BSK LEGAL, SOLICITORS & ADVOCATES

ASSIGNMENT WORK FOR INTERNSHIP

CASE COMMENT

ON

HUSSAINARA KHATOON &ORS. v. HOME SECRETARY, STATE OF BIHAR1

SUBMITTED TO

MR. SANJAY K. CHADHA

MANAGING PARTNER OF BSK LEGAL

SUBMITTED BY

ANURAG SINGH

STUDENT OF BBA.LL.B. (HONS.) VI SEMESTER

JAGRAN LAKECITY UNIVERSITY, BHOPAL

1
1979 AIR 1369, 1979 SCR (3) 532
 Hussainara Khatoon &Ors. V. Home Secretary, State of Bihar2

Petitioner - Hussainara Khatoon &Ors.

Respondent - Home Secretary, State of Bihar

Date of Judgement - 9 March, 1979

Bench - N. Bhagwati, J.; A. Desai, J.

1. INTRODUCTION

In the words of Mr. Justice Brennan “Nothing rankles more in the human heart than a
brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull
things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who
need it most, cannot have it because its expense puts it beyond their reach, the threat to the
continued existence of free democracy is not imaginary but very real, because democracy's
very life depends upon making the machinery of justice so effective that every citizen shall
believe in an benefit by its impartiality and fairness.”

Undertrial prisoners are those persons who are facing trials in the competent courts. They are
technically under judicial custody but for all practical purposes are kept in the same prison
especially in India. In the present case of Hussainara Khatoon &Ors. V. Home Secretary, State
of Bihar , the incompetency of the state to provide free legal aid along with speedy trials lead to
the great violations of human rights along with fundamental rights guaranteed under the Article
21 and a great ignorance of article 39A of the constitution.

The right to a speedy trial is a human right under which it is asserted that a government
prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely. Otherwise,
the power to impose such delays would effectively allow prosecutors to send anyone to jail for
an arbitrary length of time without trial.

2. BACKGROUND OF CASE
2
1979 AIR 1369, 1979 SCR (3) 532
The present case is a landmark judgment on the speedy trial of cases that came to be recognized
as a fundamental right of every accused person. It is a facet of the rightful administration of
justice. The Constitutional obligation upon State to undertake the protection of rights of
individuals under Article 21 is inclusive of the duty to ensure there is a speedy trial of cases. It
also ensures the right to access free legal services to the poor as an essential part of Article 21 of
the Constitution.

The State cannot avoid its constitutional obligation to provide speedy trial to the accused by
pleading financial or administrative inability. The State is under a constitutional mandate to
ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is
also the constitutional obligation of this Court as the guardian of the fundamental rights of the
people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy
trial by issuing the necessary directions to the State which may include taking of positive action,
such as augmenting and strengthening the investigative machinery, setting up new courts,
building new court houses, providing more staff and equipment to the courts, appointment of
additional judges and other measures calculated to ensure speedy trial.

In the present case it was seen that there were a lots of undertrials prisoners in the various jails of
Bihar awaiting for their trial for the times sometimes exceeding the times they would have
served if proven guilty.

The provisions of Bails were also discussed in the present case. Many poor people are detained
in prisons for alleged involvement in bailable offences primarily because they are unable to
furnish surety. This is a serious concern because in such cases bail is a matter of right and people
end up spending long periods in jail merely because they are poor. Many prisoners languish in
prisons because the police do not finish investigation, and file the chargesheet in time. This is a
very serious matter because such people remain in prisons without any inkling of a police case
against them.

These all events and instances led to the judicial activism of the court in present case where court
took cognizance of a writ habeas corpus filed under article 32 of the constitution of India.

3. FACTS OF CASE
The case dealt, inter alia, with the rights of the under trial prisoners on habeas corpus petitions
which disclosed a shocking state of affairs in regard to administration of justice in the State of
Bihar.

An alarmingly large number of men and women, children including, are behind prison bars for
years awaiting trial in courts of law. The offences with which some of them are charged are
trivial, which, even if proved, would not warrant punishment for more than a few months,
perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail,
deprived of their freedom, for periods ranging from three to ten years without even as much as
their trial having commenced.

Though the court issued notice to the State of Bihar, no one has appeared on behalf of the State
and the court, therefore, at this stage proceeded on the basis that the allegations contained in the
issues of the Indian Express dated 8th and 9th January, 1979 which are incorporated in the writ
petition are correct. The information contained in these newspaper cuttings were most distressing
and it was felt sufficient to stir the conscience and disturb the equanimity of any socially
motivated lawyer or judge. Some of the undertrial prisoners whose names were given in the
newspaper cuttings have been in jail for as many as 5, 7 or 9 years and a few of them, even more
than 10 years, without their trial having begun.

4. ARGUMENTS AND DISCUSSIONS

It has been averred in the counter-affidavit to the direction of the Court that many under-trial
prisoners, petitioners herein, confined in the Patna Central Jail, the Muzaffarpur Central Jail and
the Ranchi Central Jail, prior to their release have been regularly produced before the
Magistrates numerous times and have been remanded again and again to judicial custody by
them. However, the Court found this averment unsatisfactory as it does not comply with the
direction of producing the dates on which these under-trial prisoners were remanded.

Moreover, to justify the pendency of cases, it has been contended that in 10% of the cases, the
investigation is held up due to delay in receipt of opinions from experts. This reason was
unacceptable to the Court as the State can always employ more experts and establish more
laboratories.
The court discussed the rights of individuals for a speedy trial and free legal aid guaranteed
under Article 21 of the constitution giving special reference to the Maneka Gandhi v. Union of
India3 along with discussion for Article 39 A that provides for duty of state to provide for free
legal aid to all the people whoever requires so.

The court while relying on the judgement of Maneka Gandhi case4 said that Article 21 confers
a fundamental right on every person not to be deprived of his life or liberty except in accordance
with the procedure prescribed by law and it is not enough to constitute compliance with the
requirement of that Article that some semblance of a procedure should be prescribed by law, but
that the procedure should be "reasonable, fair and just". If a person is deprived of his liberty
under a procedure which is not "reasonable, fair or just", such deprivation would be violative of
his fundamental right under Article 21 and he would be entitled to enforce such fundamental
right and secure his release. Now obviously procedure prescribed by law for depriving a person
of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for
determination of the guilt of such person. No procedure which does not ensure a reasonable
quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There
can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious
trial, is an integral and essential part of the fundamental right to life and liberty enshrined in
Article 21.

The court also discussed about the provisions of bail in India and how poor don’t have access
over that. The court in the judgement accepted the fact that the poor find it difficult to furnish
bail even without sureties because very often the amount of the bail fixed by the courts is
so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or
the Magistrate about their solvency for the amount of the bail and where the bail is with sureties,
as is usually the case, it becomes an almost impossible task for the poor to find persons
sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and
revenue officials or by touts and professional sureties and sometimes they have even to incur
debts for securing their release or, being unable to obtain release, they have to remain in jail until
such time as the court is able to take up their cases for trial

3
1978 AIR 597
4
supra
The court determined that these are leading to grave consequences of the abovementioned
problems, namely,

(1) though presumed innocent, they are subjected to psychological and physical deprivations of
jail life,

(2) they are prevented from contributing to the preparation of their defence and

(3) they lose their job, if they have one, and are deprived of an opportunity to work to support
themselves and their family members with the result that the burden of their detention almost
invariably falls heavily on the innocent members of the family.

5. JUDGEMENT

The Court directed that these under-trial prisoners whose names and particulars are given in the
list filed by Mrs. Hingorani should be released forthwith as continuance of their detention is
illegal and in violation of their fundamental right under Article 21 of the Constitution because
they have been in jail for a duration exceeding the maximum term that they should have been
convicted for.

The Court also directed that on the next remand dates, when the under-trial prisoners, charged
with bailable offenses, are produced before the Magistrates, the State Government should
appoint a lawyer at its own cost for making an application for bail and opposing remand
provided that no objection is raised to such a lawyer on their behalf and with an aim that speedy
trial is executed. The State Government and High Court were required to furnish particulars as
to the location of the courts of magistrates and courts of sessions in the State of Bihar along with
the total cases pending in each court as of 31st December, 1978. They are also required to
explain as to why the disposal of those cases as having been pending for more than six months
not been possible.
 6. RATIO DECIDENDI

The Court found that the under-trial prisoners whose list was filed before the Court have been in
jail for periods longer than the maximum term for which they could have been sentenced if
convicted. The Court recognized the callousness of the legal and judicial system and unjustified
deprivation of personal liberty. The Court also realized the plight of under-trial prisoners who are
for most times, unaware of their right to obtain release on bail or due to poverty, are unable to
engage a lawyer. For this, the need for an adequate and comprehensive legal service program is
called for.

It is well established that Article 21 provides that no person shall be deprived of his life or liberty
except in accordance with the procedure established by law which ought to be ‘reasonable, fair
and just’. A procedure that makes the poor deprived of access to legal services and has to go to
trial without proper representation cannot be regarded as ‘reasonable fair and just’. Providing
free legal services to poor and needy is a component of any ‘reasonable, fair and just’ procedure.
as a layman cannot avail of the expertise elsewhere and lacks the skill and knowledge himself.

Article 39A is a fundamental constitutional directive that emphasizes that free legal service is an
inalienable element of ‘reasonable, fair and just’ procedure for without it a person facing
economic or other disabilities would not be able to secure justice. This right is to be considered
implicit in the guarantee of Article 21.

Moreover, the emphasis is laid towards the under-trial prisoners who have been in jail for more
than half the maximum term of imprisonment for which they could be sentenced if convicted.
There is no reason why these under-trial prisoners should be allowed to continue to languish in
jail, merely because of the fault of the State to not try them within a reasonable period of time.
The possibility of some of them being acquitted of the offenses charged against them yet having
spent several years in jail for offenses which they are ultimately found not to have committed
will be detrimental to their freedom of personal liberty. Hence, the speedy trial of persons
accused of offenses becomes essential to ensure that the accused persons do not have to remain
in jail longer than is absolutely necessary.

The Court recommends to the State and the Central Government, a comprehensive legal service
program which is mandated not only by Article 14 which guarantees equal justice and Article 21
which confers the right to life and liberty, but also embodied in the constitutional directive
embodied in Article 39A.

The State cannot deny the constitutional right to a speedy trial to the accused by pleading
financial or administrative inability.

The court also laid down that bail must be provided if the individual is found to have roots in the
society. It also laid down guidelines for the same. If the Court is satisfied, after taking into
account, on the basis of information placed before it, that the accused has his roots in the
community and is not likely to abscond, it can safely release the accused on his personal bond.
To determine whether the accused has his roots in the community which would deter him from
fleeing, the Court should take into account the following factors concerning the accused:

1. The length of his residence in the community.

2. his employment status, history and his financial condition,

3. his family ties and relationships,

4. his reputation, character and monetary condition,

5. his prior criminal record including any record or prior release on recognizance or on bail,

6. the identity of responsible members of the community who would vouch for his reliability.

7. the nature of the offence charged and the apparent probability of conviction and the likely
sentence in so far as these factors are relevant to the risk of non appearance, and

8. any other factors indicating the ties of the accused to the community or bearing on the risk of
wilful failure to appear.
 7. THE FOUNDATION OF PIL THROUGH HUSSAINARA KHATOON
CASE

The present case of Hussainara khatoon lead to the foundation of PIL i.e. the Public Interest
Litigation in India as part of Judicial activism. The present case as dealt by Justice P.N.
Bhagwati who is along with the Justice Krishna Iyer was the founders or originators of PIL in
India.

In December 1979, Kapila Hingorani filed a petition in regards to the condition of the prisoners
detained in the Bihar jail, whose suits were pending in court. The petition was signed by
prisoners of the Bihar jail and the case was filed in the Supreme Court of India before the bench
headed by Justice P. N. Bhagwati. The petition was filed under the name of a prisoner,
Hussainara Khatoon, and the case was therefore named Hussainara Khatoon v. State of Bihar.
The Supreme Court decided that prisoners should receive free legal aid and fast hearings. As a
result, 40,000 prisoners were released from jail. Thereafter many similar cases have been
registered in the Supreme Court. It was in the case of SP Gupta vs Union of India that the
Supreme Court of India defined the term "public interest litigation" in the Indian context.

The concept of public interest litigation (PIL) is suited to the principles enshrined in Article 39A
of the Constitution of India to protect and deliver prompt social justice with the help of law.
Before the 1980s, only the aggrieved party could approach the courts for justice. After the
emergency era the high court reached out to the people and devised a means for any person of
the public (or NGO) approaching the court to seek legal remedy in cases where public interest is
at stake. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in
court. Filing a PIL is not as cumbersome as a usual legal case; there have been instances when
letters and telegrams addressed to the court have been heard as PILs.

Hence the present case laid down for seed of PIL in the in the garden of India Judiciary which
ultimately gave the tree of PIL in India providing continuous fruits for the unprivileged section
of the society in India from a long period resulting in the public welfare and welfare legislation.
 7. CONCLUSION

"Justice delayed is justice denied" is a legal maxim meaning that if legal redress is available for a
party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively
the same as having no redress at all. This principle is the basis for the right to a speedy trial and
similar rights which are meant to expedite the legal system, because it is unfair for the injured
party to have to sustain the injury with little hope for resolution.

The right to speedy trial is not a fact or fiction but a “Constitutional reality” and it has to be
given its due respect. The courts and the legislature have already accepted it as one of the
medium of reducing the increasing workloads on the courts.

Though there are no specific provisions for speedy trial, by judicial interpretation, the Supreme
Court has held article 21 of the constitution confers the right on the accused. It is in the interest
of all the concerned that the case is disposed off quickly and justice is seem to occur.

In the Judgement, the court rightly accounted the view of Leeman Abbot that,

"If ever a time shall come when in this city only the rich can enjoy law as a doubtful
luxury, when the poor who need it most cannot have it, when only a golden key will unlock
the door to the courtroom, the seeds of revolution will be sown, the fire-brand of revolution
will be lighted and put into the hands of men and they will almost be justified in the
revolution which will follow."