Former Chief Justice of India, Dhananjaya Yeshwant Chandrachud, has strongly advocated for a fundamental reevaluation of the principles governing bail in India, emphasizing that pretrial detention should never become a substitute for punishment. Speaking on Sunday at the 19th Jaipur Literature Festival during a session titled “Ideas of Justice”, Chandrachud addressed the repeated denial of bail to activist Umar Khalid, who has remained incarcerated since September 2020 without trial, using the case as a lens to highlight systemic challenges in the Indian criminal justice system.

Chandrachud underscored that bail should be the rule, not the exception, particularly when an expeditious trial proves impossible. “Bail, before the Constitution, should be a matter of right. Our law is founded on one presumption: every accused is innocent until proven guilty at a trial. Pretrial detention cannot be a form of punishment,” he said. Chandrachud highlighted the severe consequences of prolonged detention, noting that if an individual is jailed for five to seven years before trial and later acquitted, the lost time cannot be adequately compensated, leaving irreparable personal, social, and professional damage.

He emphasized that the legal system allows for denial of bail only under three narrowly defined circumstances: if the accused is likely to repeat an offence, tamper with evidence, or flee from justice. “If these exceptions are not made out, bail has to be the rule. The problem today is that many laws, particularly those relating to national security, have inverted the presumption of innocence, treating accused individuals as guilty until proven otherwise,” Chandrachud said.

Chandrachud argued that courts must exercise heightened scrutiny in national security cases to ensure that procedural safeguards are maintained. He stressed that delays in trial exacerbate the problem, making pretrial detention punitive in effect. “One of the serious problems in criminal justice administration is the inability of our prosecutions to conclude trials within a reasonable period. Article 21 of the Constitution guarantees the right to life, which includes the right to a speedy trial,” he said. He noted that unless well-established exceptions exist in a particular case, the accused is entitled to bail.

During the discussion with journalist Vir Sanghvi, Chandrachud also examined broader systemic issues in the Indian judiciary, including public distrust of the courts and the resulting pressure on judges. “Courts disposed of over 24,000 bail applications during my tenure as Chief Justice,” he noted. However, he acknowledged that growing public scrutiny and fear of criticism often discourage judges—especially in lower courts—from granting bail, even in straightforward cases, leading to unnecessary referrals to higher courts.

“This has created a backlog. The Supreme Court now handles 70,000 cases per year—no Supreme Court, except perhaps Brazil’s, deals with such volume. But the underlying problem is a culture of distrust in public authority, which affects judicial discretion,” Chandrachud explained. He indicated that building public confidence in the legal system requires both transparency and efficiency, along with safeguards to protect judicial independence.

Chandrachud further spoke about the collegium system for appointing judges, a topic often criticized for its opacity. He defended the system, stating that appointments are rigorously vetted at multiple stages. “The process begins at the High Court, where recommendations are reviewed. These files are then considered by state governments, which may not align politically with the Union government. They are vetted by the Intelligence Bureau for character checks, and finally, the file reaches the Supreme Court,” he said.

Despite this multi-layered process, Chandrachud acknowledged that public skepticism persists. To address this, he proposed greater transparency, including publicly accessible 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,” he suggested. Such measures, he argued, would improve accountability while preserving judicial independence.

Returning to the topic of bail, Chandrachud critiqued the current state of national security and anti-terror legislation, which often prioritizes preventive detention over the presumption of innocence. He highlighted the importance of balancing state interests with constitutional protections. “We must ensure that laws do not become instruments for prolonged pretrial detention. Bail should not be treated as an exception; it is a constitutional right when trials cannot proceed expeditiously,” he said.

Chandrachud’s comments also shed light on the psychological and social toll of pretrial incarceration. Extended detention, especially without trial, has profound effects on the accused’s mental health, family life, and societal reintegration. The former CJI stressed that a failure to grant bail in cases where the three exceptions do not exist effectively punishes individuals without a verdict, undermining the principles of justice and fairness.

In addition to his focus on bail and pretrial detention, Chandrachud highlighted the need for judicial reform to address case backlogs and delays in trials. “A fair justice system must be both timely and transparent. Without timely trials, the fundamental rights guaranteed under Article 21 are compromised. Expeditious trials and bail should go hand in hand to protect citizens’ rights,” he emphasized.

The session also examined public perception of the judiciary. Chandrachud noted that a culture of distrust often pressures judges to err on the side of caution, resulting in conservative rulings that limit procedural freedoms like bail. He urged a recalibration of judicial discretion to uphold the constitutional presumption of innocence and to ensure that courts do not inadvertently transform pretrial detention into punishment.

Chandrachud concluded his remarks by reiterating that bail is a fundamental right, not a privilege, and that the justice system must guarantee timely trials and procedural fairness. He underscored that law, particularly in criminal and national security cases, should preserve the balance between public safety and individual liberty, and that judicial processes must be transparent to maintain public confidence.

In essence, the former CJI’s observations highlight several systemic issues: the misuse of pretrial detention as de facto punishment, the backlog and delay in judicial proceedings, public distrust in judicial processes, and opacity in judicial appointments. By advocating for bail as a right when trials are delayed and calling for transparency in judge selection, Chandrachud seeks to reinforce the constitutional principles of fairness, justice, and timely redress, while addressing growing public concerns about the credibility of India’s legal system.

The comments on the Umar Khalid case serve as a pointed example of these systemic challenges, illustrating how prolonged pretrial detention, particularly in politically sensitive cases, can erode trust in justice and highlight the urgent need for procedural safeguards and reforms in India’s criminal justice framework. Chandrachud’s remarks are likely to resonate with legal scholars, human rights activists, and policymakers seeking to ensure that constitutional rights are meaningfully upheld in practice, even in complex and high-profile cases.

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