Former CJI D.Y. Chandrachud’s remarks on bail spark debate after Prashant Bhushan recalls that Umar Khalid’s bail plea was assigned to Justice Bela Trivedi, a former Modi government law secretary, raising questions on judicial discretion and liberty.
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JAIPUR: The prolonged incarceration of activist Umar Khalid, who has spent over five years in custody under the Unlawful Activities (Prevention) Act (UAPA) without trial, has once again ignited a national debate on bail jurisprudence, judicial discretion, and constitutional liberty.
This debate was renewed following recent remarks by former Chief Justice of India (CJI) D.Y. Chandrachud, who publicly reiterated that “bail should be the rule and jail the exception”, a foundational principle of Indian criminal law.
Public Interest Lawyer and activist Prashant Bhushan, reacting to these remarks, pointedly reminded the public that Umar Khalid’s bail plea was earlier sent by then-CJI Chandrachud to a bench headed by Justice Bela Trivedi, a judge often criticised for her strict stance in cases involving the State and her prior role as Law Secretary in the Narendra Modi-led Gujarat government.
Former CJI Chandrachud’s Remarks
Speaking at a public forum in Jaipur, Rajasthan, former CJI Chandrachud stated:
“They have been inside for five years… you must necessarily take into consideration that they have the right to an expeditious trial. And if an expeditious trial is not possible under present conditions, then bail should be the rule and not the exception.”
However, he stopped short of directly criticising the Supreme Court’s denial of bail in Umar Khalid’s case, citing institutional propriety and judicial restraint.
Chandrachud acknowledged the difficulty of publicly questioning decisions of a court he had led just a year earlier:
“I’m not criticising my court… judges have to look at the record of a particular case.”
Yet, when pressed, he conceded that disagreements on bail decisions do exist, describing the Supreme Court as a “poly-vocal court” with differing judicial philosophies.
This carefully worded stance has been interpreted by many legal observers as an implicit acknowledgment of systemic inconsistency, particularly in politically sensitive cases.
To counter allegations that the Supreme Court routinely denies bail, Chandrachud cited cases where urgent relief was granted:
1. Pawan Khera Case
The former CJI recalled how the Supreme Court intervened urgently to protect Congress spokesperson Pawan Khera from arrest over allegedly uncivil remarks:
“Everything uncivil is not an offence under our law.”
2. Teesta Setalvad Case
He described constituting a special late-night bench at 9 PM to hear activist Teesta Setalvad’s bail plea, preventing her midnight surrender after the Gujarat High Court denied relief.
These examples demonstrate that extraordinary judicial intervention is possible, raising the question of why similar urgency has not been extended to Umar Khalid.
Prashant Bhushan’s Critique
Prashant Bhushan’s intervention sharpened the debate by pointing out that Umar Khalid’s bail plea was assigned to a bench headed by Justice Bela Trivedi, whose record in UAPA and State-centric cases has drawn criticism from civil liberties groups.
“So says the former CJI who had sent Umar Khalid’s plea to the bench of Justice Bela Trivedi….known not to go against the Modi govt;s wishes”
This highlights a persistent concern within India’s judicial system:
- Roster power and bench composition
- The absence of uniform bail standards
- Discretionary outcomes in politically sensitive cases
Bail Jurisprudence Under UAPA
Under UAPA, courts often require the accused to disprove prima facie guilt at the bail stage, effectively turning the presumption of innocence on its head.
The result is a paradox where:
- Bail is constitutionally guaranteed
- Liberty is judicially deferred
- Punishment precedes conviction
Umar Khalid Case
Umar Khalid was arrested in September 2020 in connection with the Delhi riots conspiracy case, primarily under stringent provisions of the UAPA, a law notorious for reversing the presumption of bail.
Despite the absence of a concluded trial and repeated bail rejections, Khalid continues to remain in judicial custody—raising serious concerns about:
- Article 21 (Right to Life and Personal Liberty)
- The right to a speedy trial
- Preventive punishment through prolonged undertrial detention
On January 5, 2026, the Supreme Court of India refused to grant bail to Khalid as well as Sharjeel Imam, another activist accused in the same case.
Click Here To Read More Reports on Ex-CJI DY Chandrachud