At the Jaipur Literature Festival on Sunday, former Chief Justice of India D. Y. Chandrachud made a clear case for bail as a norm before conviction, while stressing the judiciary’s responsibility to scrutinise cases that raise concerns of national security.
Responding to a question from senior journalist Vir Sanghvi during a session titled Ideas of Justice, Justice Chandrachud addressed the Supreme Court’s recent refusal to grant bail to activist Umar Khalid in the 2020 Delhi riots conspiracy case.
Khalid and fellow activist Sharjeel Imam have been in custody since 2020. On January 5, the Supreme Court denied them bail, observing that they were involved in the “planning, mobilisation and strategic direction” of the northeast Delhi riots.
Justice Chandrachud began by restating a foundational principle of criminal law. “Bail before conviction should be a matter of right. Our law is based on a presumption, and that presumption is that everyone is innocent until proven guilty.”
He pointed to the human cost of prolonged incarceration without conviction, asking, “Because, if someone remains an undertrial prisoner for five or seven years and is finally proven innocent, how will you compensate for the time lost?”
At the same time, he outlined situations where denial of bail is justified. Drawing from case law, he said bail can be refused if there is a possibility of the accused committing the offence again after release, tampering with evidence, or fleeing the legal process.
“If these three grounds are not present, then bail must be granted,” he said. On cases involving national security, Justice Chandrachud called for greater judicial scrutiny rather than a blanket approach.
“I think that where national security is involved, it is the court's duty to examine the case in depth. Otherwise, what is happening is that people remain imprisoned for years,” he said. He also flagged a structural issue within the lower judiciary.
Terming the routine denial of bail by sessions and district courts a matter of concern, he said judges often fear that their integrity may be questioned. “This is the reason why bail cases reach the Supreme Court,” he said.
Delay in the criminal justice system was another theme of his remarks. Justice Chandrachud underlined that the Constitution remains the highest authority and does not carve out firm exceptions on this front.
“If there is a delay in a speedy trial, the accused is entitled to bail,” he said.
Reflecting on key decisions during his tenure as Chief Justice, he cited judgments on granting permanent commission to women in the armed forces, decriminalising homosexuality, and striking down the electoral bonds scheme.
On judicial appointments, the former CJI suggested broadening the collegium system.
He proposed the inclusion of eminent members of civil society in the process of appointing judges to high courts and the Supreme Court, arguing that this could improve transparency and public confidence in the judiciary.
Asked about his life after retirement, Justice Chandrachud said that for now, he is content as a private citizen. On regrets, he pointed to one issue that remains unresolved.
He said marital rape has not been criminalised even more than seven decades after Independence and argued strongly for legal reform in this area.
Justice Chandrachud also spoke about his efforts to make the Supreme Court more accessible.
He expressed satisfaction that live telecasts of court proceedings were introduced during his tenure, in Hindi as well as all Indian languages listed in the Eighth Schedule of the Constitution. He described this as part of his attempt to turn the apex court into a “people's court”.
Former Supreme Court judge Justice Madan Lokur earlier this week criticised the top court’s recent decision to deny bail to Khalid and Imam in the Delhi riots “larger conspiracy” case, calling it “deeply disappointing” and “completely wrong” on the issue of delay.