Bail as punishment and the uneasy legacy of Justice DY Chandrachud

At the Jaipur Literature Festival, former Chief Justice of India DY Chandrachud articulated a fundamental concern within the Indian criminal justice system — that pretrial detention should not function as punishment. He emphasised that bail before conviction ought to be the norm, grounded in the presumption of innocence, rather than the exception.

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His remarks came in the wake of a recent Supreme Court verdict denying bail to activists Umar Khalid and Sharjeel Imam, accused in the 2020 Delhi riots conspiracy case. These comments have found resonance among civil liberties advocates, reigniting debates about the consistency and accessibility of constitutional protections for personal liberty.

Bail ideals versus practice

There is an unresolved tension within Indian constitutional jurisprudence: whether the judiciary’s commitment to individual freedom has been consistently institutionalised, or whether it varies depending on judicial assignments, political sensitivities, and case prioritisation.

Justice Chandrachud has often reaffirmed the principle that bail before conviction should ordinarily be granted. His concerns about prolonged undertrial detention raise a pressing question: what remedy is available to individuals who spend years in incarceration only to be acquitted after delayed or stalled trials?

While Justice Chandrachud’s ideological commitment to liberty was clear, it often collided with structural constraints and discretionary practices within the judiciary.

While refraining from commenting on pending or resolved cases, Chandrachud emphasised that invocations of national security should not override the need for judicial scrutiny. He cautioned against reducing bail decisions to mechanical denials or populist slogans.

Throughout his judicial career, both as a puisne judge and later as Chief Justice, Chandrachud has been associated with rights-based interpretations of Article 21 of the Constitution and with reinforcing the idea that “the process itself can become punishment” — a phrase used in several of his opinions. Yet, his recent remarks appear to reflect a broader concern that the court’s bail jurisprudence, particularly in politically charged or special legislation cases, may not always align with its own stated ideals.

Unequal access to liberty

A telling example of this gap can be found in the contrasting judicial treatment of two high-profile cases during his tenure. In November 2020, the Supreme Court acted with unusual speed to hear TV anchor Arnab Goswami’s bail petition in an abetment-to-suicide case. A bench led by Justice Chandrachud granted interim relief and criticised the Bombay High Court for failing to protect personal liberty.

The judgment included the powerful statement: “Deprivation of liberty even for a single day is one day too many.”

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At the same time, journalist Siddique Kappan, arrested under the UAPA and PMLA while attempting to report on the Hathras rape case, remained in custody for over two years. Despite his legal team challenging the charges, Kappan’s pleas were delayed, adjourned, or diverted to lower courts.

After being advised to seek relief from the Allahabad High Court, which ultimately rejected his bail plea, he finally secured bail under the UAPA from the Supreme Court in September 2022. His eventual release in February 2023 came only after the High Court granted him bail under the PMLA as well. In total, Kappan spent 846 days in pretrial detention.

Deeper systemic issue

While Justice Chandrachud did not preside over the bench handling Kappan’s early petitions, the divergence between these two cases illustrates a deeper systemic issue. Access to constitutional protections appears to be influenced not only by legal doctrine but also by how quickly a case is heard, which bench is constituted, and whether the matter receives urgent listing. In such cases, procedural timelines and administrative decisions take on constitutional significance.

This dimension was highlighted further in 2023, when concerns were raised over how bail matters were being assigned within the Supreme Court. Critics pointed to a pattern where politically sensitive bail cases were consistently listed before Justice Bela M Trivedi, perceived by some as being particularly strict in granting relief. Justice Trivedi was part of the bench hearing Khalid’s bail plea, which saw multiple adjournments during that time.

The issue came to a head when counsel in a politically sensitive matter objected in open court to the bench composition and sought a change in listing through administrative intervention.

Time as constitutional factor

The then Chief Justice Chandrachud, exercising his authority as master of the roster, declined to intervene, asserting that administrative decisions could not be swayed by perceptions of likely outcomes. He underscored that altering bench composition to suit parties’ preferences would erode judicial independence.

Access to constitutional protections appears to be influenced not only by legal doctrine but also by how quickly a case is heard, which bench is constituted, and whether the matter receives urgent listing.

Nonetheless, in a structure where the Chief Justice controls bench assignments, patterns, whether intentional or coincidental, carry institutional consequences.

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Chandrachud has acknowledged that lower judiciary officers often hesitate to grant bail, fearing that their decisions might attract accusations of impropriety or leniency. This reflects a broader judicial culture in which rejecting bail is often seen as the safer route. Speaking as a retired judge, he is now free to diagnose systemic issues more openly, drawing attention to the chilling effect of national security narratives on judicial independence and bail jurisprudence.

Constitutional principles vs judicial delays

His reflections raise a deeper question about the role of constitutional courts: Is the protection of liberty achieved solely through eloquent judgments, or is it equally dependent on the day-to-day administrative decisions, such as scheduling, bench assignments, and case listings, that determine whether urgent relief is even possible?

Justice Chandrachud’s tenure was marked by instances where access to urgent hearings appeared inconsistent and where high constitutional principles sometimes faltered in the face of procedural delays. These concerns suggest that while his ideological commitment to liberty was clear, it often collided with structural constraints and discretionary practices within the judiciary.

Whether the Supreme Court will, in the future, treat the dimension of time itself as a constitutional factor in the grant of bail remains an open question — one that Justice Chandrachud’s tenure has left as part of his judicial legacy.