Civil rights activist and lawyer Prashant Bhushan on Thursday complained that petitions challenging the invocation of the anti-terror law UAPA and criminal charges against journalists, advocates and others had been de-listed from a bench headed by Chief Justice D.Y. Chandrachud and posted before other judges in violation of rules.

Bhushan has in a letter to the registrar (judicial) of the Supreme Court taken exception to the listing of the case, Mukesh and Others vs State of Tripura and Others, and related matters on October 31 and November 29 before benches other than that of the Chief Justice of India (CJI).

A day earlier, senior advocate Dushyant Dave had shot off an angry letter to Justice Chandrachud complaining that several matters relating to human rights violations, freedom of speech and democracy had recently been de-listed from benches that had originally heard them and were being listed before other benches in breach of Supreme Court rules.

The CJI alone can allocate cases and benches to judges as he is the "master of the roster".

The main matter relates to a petition challenging the criminal and terror cases registered at Agartala police station against Mukesh Kumar, an advocate who had published a fact-finding report on communal violence in Tripura, and a journalist who had criticised the Tripura government’s alleged inaction towards protecting Muslim citizens during the violence.

Apart from seeking the quashing of the FIRs, the petitioners challenged the constitutional validity of the UAPA, which imposes stringent bail conditions.

Similar petitions were later moved against such police cases registered in Tripura against others. Some other petitions contested the constitutionality of the UAPA per se.

Over the past two years, various apex court benches had passed directives saying all these matters should be tagged and heard by the bench headed by Justice Chandrachud.

Justice Chandrachud had indeed heard and passed orders on some of these cases, before a few of them were listed before different benches on October 31 and November 29 this year.

Bhushan’s letter argues that this goes against the rules, particularly Clause 15 of the Overview of the New Scheme for Automated Listing of Cases, published by the Supreme Court on July 10, 2017.

Bhushan, who represents Mukesh Kumar, has provided a chronology of the listing of the various related petitions and the directives passed by various apex court benches relating to them:

⦿ On November 17, 2021, a notice was issued on the original petition. The three-judge bench of then Chief Justice N.V. Ramana and Justices Chandrachud and Surya Kant provided the petitioners protection against any coercive steps, such as arrest.

⦿ On December 3, 2021, another petition raised similar grievances. The bench headed by Justice Ramana directed through a judicial order that the matter be listed before a bench headed by Justice Chandrachud.

⦿ On December 8, 2021, a bench headed by Justice Chandrachud issued a notice in the matter and tagged it with the main petition filed by Mukesh Kumar and others.

⦿ On January 10, 2022, the bench headed by Justice Chandrachud issued a notice and granted protection to certain other petitioners who too had challenged the FIRs registered against them in Tripura in a related matter. The bench tagged this with the main petition moved by Mukesh Kumar.

⦿ On March 25, 2022, the bench headed by Justice Chandrachud passed further “substantive orders” on more petitions filed on the matter.

⦿ On September 26, 2022, a fresh petition challenging the constitutional validity of the UAPA was listed before the bench of then Chief Justice U.U. Lalit. He directed that the matter be listed along with Mukesh Kumar’s and related petitions.

⦿ On October 10, 2022, Justice Lalit’s bench passed an order on a similar petition saying it be tagged with the main petition filed by Mukesh Kumar.

‘Breach’ of rules

On October 31 this year, Bhushan complained, some people moved another writ petition challenging the UAPA’s provisions but this was listed before the bench of Justices Aniruddha Bose and Bela M. Trivedi instead of being tagged with the main petition filed by Mukesh Kumar and the similar petitions moved by others.

“This was in breach of aforesaid Clause 15 as normally… (subsequent petitions) would just have followed the bench presided over by Hon’ble CJI Dr. D.Y. Chandrachud,” Bhushan says.

“Nonetheless, vide order dated 31.10.2023 … Hon’ble Justice Aniruddha Bose and Justice Bela Trivedi inter alia directed the matters to be listed ‘before appropriate bench’.”

Bhushan adds: “In a further surprising turn of events, instead of being listed before Hon’ble Dr. D.Y. Chandrachud on 29.11.2023, all these connected matters were listed before a bench presided over by Hon’ble Justice Bela Trivedi. The aforementioned Clause 15 was breached as these matters should have been listed before Hon’ble CJI… D.Y. Chandrachud….”

According to Bhushan, when the matters were listed before the bench headed by Justice Trivedi on November 29, lawyers for the petitioners and others who had moved similar pleas told the bench the matters should be listed before the bench headed by Justice Chandrachud.

They requested that the matters be referred to the Chief Justice for passing appropriate orders on the administrative side so that they could be listed before the bench headed by Justice Chandrachud.

However, Bhushan said, the bench headed by Justice Trivedi orally remarked that the petitioners were free to act on the administrative side (get in touch with the registrar) or mention it before the CJI.

Thereafter, Justice Trivedi passed a short written order saying: “These matters have been listed before this Court pursuant to the orders dated 13.10.2022 and 20.I0.2022…. List on 10.01.2024….”

Bhushan’s letter to the registrar (judicial) says: “Sir, you are therefore called upon to pass appropriate orders after taking instructions from the Hon’ble CJI to rectify the arbitrariness to which the petitioners… have been subjected as soon as possible as the matter is next listed for 10.01.2024.

“In case there is any administrative order specifically directing the matter to be placed before (the) bench presided over by Hon’ble Justice Aniruddha Bose on 31.10.2023 and (that) presided over by Hon’ble Justice Bela Trivedi on 29.11,2023, you may kindly apprise the petitioners of the same; otherwise the petitioners would be constrained to avail appropriate legal remedies.”