HUSSAINARA KHATOON & ORS. v.

STATE OF BIHAR, AIR 1979 SC 1369

BACKGROUND

In the present case, it was upheld by the Hon’ble Court that speedy trial of cases is the
fundamental right of every accused person. It is one of the integral facets to administer justice.
Under Article 21, state is obliged to protect life and personal liberty of the individuals; this also
includes within its ambit to ensure that there is speedy trial of cases. It is submitted that
providing the poor with free legal aid is also essential for speedy trial; ergo it also forms part of
Article 21 of the Constitution.

INTERNATIONAL LAW RELATED TO SPEEDY TRIAL

The right to have a speedy trial was first recognized by the United States of America through the
sixth amendment to its constitution. This right has even been recognized by International
Charters and Conventions, namely International Convention on Civil and Political Rights
(ICCPR), under Article 19(1) declares that "everyone has the right to liberty and security of
person and that no one shall be subject to arbitrary arrest or detention.”This convention has been
ratified by India on 10* April 1979.
Even Article 9 (3) declares that anyone who has been detained on a criminal charge shall be
brought promptly before a Judge or other officer authorized by law within a reasonable time.
Further Article 10 (1) of the Convention says "all persons deprived of their liberty shall be
treated with humanity and dignity." The Virginia Declaration of Rights, 1776 also has
recognized this right. The Hon’ble Supreme Court of India has interpreted Article 21 in a way to
include right to speedy trial within its ambit as an essential facet of the same. This interpretation
is of extreme relevance keeping in mind the delay in disposal of cases within a reasonable time
which thereby diminishes the reliability of the verdict.
FACTS OF THE CASE

The present case was related with the rights of the under trial prisoners on habeas corpus
petitions and their subsequent release. It portrayed a sad state of the administration of justice in
the State of Bihar. A large number of persons which even included women, children were behind
the bars and were waiting for the trial from many years. Many of these prisoners were charged
with the minor offences that would just award them with imprisonment for some months yet they
were in the jails since long as they were not subjected to fair trial. The state of Bihar was even
directed to file a revised chart which clearly mentions the year-wise break-up of the under-trial
prisoners after segregating the prisoners into two categories viz. the ones charged with minor
offenses and others who have been charged with major offenses, this direction was not carried
out by the state. The petition showed that the under-trial prisoners who have done minor offences
are languishing in the jail for more than 5-10 years, without any trial. These people were poor
and hence they could even not afford to furnish bail.

ARGUMENTS BY PETITIONERS

It has been averred in the petition that the petitioners are under-trial prisoners and they were not
subjected to any trial. They have been languishing in the jails for years even when their offences
were minor and could have fetched them only few months of imprisonment. The other reason of
their plight was their poverty, due to which they could not even furnish bail, like the rich.

ARGUMENTS OF RESPONDENT

In the counter-affidavit, the respondents submitted 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, and thereby were
remanded again and again to judicial custody by the Magistrates. However, the Court didn’t find
this averment to be true as the respondents were not able to produce the dates on which these
under-trial prisoners were remanded. Further, to justify the increasing number of pending cases,
the Respondents submitted that usually the investigation in the cases has to be halted as there is
delay in receipt of opinions from experts. However the Court rejected this contention on the
grounds that State can employ alternative methods for the same.

THE SUNIL BATRA CASES

The importance of providing prisoners’ with rights was first realized in the Sunil Batra cases. Yet
the Central Government did not take up any significant step towards this direction, except for
appointment of some Prison Reform Committees.
Sunil Batra (I) case: It was filed by two prisoners of the Tihar Jail. They challenged the legal
validity of Section 30 and 56 of the Prisons Act. Sunil Batra, a convict who was awarded death
penalty challenged the solitary confinement to which he was subjected to. Charles Sobhraj, who
was a national of France and then an under trial prisoner. He challenged the act of the
Superintendent of Jail, who had put him in bar fetters for an unusually long period starting from
the date of incarceration. Such a gruesome
picture was portrayed at some stage of the hearing, that
Chief Justice M. H, Beg, V. R. Krishna Iyer, J. and P. S. Kailasam, J. who were the judges
hearing the case visited the Central Jail, Tihar.
The Court dismissed the petition. But through various interim orders the Court has guaranteed a
fair treatment to the petitioner inside the prison.
Sunil Batra (II) case: This case was a result of a letter which was written by Sunil Batra
addressing to one of the judges of the Supreme Court in which he alleged that one of the wardens
of Tihar Jail had caused bleeding injury to a convict named Prem Chand by forcing a stick into
his anus, thereby Court liberalized the difficulties and formalities involved in the procedure of
filing the writ of habeas corpus. The court then following the footsteps of America employed the
writ, to keep a check on the penal machinery of the state and also to stop the brutalities and
tortures inflicted on the prisoners. Thereby, the Court treated Sunil Batra’s letter as a petition of
habeas corpus and employed the writ to the Lieutenant Governor of Delhi and the Superintendent
of Central Jail ordering that Prem Chand should not be tortured in the prison, also the jail
authorities were further directed to provide him with adequate medical attention.
In this case Justice Krishna Iyer openly criticized the lethargic attitude of the legislature to
recognize the humanization of the prison system.
RIGHT OF SPEEDY TRIAL
This right was recognized due to series of cases which came up before the Courts involving
prison under-trials, who were in jail for a period longer than the maximum sentence that could
have been awarded to them had they been convicted if their cases were tried. In Hussainara
Khatoon v. Home Secretary, Bihar it was upheld that such a procedure which keeps the people
behind bars without trial for such a long period of time cannot be regarded as reasonable, just or
fair, ergo it is not in conformity with the requirements of Article 21. Bhagwati, J., in this case
observed that although the right to have a speedy trial is not explicitly mentioned as a
fundamental right in the Indian Constitution, yet it is implicit in the broad sweep and content of
Article 21. In Hussainara case, the Court re-emphasized the fact that there should be expeditious
review to withdraw the cases against under-trials who are behind the bars for more than two
years without any trail. The Respondents had submitted that the delay in the disposal of cases is
caused due to the time experts take to deliver their opinion. But, the Court dismissed this
contention and reiterated that the investigation must be completed within a time-bound program
in respect of under trials and also gave further directions that need to be followed by the
administration in order to quickly dispose of the cases of under trials. The Court considered the
affidavits filed in response to its earlier orders and passed further directions. As the earlier
directions of the Court were not followed, thereby the Court ordered release of under trials who
were behind the bars for periods more than the maximum term which could have been imposed
upon them if they were tried. It was observed by the Court that detaining the people for so long is
explicitly against the law and also violative of the fundamental right of prisoners under Article
21. The Hon’ble Supreme Court even cited the Hoskot case wherein it was recognized that the
right to free legal services for the poor and the needy is essential facet of reasonable, fair and just
procedure which is implicit in the fundamental right under Article 21. The court also directed the
State to provide free legal aid to the poor so that they are not deprived of their right to apply for
the bail.
RIGHT TO LEGAL AID
Legal Aid, is an important facet to ensure that the basic human rights of the prisoners are not
violated. This right also finds its mention in Article 39A of the Indian Constitution. This statute
has been partially been implemented in Section 304 of the Cr.P.C., which provides for legal aid
to the accused in other situations. Courts cannot be comatose in the face of Articles 21 and 39A
of the Constitution. If for an instance, a prisoner who has been sentenced to imprisonment but
due to poverty he is unable to exercise his constitutional and statutory right of appeal, therefore
in such cases, the Supreme Court under Article 142 read with Articles 21 and 39A of the
Constitution has the power to appoint a counsel for the concerned prisoner and provide him with
legal assistance. Khatri (II) v. State of Bihar was the first case in Indian jurisprudence to discuss
at length the importance of right to legal aid. In this case, the Court observed that the State is
constitutionally bound to provide free legal aid to an accused. This duty of the state is not only
confined to the stage of trial but it even extends to the stages wherein the prisoner is produced
before the magistrate for the first time or he has been remanded. One of the essential facets of
reasonable, free and just procedure to try any case against the accused is to provide that person
with the right to free legal services. The Court was clear on the fact that the State cannot deny to
be bound by this duty on the grounds of financial or administrative inability or that none of the
prisoners asked for legal aid. Even the Magistrate or Sessions judge is under an obligation to
make the accused aware about his right to receive free legal aid at the expense of the State.
However, there is an exception to this rule, in the case where the offence is of a particular
category i.e. economic offences or offences against law prohibiting prostitution or child abuse,
where social justice may require that free legal services need not be provided by the State.
RIGHT TO FAIR PROCEDURE
Whenever one talks about the rights of prisoners in India, the first case that comes to one’s mind
is nonetheless the celebrated case of A.K. Gopalan v. State of Madras. In this case, the
petitioners contended that the phrase “procedure established by law” mentioned in Article 21 of
the Constitution includes a ‘fair and reasonable’ procedure and not only a mere semblance of the
procedure made by the State for the deprivation of life or personal liberty of individuals. The
majority opinion in this case was of the view that the situations under which a person is totally
deprived of his personal liberty under a procedure established by law, the fundamental rights
including the right to freedom of movement are not available to that person. It was further
observed that “There cannot be anything which can be called as absolute or uncontrolled liberty
that is wholly freed from restraint, because in such a case it would lead to anarchy and disorder
in the state. Ergo, restrictions have to be placed in certain cases upon the free exercise of the
individual rights in order to safeguard the interest of the society: on the other hand, social control
which exists for public good has got to be restrained, lest it be misused to the detriment of
individual rights and liberties.
PERSONAL LIBERTY
In the case of Kharak Singh v. State of U.P. the Hon’ble Supreme Court of India considered the
relationship of article 19 and 21 with that of the rights of the prisoners. The Court compared
Article 21 of the Indian Constitution with the Fourth and Fourteenth Amendments to the United
States Constitution. The word ‘liberty’ mentioned in Article 21 has a prefix to it which is
‘personal’. This phrase ‘personal’ liberty in Article 21 includes within its ambit all varieties of
rights which together make the personal liberties of men except those rights which are already
protected under the provision of Article 19 (1). Then came the landmark case of Maneka
Gandhi v. Union of India in the human rights jurisprudence which was quite significant as far as
the concept of personal liberty is concerned in India. The phrase ‘personal liberty’ in Article 21
is very wide in its scope and covers various rights within it that in total constitutes personal
liberty of man. These personal liberties are the fundamental rights and have also been given
additional protection under Article 19 of the Indian Constitution.
JUDGMENT IN A GLANCE

The Court ordered to release all the under-trial prisoners whose names were there in the list
submitted by Mrs. Hingorani. The Court further observed that detaining them for any long would
be illegal and is clearly against their fundamental right under Article 21as these prisoners are
behind the bars for the time period which is way longer than what could have been awarded to
them if they were tried and convicted. Another direction by this Hon’ble Court was to provide
the under-trial prisoners charged with bailable offenses, free legal aid by the State, on their next
remand dates before the Magistrates. This was directed so that even the poor under-trial
prisoners could file an application for bail and this can even ensure that the aim of speedy trial is
executed.  The Supreme Court further directed the State Government and High Court to furnish
particulars which included all the details of the location of the courts of magistrates and courts of
sessions in the State of Bihar and the total number of cases which are pending in each court as of
31st December, 1978. They are also required to explain the reasons which are involved in the
delay in the disposal of the cases, if the said case is pending for more than six months.

OVERVIEW OF THE JUDGEMENT

In the present case, petition for habeas corpus was filed by the petitioners, this petition portrayed
the condition of administration of justice in the State of Bihar. It showed that there are a large
number of people who are awaiting their trail in the Court since a long time but in vain. Out of
these under-trial prisoners most of them are charged for minor offences which would have given
them imprisonment for only a few months but these prisoners are behind the bars since years
without any trial to provide them with justice. It is the lethargic attitude of the administration
which just puts the persons behind the bars without giving them a fair chance of trial. Although
these days human rights are being demanded for everyone in the world but are these under-trial
prisoners not to be protected from such torture, of course they should also be eligible of human
rights. It is very much possible that these prisoners may be acquitted or be imprisoned for a
lesser time period but all this is only possible if they are subject to free and fair trial. Just locking
them behind the bars would not do justice to them in any way. These prisoners too are humans
and now the government and judiciary should realize and recognize their rights who waiting
patiently, impatiently perhaps, but in vain, for justice--a commodity which is tragically beyond
their reach and grasp. This is the right time to help them through the instrument of law by
revamping and restructuring the judicial system. It is also submitted that many of the under-trial
prisoners are poor and hence are unable to furnish bail application like the rich, hence Court
directed the Government that such prisoners should be provided with the free legal aid.
Therefore, the petitions served their purposes and stand disposed of leaving the further
implementation to the High Courts.

REFERENCES

1. Maneka Gandhi v. Union Of India, 1978 AIR 597

2. M. H. Hoskot v. State Of Maharashtra, 1978 AIR 1548
3. Rhem v. Malcolm, 377 F. Supp. 995 (S.D.N.Y. 1974)
4. AK Gopalan v. State of Madras AIR 1950 SC 27
5. Kartar Singh v. State of Punjab (1994) 3 SCC 569
6. Sunil Batra v. Delhi Administration (1978) 4 SCC 494
7. Khatri (II) v. State of Bihar AIR 1981 SC 928