Why Justice Bela Trivedi not getting a farewell is not surprising

On Friday morning, Chief Justice of India (CJI) BR Gavai slammed the Supreme Court Bar Association (SCBA) for not holding a farewell for Justice Bela Trivedi on her last working day, in contravention of established practices.

“I believe in speaking straight, the association ought not to have taken such a stand,” said CJI Gavai, while also appreciating SCBA president Kapil Sibal and vice-president Rachna Srivastava for being present during the proceedings of the ceremonial bench.

However, the SCBA said that it was a logistical issue. “She declined; we did not refuse. There is no formal invitation or request ever, but we asked her informally. She said is going to the US either tomorrow or the day after, and after that, she will retire sometime during the vacation. So it could not take place. We have not passed any resolution against her,” SCBA secretary Vikrant Yadav told The Federal.

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What is the issue?

However, sources say it is not surprising that the Bar would be hesitant to hold a farewell for Trivedi, who is seen as “unpopular” among her colleagues and whose tenure has been marked by allegations of ''being anti-civil liberties and pro-BJP government''.

Trivedi assumed office as an SC judge on August 31, 2021. She was previously at the Gujarat High Court and Rajasthan High Court. But what, perhaps, explains her closeness to the ruling party is her stint as the Law Secretary in the Narendra Modi-led Gujarat government from 2004-2006.

In January 2023, she recused herself from reviewing petitions that contested the Gujarat government's decision to grant early release to the 11 men who had been sentenced to life in prison for the rape of Bilkis Bano during the riots in 2002.

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Alleged violation of SC handbook

A report on Article 14 (on December 7, 2023) said eight politically sensitive cases were moved to Trivedi’s bench in four months which revealed “violations of the 2017 Supreme Court Handbook on Practice and Procedure And Office Procedure, which says cases should be retained before the senior judge before whom the case was first listed or listed before a judge hearing a similar case”.

“These are Umar Khalid’s bail plea, petitions challenging provisions of the Unlawful Activities Prevention Act (UAPA)1967; petitions challenging dismissal of a fresh investigation against former Tamil Nadu chief minister Edappadi K. Palaniswami for alleged involvement in a highway tender scandal; two petitions connected to a skill development scam in which former Andhra Pradesh chief minister Chandrababu Naidu is a co-accused; a petition connected with the Central Bureau of Investigation’s (CBI) probe in a disproportionate assets case against deputy chief minister of Karnataka D K Shivakumar; a medical bail plea filed by jailed Tamil Nadu minister Senthil Balaji; and a bail plea of Bhima-Koregaon violence case co-accused Mahesh Raut,” the report said. (sic)

The same was also highlighted by senior advocate Dushyant Dave and advocate Prashant Bhushan who wrote separate letters to the then Chief Justice D Y Chandrachud against the “arbitrary” allotment of cases.

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What Prashant Bhushan says

“Throughout, she appeared to go along with the government in all important cases. She was very negative on cases of bail and liberty, especially those arrested by the BJP government. She was also not liberal and negative in her outlook and therefore she was not popular in the Bar,” advocate Prashant Bhushan told The Federal.

One such example is the case of the late Delhi University Professor G N Saibaba who was convicted and later acquitted on charges of having Maoist links. In 2022, a division bench of Justice Bela Trivedi and Justice M R Shah stayed the release of the highly disabled professor as directed by the Bombay High Court, arguing that the HC only focussed on a singular procedural lapse and did not go into the merits of the case.

“The offences for which the accused were convicted by the learned trial Court are very serious and if ultimately they are tested by the High Court on merits and on merits the State succeeds and the judgment and order passed by the learned trial Court is upheld, the offences are very serious against the sovereignty and integrity of the country,” they said in the order.

Such orders and judgments earned her the reputation that many describe as "anti-liberty”.

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Umar Khalid's case

“Lots of bail cases came before her but they all withdrew because you could see the writing on the wall: that she would dismiss them,” Bhushan said.

One such case was that of activist Umar Khalid, who has been languishing in jail since 2020 for his alleged involvement in the 2020 Delhi riots.

In February last year, Khalid— who has been fighting for bail at every opportunity — decided to withdraw his bail petition from the Supreme Court. The matter had been listed in front of Trivedi’s bench.

Without elaborating, senior advocate Kapil Sibal, who was appearing on behalf of Khalid, told the court, “Bail matter we wish to withdraw. There has been a change in circumstances, we will try our luck in the trial court.”

Senior advocate Sanjoy Ghose told The Federal that Trivedi’s bench had “repeatedly ruled in favour of incarceration, in favour of denial of bail”.

“It’s not just the high-profile cases, even in routine criminal cases, there has been no compassion or concession shown to any litigant,” he said.

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PMLA debate

When the government faced criticism for employing the Enforcement Directorate (ED) and other agencies to target its adversaries, Justice Trivedi was perceived as bolstering their authority.

On February 12 this year, a SC bench of Justice Oka and Justice Ujjal Bhuyan made an observation saying, "The concept of PMLA (Prevention of Money Laundering Act) cannot be that a person should remain in jail. If the tendency is to keep the person in jail, even after cognisance is quashed, what can be said? See what happened in 498A cases, PMLA also being misused like that?”

However, just a day later, in a separate money-laundering case, Justice Bela Trivedi and Justice Prasanna Varale said that bail in PMLA cases cannot be given in a “casual” manner, seen by many as a ''180-degree flip from the earlier position''.

“Any casual or cursory approach by the Courts while considering the bail application of the offender involved in the offence of money laundering and granting him bail by passing cryptic orders without considering the seriousness of the crime and without considering the rigours of Section 45, cannot be vindicated,” the bench said.

However, it’s not just the pro-government cases, Justice Trivedi has also given other controversial judgments.

Different take on issues

She was the lone dissenter in the seven-member Constitution Bench that, in a historic decision, upheld the sub-classification within SC and ST communities. “Though the members of the Scheduled Castes are drawn from different castes, races or tribes, they attain a new Special Status by virtue of the Presidential notification. A bare reading of Article 341 brings out the quintessential concept that “Scheduled Castes” is an amalgam of castes, races, groups, tribes, communities or parts thereof, and is a homogenous group, and that once notified by Presidential List, they acquire Special Status of “Scheduled Castes” which cannot be varied except by the Parliament by law,” she said in her dissenting judgement.

When in March the Allahabad High Court ruled that grabbing breasts and pulling the string of a pyjama don't amount to a rape attempt, the matter reached the SC. Trivedi’s bench refused to hear the plea challenging the ruling, which was later stayed by a bench of Justices B R Gavai and A G Masih.

'She never heard lawyers properly'

A senior advocate, who sought anonymity, told The Federal, “She (Trivedi) never heard lawyers properly, she dismissed cases, she was pro-government and she was anti-human rights."

Senior advocate Sanjoy Ghose said hers would be a “legacy of denying liberties and freedoms to people who come for justice”.

“In the constitutional court, the highest court of the land, you need to get justice not only according to law…what you need is justice as per compassion. There was a compassion deficit in this particular person (Trivedi), and that is the hallmark of the time she has spent on the Bench,” he told The Federal.