Former Chief Justice of India DY Chandrachud questions the prolonged denial of bail to activist Umar Khalid, stressing that undertrial detention cannot be considered a punishment and violates the constitutional presumption of innocence and the right to a speedy trial under Article 21.
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JAIPUR: Former Chief Justice of India Justice DY Chandrachud on Sunday strongly reiterated that bail before conviction should ordinarily be a matter of right, stressing that pre-trial incarceration cannot be used as a form of punishment. Speaking at the Jaipur Literature Festival, Justice Chandrachud cautioned courts against mechanically denying bail, particularly under the guise of national security.
Responding to a question by journalist Vir Sanghvi regarding the Supreme Court’s recent refusal to grant bail to activist Umar Khalid in the 2020 Delhi riots conspiracy case, the former CJI clarified that he was speaking “not as a judge, but as a citizen.”
Justice Chandrachud highlighted that the Indian criminal justice system is founded on the presumption of innocence, where every accused remains innocent until proven guilty after trial.
“Pre-trial bail cannot be punishment. If someone spends five to seven years as an undertrial and is later acquitted, how do you compensate for the lost years?”
he asked.
Highlighting settled bail jurisprudence, he identified three exceptional grounds where denial of bail is justified:
- Likelihood of repeating serious crimes, such as in cases of serial offenders
- Risk of absconding or evading trial
- Possibility of tampering with evidence or influencing witnesses
“If none of these three exceptions apply, bail is the rule,”
he said.
Justice Chandrachud expressed serious concern over the expanding use of national security legislation, stating that such laws often reverse the presumption of innocence.
“The problem today is that national security laws replace innocence with guilt. Courts must examine whether national security is genuinely involved and whether detention is proportional,”
he observed.
He warned that failure to do so results in individuals “rotting in jail for years” without conclusion of trial, a clear violation of Article 21 of the Constitution, which guarantees the right to life and personal liberty, including a speedy trial.
“Even if a statute denies bail, the Constitution is supreme,”
he asserted.
Justice Chandrachud noted that Umar Khalid has been incarcerated for nearly five years as an undertrial. He emphasised that courts must ensure expeditious trials when bail is denied.
“If an expeditious trial is not possible, bail should be the rule and not the exception,”
he said, while expressing hesitation in directly criticising the judiciary he led until recently.
Calling it a “worrying trend,” the former CJI observed that district and high courts increasingly deny bail, driven by fear of scrutiny and allegations of impropriety.
“Judges fear that if they grant bail, their motives will be questioned. It is safer to let the accused approach higher courts,”
he remarked.
This, he said, has led to an overburdened Supreme Court, with nearly 70,000 cases piling up annually.
Justice Chandrachud cautioned against moral pressure on trial judges, stating that even a minor adverse observation by a higher court can destroy a judicial career and affect promotions.
Addressing concerns around corruption in the judiciary, Justice Chandrachud acknowledged its existence but warned against equating erroneous judgments with corrupt intent.
“Judges come from society, and society has corruption. But calling every wrong judgment corrupt is easy. What we need is an efficient accountability system,”
he said.
On a personal note, Justice Chandrachud shared insights into his life as a Baby Boomer parenting two Gen Z daughters with special needs, stating that it helps him stay connected with evolving social realities.
Referring to his book, he clarified that it is a compilation of speeches rather than a technical legal treatise, drawing from diverse sources such as the US Supreme Court, Indian jurisprudence, and philosophers like John Stuart Mill and Immanuel Kant.
Recalling the judgment on decriminalisation of homosexuality, he mentioned, quoting Leonard Cohen, to reflect democracy’s fragility.
“Some judgments take the middle road; others have a bit of flourish,”
he said, defending expressive judicial writing.
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