Keeping People Behind Bars For Years Before Trial Amounts To Punishment, Turns Law On Its Head : Ex-CJI DY Chandrachud

Former Chief Justice of India DY Chandrachud has said that undertrial custody should not become a form of punishment by keeping people in jail for years. If there is no likelihood of the trial ending within a reasonable period, then the fundamental rights to speedy trial and right to life should be given a priority, and the undertrial should be granted bail. 

Former CJI was responding to the questions on free speech, national security and the Unlawful Activities (Prevention) Act at The Hindu's Lit for Life festival.

Voicing his concern over national security laws invoked by the States to keep undertrials in long periods of incarceration, former CJI raised three points: "First, even if the defence of national security is raised by the State, it has to be scrutinised carefully. Second, if there is no possibility of the trial ending within a reasonable time, then the fundamental right to a speedy trial and the fundamental right to life must have priority. Third, unless we completely revamp the criminal justice administration, we will have more and more cases of this sort where people languish in jail."

Former CJI was responding to the former editor-in-chief of The Hindu, N. Ravi's question regarding the recent order of the Supreme Court denying bail to Umar Khalid and Sharjeel Imam, even after they have spent five years as undertrials.

Ravi asked former CJI: "If you take the case of Umar Khalid and Sharjeel Imam, they have been in prison for over five years without bail and without the trial having started. What do you think that the stringent conditions for bail under the Unlawful Activities (Prevention) Act, 1967, are fair, just, and reasonable if it leads to such an outcome?"

At the outset, Former CJI added a caveat that he does not want to be seen as "too critical" or "passing judgment" on colleagues who were a part of the Court. But then he said that the issues raised are critical and therefore need to be addressed. 

Former CJI said that the allegations attributed to Khalid and Imam are of terrorism but questioned whether speech can itself be an act of terror.

"What is attributed to these two people? The first statement which is attributed is that one of those two persons said that well we will throttle the Chicken's neck which is you know a part of the Northeast and second, he said that we will break the country into pieces. Now, the question we have to ask ourselves and I am not sure if I have answers. We are citizens, thinking citizens and I now speak not as a judge but as a citizen. Does speech, however radical, does speech, however strong, by itself become a form of terrorism? Or is there something that must be added to speech to make it an act of terror? That's the question I think that we have to ask," he remarked.

Former CJI raised his concern over the judgment of the Supreme Court, and said that the fact that the trial will not end within a foreseeable period is just one circumstance which has to be borne in mind in deciding whether or not to grant bail. That is where the right to a speedy trial comes.

He added: "One of the problems of the criminal justice administration in our country is the inability of the prosecution to conclude trials of years and years on an end. [It] really means that if you are not concluding a trial for seven years and you incarcerate an undertrial for seven years, there is some possibility that at the end of the seventh year, you did come to the conclusion that the person was entitled to an acquittal. What happens to the last seven years?"

On national security and presumption of innocence 

Answering the question on whether national security as a ground could justify keeping an undertrial in custody for years, former CJI flagged that these laws allow the foundational principle of criminal law, that is, the principle of presumption of innocence, be reserved. Therefore, making the process a punishment.

"The problem with many of our national security laws today is that they have turned the basic principles of bail on their head. Our law is governed by a foundational presumption, the presumption of innocence, which means that every undertrial is presumed to be innocent until there is a judgment of conviction. The incarceration of an undertrial before trial can't be a form of punishment. The reason why you have to have an undertrial in jail before the trial takes place is to ensure that an undertrial who may otherwise flee from custody or who may tamper with evidence is not allowed to do so," former CJI averred.

He added that if an undertrial is not likely to flee or tamper with evidence, the law must not have any reason to keep him in jail.

Former CJI said: "So, if an undertrial is not likely to flee from custody or tamper with evidence, there is no reason to keep that person inside. Now, what has happened is this that increasingly, and that's my concern, once national security is raised as a defence by the State, and I was really in a dissent, I was in dissent in the Bhima Koregaon,, does the process of judicial review end? To my mind, it can't end because there should be no area of the polity or the political or social which is immune from judicial review. The Court is duty-bound to carefully scrutinise whether national security is involved and second, if it is involved, then is the detention of that particular accused proportional."

At the conclusion, the former CJI shared his experience of dealing with such matters. He said that it is his fundamental philosophy that, unless there is something about this particular offender, namely that the offender will run away from our jurisdiction, or that the offender may tamper with evidence, then bail conditions may be imposed.

"Incarceration before the trial takes place should not be a form of punishment. If you keep people behind bars for five, seven or ten years before the trial takes place, undertrial custody becomes a form of punishment which is turning law on its head."