed is how the process becomes the punishment for those critical of the government and how the judiciary appears to yield to the executive when political factors 

Sharjeel Imam’s bail application has been pending before the Delhi High Court for almost three years and has been heard and re-heard three times. Arrested in multiple cases for speeches that the Constitution permits, he has now spent more than five years behind bars. 

Khalid Saifi, a Muslim activist, and Gulfisha Fatima, a young Muslim woman, have spent close to five years in jail. Some behind bars have barely been mentioned in the media, even by the few independent outlets still reporting on the languishing bail pleas.

Considering the violations of due process and the rule of law, the former chief justice’s concerns about the public perception of Khalid’s case on social media and how judges have nowhere to defend themselves seem touchy and churlish. With so many lives upended because of the justice system's failure, there is little he should want to defend.

(Betwa Sharma is managing editor of Article 14.)

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