Former Chief Justice of India D Y Chandrachud on Sunday said that national security cannot be used as a blanket reason to deny bail and stressed that bail before conviction should be treated as a matter of right under Indian law.
Speaking at the Jaipur Literature Festival during a session titled Ideas of Justice, Justice Chandrachud made these remarks while responding to a question by senior journalist Vir Sanghvi on the Supreme Court’s recent refusal to grant bail to activist Umar Khalid in the 2020 Delhi riots conspiracy case. Khalid and activist Sharjeel Imam have been in jail since 2020. On January 5, the Supreme Court denied bail to both, observing that they were allegedly involved in the planning, mobilisation and strategic direction of the violence in northeast Delhi.
Justice Chandrachud said the criminal justice system is based on the presumption of innocence. “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 said.
He raised concern over long periods of pre-trial detention and asked how the system compensates someone who spends years in jail and is later acquitted. “If someone remains an undertrial prisoner for five or seven years and is finally proven innocent, how will you compensate for the time lost,” he asked.
The former Chief Justice explained that bail can be denied only in specific situations, such as when there is a risk of the accused committing the offence again, tampering with evidence, or fleeing from the law. “If these three grounds are not present, then bail must be granted,” he said.
Referring to cases involving national security, Justice Chandrachud said courts must carefully examine whether such claims are genuine and whether continued detention is justified. “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, adding that national security cannot become an automatic excuse to keep people behind bars.
He also expressed concern over the reluctance of sessions and district courts to grant bail, saying many judges fear that their integrity may be questioned. “This is the reason why bail cases reach the Supreme Court,” he said.
Justice Chandrachud pointed to delays in criminal trials and said prolonged incarceration violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. “If there is a delay in a speedy trial, the accused is entitled to bail. The Constitution is supreme and there is no absolute exception to this,” he said.
During the discussion, he also spoke about major judgments delivered during his tenure as Chief Justice, including granting permanent commission to women in the armed forces, decriminalising homosexuality, and striking down the electoral bonds scheme.
On judicial reforms, Justice Chandrachud suggested that eminent members of civil society should be included in the collegium system to improve transparency and public trust in the judiciary. He also said he regretted that marital rape has still not been criminalised even decades after Independence.
The former Chief Justice said he is currently enjoying life as a private citizen and expressed satisfaction over efforts made during his tenure to make the Supreme Court more accessible, including live streaming of proceedings in multiple Indian languages.
