Bail before conviction should be matter of right: Ex-CJI Chandrachud on Umar Khalid’s plea

The statement by former Chief Justice of India (CJI) Y.V. Chandrachud, asserting that "bail before conviction should be a matter of right" and underscoring the principle of "innocent until proven guilty," resonates deeply within India's constitutional framework and criminal justice system. This observation, made in the context of activist Umar Khalid's plea, highlights a persistent tension between individual liberty and state power, particularly in cases involving serious offenses or special laws.

**Background Context and What Happened:**

At the heart of any fair legal system is the presumption of innocence, a foundational tenet stating that an individual is considered innocent until their guilt is proven beyond a reasonable doubt. This principle is not merely a legal technicality but a safeguard against arbitrary state action and a cornerstone of human dignity. In India, while enshrined implicitly, its application, especially concerning bail, often faces challenges. Umar Khalid, a student activist, has been in custody since September 2020 under the stringent Unlawful Activities (Prevention) Act (UAPA) in connection with the 2020 Delhi riots. His prolonged detention without conviction has brought into sharp focus the difficulties in obtaining bail under special laws, where the burden of proof for bail is often reversed or significantly heightened. CJI Chandrachud's comment, therefore, serves as a powerful reminder of the fundamental philosophy that should guide judicial discretion in bail matters.

**Key Stakeholders Involved:**

Several key players are central to this discourse. The **Judiciary**, comprising the Supreme Court, High Courts, and lower courts, is tasked with interpreting laws, including bail provisions, and upholding constitutional principles. Their decisions directly impact the liberty of individuals. The **Accused/Defendants**, such as Umar Khalid, are individuals whose freedom is at stake and who rely on the justice system to protect their rights. The **Prosecution/State**, represented by various law enforcement agencies and public prosecutors, aims to secure convictions and often argues against bail, especially in cases perceived to threaten national security or public order. The **Legislature**, primarily the Parliament, enacts laws like the Criminal Procedure Code (CrPC) and special statutes such as UAPA, which govern arrest and bail. Finally, **Civil Society and Human Rights Activists** play a crucial role in advocating for judicial reforms, fair trials, and the protection of fundamental rights, often highlighting cases of prolonged detention.

**Significance for India:**

This issue holds immense significance for India. Firstly, it directly impacts **individual liberty**, a fundamental right guaranteed by Article 21 of the Indian Constitution, which states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Prolonged incarceration of undertrials, even before conviction, infringes upon this right. Secondly, it addresses the severe issue of **prison overcrowding** and the large number of **undertrial prisoners**. As of December 2021, over 77% of India's prison population consisted of undertrials, many of whom are poor and marginalized, unable to afford legal representation or bail bonds. Denying bail as a matter of routine contributes significantly to this crisis. Thirdly, it underscores the need to balance **state security concerns** with **fundamental rights**. While laws like UAPA are designed to combat terrorism and serious threats, their stringent bail provisions often lead to pre-trial detention that can be seen as punitive rather than preventive, eroding the presumption of innocence.

**Historical Context and Constitutional Provisions:**

India's bail jurisprudence is primarily governed by the **Criminal Procedure Code, 1973 (CrPC)**. Sections 436, 437, 438, and 439 deal with different types of bail. Section 436 makes bail a right for bailable offenses. For non-bailable offenses, Section 437 grants discretion, but with conditions. Section 438 provides for anticipatory bail, a concept upheld in landmark judgments like *Gurbaksh Singh Sibbia v. State of Punjab* (1980). The Supreme Court has repeatedly emphasized that 'bail, not jail' is the rule, not the exception, in cases like *State of Rajasthan v. Balchand* (1977). However, special laws like the **Unlawful Activities (Prevention) Act (UAPA), 1967**, the **Prevention of Money Laundering Act (PMLA), 2002**, and the **Narcotic Drugs and Psychotropic Substances Act (NDPS) Act, 1985**, contain 'reverse clauses' for bail. For instance, Section 43D(5) of UAPA states that bail shall not be granted if the court is of the opinion that there are 'reasonable grounds for believing that the accusation against such person is prima facie true.' This places a heavy burden on the accused to prove their innocence at the bail stage itself, effectively undermining the presumption of innocence. This tension between general criminal law and special statutes is a critical area of debate.

**Future Implications:**

CJI Chandrachud's statement could serve as a moral and legal impetus for **judicial introspection and legislative reform**. It may encourage courts to adopt a more liberal approach to bail, especially in cases where prolonged detention without conviction seems disproportionate. There is a strong call for Parliament to review the stringent bail provisions in special laws like UAPA to ensure they align with constitutional guarantees. Furthermore, it could spur broader **prison reforms** aimed at decongesting jails and ensuring faster trials. Ultimately, the future implications point towards a continued effort to strengthen the rule of law, ensuring that the principle of 'innocent until proven guilty' is not merely a slogan but a lived reality for every citizen, fostering greater faith in the justice delivery system and upholding the democratic values enshrined in the Constitution.