Bail before conviction is a right, but national security cases need deeper scrutiny: Chandrachud

Former CJI (Chief Justice of India) D.Y. Chandrachud on Sunday said that bail before conviction should be treated as a matter of right, while stressing that courts must examine cases in depth where national security concern are involved.

Speaking at the Jaipur Literature Festival during a session titled Ideas of Justice, Chandrachud was responding to a question from senior journalist Vir Sanghvi on the Supreme Court’s recent refusal to grant bail to activist Umar Khalid in the 2020 northeast Delhi riots conspiracy case.

“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,” Chandrachud said.

He added, “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?”

Khalid and fellow activist Sharjeel Imam have been in custody since 2020. While denying bail earlier this month, the Supreme Court of India had observed that the two were involved in the “planning, mobilisation and strategic direction” of the riots.

Chandrachud said bail could justifiably be denied if there was a likelihood of the accused committing the offence again, tampering with evidence or fleeing the law. “If these three grounds are not present, then bail must be granted. 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.

Terming the denial of bail by sessions and district courts a matter of concern, Chandrachud said judges often fear that their integrity may be questioned. “This is the reason why bail cases reach the Supreme Court,” he said.

He also flagged delays in the criminal justice system, saying the Constitution remained supreme. “If there is a delay in a speedy trial, the accused is entitled to bail,” he said.

Reflecting on landmark rulings during his tenure, Chandrachud cited decisions granting permanent commission to women in the armed forces, decriminalising homosexuality, and striking down the electoral bonds scheme.

He suggested including eminent civil society members in the collegium system to enhance transparency in judicial appointments. On post-retirement roles, Chandrachud said he was currently enjoying life as a private citizen.

Expressing regret, he said marital rape had not been criminalised even after seven decades of Independence and strongly advocated legal reform in the area.