Case Comment C-11

Hussainara Khatoon v. State of Bihar

AIR 1979 SC 1369

Right to Speedy Trial: Geese, Gander and Judicial Sauce

Introduction
The speedy trial of offences is one of the main objectives of the criminal justice delivery system.
Ample provisions have been made in the Code of Criminal Procedure and Police Act for
expeditious disposal of matters at various stages. 1 Although the problem of delay in disposal of
cases is not a recent phenomenon, of late it has assumed gigantic proportions. The speedy trial of
offences is a desirable goal because long delay can defeat justice. However, the basic norms
which ensure justice cannot be overlooked in achieving the goal of speedy justice because there
is a common proverb that ‘justice hurried justice buried’. In other words, one has to balance the
consideration of speed and justice. The right to speedy trial has become universally recognized
human right. It is in one of the off-shoots of the doctrine of fair, just and reasonable procedure
laid down in Maneka Gandhi2 that Justice Bhagwati in Hussainara Khatoon(1) v. Home
Secretary stated that though the right was not specifically guaranteed by the founding fathers of
the Constitution, it was implicit in the broad sweep and content of article 21.

Facts

January 1979 will remain a memorable month in Indian legal history. It was then that the
jurisprudence known as Public Interest Litigation (PIL) came into existence in India. It was on 8
and 9 January 1979 that The Indian Express (Delhi Edition) published two articles by K.F.
Rustamji, then member of the National Police Commission, based on his Tour Note No.10 in
which he gave 19 instances of prisoners, some of whom had been languishing in jail for periods
that were longer than the time they might have spent had then been charged. Nirmal Hingorani, a
Supreme Court lawyer happened to read the article and moved the SC through a habeas corpus
petition under article 32 of the Constitution. However, she did not have the power of attorney to
1
See, ss.157, 167, 173, 309 of Code of Criminal Procedure and the committal proceeding with respect to sessions
judge; also see, the rules framed under ss. 7,12 of Police Act 1861.
2
Maneka Gandhi v. Union of India, A.I.R 597.(SC, 1978)
approach the court, nor she was a close kin of the undertrials. Those were the days when the
memories of emergency were still fresh in the minds of the public. The extremely legalist
decision of the SC in A.D.M.Jabalpur v. Shivkant Shukla upholding the suspension of the
fundamental rights during the proclamation of emergency had contributed to the identification of
the court as being merely an arm of state. On 22nd January, 1979 a bench consisting of justices
Tulzapurkar and Pathak was persuaded about the gravity of the situation and, in view of the fact
that the findings of Rustamji has been submitted to the Central Government, issued notice to the
state of Bihar and with this all the named undertrials prisoners in the petition were released on
their personal bonds. The court declared that it was ‘a crying shame’ that the judicial system
permitted such a shocking state of affairs to continue that betrayed complete lack of concern for
human values. The Court gave a very cogent reason that the bail system in India is antiquated
and property-oriented. The court laid down a positive obligation on every magistrate in the
country to inform the accused that he/she was entitled to bail and to ensure that the accused had a
lawyer at state expense. Hussainara’s petition case resulted in the release of almost 40,000
undertrial prisoners within 4 months of its filing. Justice Bhagwati said that mere semblance of
procedure was not enough and speedier trial meant reasonably expeditious trial. In this
connection, he observed:

“[O]bviously 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.”

Background

India achieved independence from Britain in 1947, and its constitution came into force in 1950.
As noted above, the drafters did not include explicit language enshrining a defendant’s right to a
speedy trial. In Lachmandas Kewalram Ahuja, the Court held that defendants convicted under
the pre-1950 criminal justice regime needed to have their rights conform to the new
constitution’s fundamental guarantees.3 In order to ensure their appearance at trial, however, the
court then ordered that the defendants “be retained in custody as undertrial-prisoners.” While the
State prepared its new case. On repeated occasions, the Court maintained that the prosecution

3
See Lachmandas Kewalram Ahuja v. Bombay,) S.C.R. 710.(SC,1952)
had to meet in order to justify the continued detention of them. 4 Moreover between 1975 and
1979, when then PM Indira Gandhi suspended the constitution, the Court further buckled, caving
to the government’s demand. It was only after the lifting of the emergency period and Mrs.
Gandhi resounding defeat in the following elections that the Court—in a concerted effort to
regain its legitimacy5-- began fully examining the importance of not letting the incarcerated
languish behind bars. The judgment referenced US Criminal procedure law in sections 6. In the
years that followed, subsequent judgments reiterated the position set forth in Khatoon’s
judgment.

Critical Analysis

Let us consider the significance of the judgment from the standpoint of the undertrials. For this
we will have to see whether the reasons given in the judgment conforms to the existing law as
well as whether it has influenced the subsequent decisions or not. The case brought to the light
the degree of injustice suffered by poor undertrials .It highlighted their wasted lives and
senseless incarceration and enabled the court to pierce the prison walls to give relief. It gave
birth to the judicial activism in cases lacking’lis and in such cases the court ceased to perform the
traditional function of adjudication prescribed by Anglo-Saxon jurisprudence. Instead it
discharged the constitutional obligation under Art.32 to enforce guaranteed fundamental right,
seeking thereby to reform institutional malaise. The social ecology of delayed trials has been
further approved in a number of cases like Nimeon Sangama v. Home Secretary, Govt. of
Meghalaya,7 emphasizing speedy trial and investigations as components of personal liberty. In
Kadra Pahadiya(II) v. State of Bihar8, the court reemphasized that right to speedy trial was a
fundamental right and the aggrieved person may approach the court for necessary directions to
the state government. In view of the consistent judicial assertion, that speedy trial means
reasonably quick trial, the question arises whether a delayed trial is an unfair trial. This answer
was not given in the judgment but was supplied by the SC in Champa Lal v. State of

4
Madhu Limaye v. Magistrate, 2S.C.R. 711 (SC,1971)
5
See SATHE, supra note 56, at 106;
6
Khatoon v. Home Ministry, 3 S.C.R.169 (SC.1979) ( referencing the sixth amendment of US constitution and
United States Bail Reform Act of 1966)
7
(1980) 1 S.C.C. 700.
8
A.I.R 1167.(S.C,1982)
Maharashtra9 which also restricted the scope of right. Although the leaders of The SC bar
noticeably failed to the judicial call for assisting the court in the Hussainara cases they have not
been slow at all in attempting to exploit the capital constitutional gain of a Hussainara, namely,
that article 21 entails a right to speedy trial. Justice Krishna Iyer’s aphorism in Nandini
Satpathy10 that “when the big fight forensic battles the small gain” is of problematic import.
Hussainara case failed to lay down that how in the course of social action for the dispossessed
and the deprived can be conveniently invoked for other causes and by other classes. Justice O
Chinnappa Reddy reaffirmed in Champalal that Art 21, of necessity, confers a right to speedy
trial. They invoked the holding in Hussainara and he reinforced this position with the helpful
observation that the denial of ‘a speedy trial may with or without proof of something more lead
to an inevitable inference of prejudice and denial of justice. It is prejudice to a man to be
detained without trial. In Champalal, the very existence of the right to a speedy trial is the basis
of the whole proceedings and this right is now placed on a sounder footing than the interminable
nature of the Hussainara proceeding. Nothing in Champalal weakens the contribution of Bail
jurisprudence; rather every observation in it reinforces Hussainara. Champalal is more
significant because it achieves three additional results which Hussainara could not achieve: First,
the holding establishes that the right to reasonably expeditious trial, although enunciated in 1979,
is a right which was integral to Art. 21 since the inception of the constitution. The Hussianara
interpretation has been construed, in the best libertarian tradition, as retrospective and not merely
a prospective ruling. If that were not done, Champalal would simply not have attracted the right
to speedy trial. In this sense, champalal, places the right to a speedy trial as an integral aspect of
art.21. Secondly, the court did not spell out the effects of the denial of speedy trial and avoided
the question by saying that it would be seen when the matter would be heard on merit, whereas
champalal explicitly faces the question of consequences of it. Third, it defines the contours of
this newly invented right. While the judge observed in champalal that a speedy trial is an implied
ingredient of a fair trial, the converse is not necessarily true. A delayed trial is not necessarily an
unfair trial. The delay may have been caused by the accused himself. It has to be demonstrated
that the delay has caused prejudice to the accused. So now with the Champalal judgment this
invented right becomes more clear which could not be possible done after reading of Hussainara

9
A.I.R.1981. S.C. 1675
10
Nandini Satpathy v. P.L. Dani, 2 S.C.C.424.(1978)
judgment. The questions that are not raised in the Hussainara’s case have been explicitly
elucidated upon by the subsequent judgment like:

(1) The trial has been unreasonably delayed or that the trial has taken inordinately long time.

(2) The accused has not contributed to the time consumption by recourse to any stratagem to
delay investigation.

(3) Owing to prosecution somnolence or long periods of time taken by the trail judiciary itself,
the trial has not even begun.

Even if we see that the accused has a fair part in delay of the proceedings and because of this he
would be denied bail or any other relief, then it becomes doubly problematic. It is unfair because
it enables individual justices to superimpose their own value preferences over the values
specifically expressed in statutory law, reinforced by the decisional law as well. The criminal law
and procedure in India presents a finely honed opportunity- structure for any person caught in the
network of law enforcement. This opportunity-structure is provided to ensure that the might of
the state does not overbear an individual confronted with serious criminal charges. When an
individual seeks to use this opportunity-structure either to establish his innocence or to put the
prosecution to the acid test of discharging its burden adequately, he thereby prolongs his trial. So
now whether or not accused has prolonged the trial would ultimately take its color from whether
or not SC ultimately holds him guilty. None of the judgments after Khatoon has aggressively
spoken about this and the lacunae is still to get remedied.

Conclusion

PIL was originally perceived in this judgment to be a non-adversarial remedial jurisprudence

which directed courts to act to protect the fundamental rights of the disadvantaged sections of the
society. The court departed from the traditional judicial function entailed in Anglo-Saxon
jurisprudence to provide relief. The court characterized the legal process as collaborative in
contradiction to the adversarial litigation. Khatoon’s case exemplified the acceptance of the press
reports as basis of petitions, releasing the burden from the prosecution and grant of immediate
relief. It has resulted in law taking on a new identity as an instrument of justice. The remedial
nature of law, socially motivated court action, adherence to the principle of substantive equality,
the procedural flexibility has lowered the barriers between man and the court. If we see the
judgment even though it has certain lacunae but still the judgment has made an impact since it
was the first time ever a person even dared to look at the position of the undertrials.