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Umar Khalid case shows bail denial can't be punishment, says ex-CJI Chandrachud
Former CJI Chandrachud advocates for bail as a right if trials are delayed, stressing the need for timely justice and transparency in judicial processes.
Bail should be the rule if an expeditious trial proves impossible in a case, former chief justice of India Dhananjaya Yeshwant Chandrachud said on Sunday while commenting on the repeated denial of bail to activist Umar Khalid, who has remained in jail since September 2020 without trial.
“Bail, before the constitution, should be a matter of right. Our law is founded on one presumption that every accused is innocent until they are proven guilty at a trial. Pretrial detention cannot be a form of punishment. If someone is jailed for five to seven years before trial and then is acquitted finally, how would you compensate for that lost time? The bail is denied when the accused may repeat offence, tamper the evidence, or flee. If these three exceptions are not made out, bail has to be the rule. Now the problem which we are facing today is this, a lot of our laws, particularly those relating to national security, have turned the law on its head by substituting the presumption of innocence with almost a presumption of guilt,” he said.
Chandrachud added that courts must scrutinise national security cases very carefully.
“Now, one of the serious problems of the criminal justice administration in India is the inability of our prosecutions to conclude trials within a reasonable period of time. If that is so, you have one fundamental right, which is the right to life. Article 21 includes the right to a speedy trial. I am very clear in my mind that unless the well-settled exceptions are made out in a particular case, the accused is entitled to bail. I’m not criticising my court. 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, not an exception,” he stated.
Chandrachud spoke in conversation with journalist Vir Sanghvi during a session titled ‘Ideas of Justice’ at the 19th Jaipur Literature Festival.
According to the former CJI, courts disposed of over 24,000 bail applications during his tenure as CJI. He emphasised, however, a growing public ‘distrust’ of the system, which instils fear among judges—particularly in lower courts—of scrutiny and deters them from granting bail even in simple cases, prompting referrals to higher courts instead.
“The net result is that the Supreme Court now handles 70,000 cases per year. No Supreme Court—except perhaps Brazil’s—deals with such volume. But how do we answer this general culture of distrust for public authority? That’s the problem. I don’t have an answer for it, but that’s the reason why there is a general reluctance,” he said.
Chandrachud also argued for greater transparency in the collegium system to build public confidence.
“Most of the criticism regarding the collegium system is misplaced. The process of appointing judges takes place at different levels. It is vetted in the High Courts. After the recommendations are vetted in the High Court, they are considered by the state governments. State governments are not necessarily the governments that are in power in the center; the file is then vetted by the Intelligence Bureau for a character check. The government of India comes back with its inputs, and finally, the file goes to the Supreme Court of India. I think the answer to your question at present is greater transparency,” he said.
He proposed public criteria for judge selection on the Supreme Court’s website. “The members of the collegium should be recommended by the Chief Justice, and his recommendations should be placed before the President of India for final selection.”
