During an interview this week with the former Chief Justice of India, D Y Chandrachud, Saurabh Dwivedi, the founding editor of Lallantop, a YouTube channel, questioned why the activist Umar Khalid was incarcerated without bail or trial for five years when the Supreme Court has consistently said that bail is the rule and jail the exception.

Dwivedi cited my piece, “A Former Chief Justice’s Disingenuous Remarks on a Jailed Activist,” criticising the former Chief Justice’s February 2025 comments about Khalid seeking seven adjournments during his first bail appeal in the Delhi police’s so-called "larger conspiracy" case. 

Given that the case was assigned to Justice Bela Trivedi, who has a poor track record of granting bail, there was genuine concern about the possibility of a fair hearing. I wrote that the former Chief Justice’s focus on Khalid’s adjournments overlooked the more pressing issue: the judiciary’s disregard for legal precedent in repeatedly denying bail and enabling prolonged pretrial incarceration in a politically sensitive case with scant evidence.

Seven months later, I could write the same piece. 

The former Chief Justice’s response to Dwivedi and my piece—where he speaks of the “grave danger” of forum shopping, referring to litigants trying to secure a favourable bench or avoid a particular judge—and repeats the standard process of case allocation in the Supreme Court, remains disingenuous.

Once again, the former Chief Justice—perhaps intentionally—misses the point, overlooking how forum shopping reflects a deeper breakdown in judicial consistency, with judgments often appearing to favour the ruling establishment over precedent.

There has been plenty of cause for concern.

Chief Justice (2017–2018), Dipak Misra, faced public allegations from four senior judges that politically sensitive cases were being selectively assigned to junior judges. His successor, Ranjan Gogoi, presided over a sexual harassment case against himself and later accepted a Rajya Sabha seat from the ruling BJP—despite previously warning that such appointments erode judicial independence. Justice A M Khanwilkar was seen as ruling in alignment with the government on issues of national security and governance. He was appointed chairperson of the Lokpal, India’s anti-corruption watchdog.

Justice Bela Trivedi, the first woman judge from the Gujarat High Court to be elevated to the Supreme Court, served as the law secretary in Narendra Modi's government when he was the chief minister of Gujarat from 2001 to 2014. Justice Trivedi, who retired in June, was known for her conservative stance on bail. 

On 14 October 2022, the Bombay High Court released wheelchair-bound professor G N Saibaba, accused under India’s anti-terrorism law, Unlawful Activities Prevention Act, for alleged Maoist links, citing a lack of sanction to prosecute. The next day, Justices M R Shah and Trivedi suspended the order and sent him back to jail, stating, “For terrorism and Maoist activities, brain usage is more important than physical activity.”

In March 2024—10 years after his arrest—a Supreme Court bench led by Justices B R Gavai and Sandeep Mehta upheld Saibaba's second acquittal by the Bombay High Court, affirming that mere possession of literature or ideological beliefs is not a crime and noting the absence of evidence against him.

The first acquittal was reversed despite the Supreme Court's landmark 2021 ruling in Union of India vs K. A. Najeeb (2021), which held that even in terror cases, stringent statutory laws like the UAPA, cannot override constitutional rights, prolonged detention without trial violates the right to a speedy trial under Article 21 of the Constitution, and serious charges don’t justify indefinite pretrial custody.

In July 2023, the two-judge bench in Vernon vs State of Maharashtra reaffirmed Najeeb, adding that judges must conduct more than a superficial review of evidence instead of just accepting the prosecution’s case. While granting bail to Bhima Koregaon accused Vernon Gonsalves and Arun Ferreira, jailed at that point for five years, they found no prima facie link to terrorism. 

In September 2023, a Supreme Court bench led by Justices Aniruddha Bose and Trivedi stayed the Bombay High Court’s bail order for Mahesh Raut, a land rights activist and Bhima Koregaon accused who has been jailed since 2018. The high court had noted insufficient evidence of terrorism and his prolonged pre-trial detention. Raut’s bail plea remains pending before the Supreme Court.

The second point the former Chief Justice made in the Lallantop interview was that he did not assign Justice Trivedi to Umar Khalid’s bail petition, explaining that case assignments follow established rules and go to the senior-most judge. 

Article 14 has reported that, according to the Supreme Court Handbook, cases should be assigned to the senior judge or to a judge handling a similar case.

In December 2023, journalist Saurav Das first reported for us that Khalid’s case was assigned to Justice Trivedi in a manner that appeared to violate bench-assignment rules. He noted that under the "master of the roster" system, the Chief Justice alone controls case allocation, and Chandrachud said he was “keeping a close watch on the listing of cases”.

Khalid filed a petition challenging the constitutionality of UAPA, which, by Supreme Court rules, should have been grouped with similar cases before the Chief Justice’s three-judge bench. Instead, the petitions and his bail application were assigned to Justice Trivedi, raising procedural concerns. At the time, senior lawyers, including Prashant Bhushan, requested that the matter be clarified with the Chief Justice. 

In the Lallantop interview, the former Chief Justice also said that “to say Bela Trivedi should not hear the case because she was the law secretary is completely wrong”. 

This claim is misleading, especially coming from a former CJI in a public forum. We never said Justice Trivedi was disqualified due to her past role. Rather, we noted her background, judicial record on personal liberty, lawyers’ concerns, and procedural issues with case assignment.

The former Chief Justice stressed the diverse backgrounds and judicial approaches of judges, and  that their decisions must be based solely on the police record presented in court, not what is written on social media or a journalistic article. But how does that justify prolonged imprisonment without bail or trial for individuals like Umar Khalid or Mahesh Raut when clear legal precedents exist for their release?

Furthermore, any impartial judicial scrutiny would reveal that this “larger conspiracy” case rests on weak evidence and conjecture, aiming to discredit the anti-CAA movement, target Muslim activists, and vilify Khalid, who looms large in the public imagination. The broader message is that Muslim dissent will be punished indefinitely.

In 2021, the Delhi High Court granted bail to three of Khalid’s co-accused, ruling that the allegations of conspiracy didn’t meet the legal definition of India’s terrorism law and conflated protest with terrorism. It was a verdict so damaging to the State that they appealed immediately, and the Supreme Court quickly ruled that the bail decision wouldn’t set a precedent.

In 17 out of 93 acquittals in Delhi riots cases, courts found “fabricated” evidence, The Indian Express reported last week. In 2021, we reviewed 40 Delhi riots court orders and found a pattern of false statements, fabricated charges, and police confusion. Judges described the investigations as “evasive,” “callous,” “farcical,” and “misusing the judicial system”.

In light of all this, it is frustrating that the former Chief Justice continues to obfuscate despite clear and documented injustices.

In February, I wrote that the former Chief Justice undermines his office’s dignity by publicly scrutinising a bail seeker’s strategy, worrying about social media perceptions, and lamenting that judges have no forum to defend themselves. 

This, too, still stands. 

(Betwa Sharma is managing editor of Article 14.)

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