Hussainara Khatoon vs Home Secretary, State of Bihar
is a landmark
judgement which highlighted the importance of timely justice as an integral part
of fair trial, thus widening the scope of article 21. This case also threw
lights on the importance of free legal aid for the poorer section of the society
to ensure their right to be defended in the court of law by an advocate
enshrined in article 39A.
Hussainara Khatoon was one of the 6 women among the 17 undertrial prisoners who
was detained for a prolonged period, and hence the name of the case.
Facts Of The Case
In 1979, the Indian Express newspaper published an article about the hardships
of the undertrial prisoners in the state of Bihar who had been incarcerated for
a very long period, some even exceeding the time that the court had ordered.
Advocate Pushpa Kapila Hingorani moved to the court by filing the issue of writ
of habeas corpus the petitioners stated that a large number of men and women
including children were in jail for years awaiting trial in the court of law and
that the offence even if proved, would not warrant a punishment for more than a
The State of Bihar was directed to file a revised chart clearly showing the
year-wise break-up of prisoners after classifying them on the basis of their
offences into two categories- the one charged with minor offences and the ones
charged with major offences. However such chart was not presented before the
court by the State.
Arguments By The Petitioner
The petition averred that the under-trial prisoner had been incarcerated without
being tried in the court of law. They had been languishing in the jail for
charges, which even if were true, could not attract punishment for more than a
In the counter-affidavit, the respondents submitted that many under-trial
prisoners, petitioners who were, confined in the Patna Central Jail, the
Muzaffarpur Central Jail, and the Ranchi Central Jail, prior to their release
had 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 unable 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 up to 10% cases must 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
The bench consisting of Justice P.N Bhagwati, Justice R.S Pathak, Justice A.D
Koshal delivered the judgement in favour of the petitioner . The immediate
release of the prisoners was ordered:
"We find from the lists of under-trial prisoners filed before us on behalf of
the State of Bihar that the under- trial prisoners whose names are set out in
the chart filed by Mrs. Hingorani to-day have been in jail for periods longer
than the maximum term for which they could have been sentenced; if convicted.
This discloses a shocking state of affairs and betrays complete lack of concern
for human values. It exposes the callousness of our legal and judical system
which can remain unmoved by such enormous misery and suffering resulting from
totally unjustified deprivation of personal liberty. It is indeed difficult for
us to understand how the State Government could possibly remain oblivious to the
continued incarceration of these under- trial prisoners for years without even
their trial having commenced. The judiciary in the State of Bihar also cannot
escape its share of blame because it could not have been unware of the fact that
thousands of under-trial prisoners are languishing in jail awaiting trial which
never seems to commence.
We fail to see how the continued detention of these under-trial prisoners
mentioned in the list of Mrs. Hingorani can be justified when we find that they
have already been in jai for a period longer than what they would have been
sentenced to suffer, if convicted. They have in fact some jail term to their
credit. We, therefore, direct 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 clearly illegal and in violation
of their fundametal right under Article 21 of the Constitution."
The judgement delivered made a few notable observation.
Firstly, it was held that a law which detains a large number of prisoners behind
the bar for a prolonged period of time contradicts the provision of "just,
reasonable and fair" restrictions as embodied in article 21. It called for a
need to change the approach of pre-trial detention and ensure just, reasonable
and fair procedure which has a creative connotation with the Supreme Court's
decision in the Menaka Gandhi case
Secondly, The apex court held that speedy trial is of the essence of criminal
justice and, therefore, delay in trial by itself constitutes denial of justice.
Though speedy trial is not specifically enumerated as a fundamental right, it is
implicit in the broad sweep and content of Art. 21. Speedy trial which means
reasonably expeditious trial, is an integral part of the fundamental right to
life and liberty enshrined in Art. 21.
Expeditious trial and freedom from detention are part of human rights and basic
freedoms. The judicial system which permits incarceration of men and women for
long periods of time without trial is denying human rights to such undertrials
and withholding basic freedoms from them.
Further, the court attributed the delay to the legal and judicial system that
continually denies justice to the poor by keeping them for long years in
pretrial detention to the highly unsatisfactory bail system, which suffers from
a property oriented approach. It proceeds on the erroneous assumption that risk
of monetary loss is the only deterrent against fleeing from justice.
Thirdly, the bench observed that the system of bails operates very harshly
against the poor and it is only the non-poor who are able to take advantage of
it by getting themselves released on bail. The poor find it difficult to furnish
bail even without sureties because very often the amount of the bail fixed by
the Court 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 bench observed that consideration should be made for the poor segment of the
society. The court should investigate into the background of the accused, and if
it has been sufficiently proved that such person is not capable of absconding
then personal bond must be issued. It is only when enough facts and factors laid
down are not found to satisfy the court that such person will not abscond that
such person, belonging to the poorer segment of the society, should be asked to
The bench thus called for a reformation of the bail system to eliminate the evil
effects of poverty and assure a fair and just treatment to the poor in the
administration of justice, it is imperative that the bail system should be
thoroughly reformed so that it should be possible for the poor, as easily as the
rich to obtain pretrial release without jeopardizing the interest of justice.
"Justice delayed is justice denied" is an often-repeated quote that finds
mention in the common parlance of a layman. Speedy trial essentially seeks to
deliver timely justice to the citizen while following the fair, reason and just
procedure of law. Hussainara Khatoon vs Home Secretary, State of Bihar bought
into forefront the distressing state of affairs of the undertrial prisoners in
Bihar who had been denied of their fundamental right to justice due to their
plight of poverty. The observations made by the court further expanded the ambit
of article 21 to include the right to speedy trial as an integral part of right
The case is also significant as it was one of the first public interest
litigation moved to the court of law by Pushpa Kapila Hingorani; an advocate in
the Supreme Court who later came to be known as the "Mother of Public Interest
Litigation". She, later on, revealed the Bhagalpur Blindings case, when the
atrocities of some policemen, who had blinded 33 suspected offenders using
needles and acid.
The Code of Criminal Procedure was amended to insert article 436A in 2005.
Article 436A states that if an undertrial be detained in the jail was half the
maximum punishment that could be awarded for the punishment, then he should be
released on bail on the basis of personal bonds as the security for bail.
436A. Maximum period for which an undertrial can be detained- where a person
has, during the period of investigation, inquiry or trial under this code of an
offence under any law (not being an offence for which the punishment of death
has been specified as one of the punishments under that law) undergone detention
for a period extending up to one-half of the maximum period of imprisonment
specified for that offence under that law, he shall be released in his personal
bond, with or without sureties.
Provided that the court may, after hearing the Public Prosecutor and for reasons
to be recorded in writing, order the continued detention of such persons for a
period longer than one-half of the said period or release him on bail instead of
personal bonds, with or without sureties:
Provided that no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum period of imprisonment
provided for the said offence under the law.
Relevance In The Present Time
Observations made in Hussainara Khatoon vs Home Secretary; State of Bihar are
widely quoted by various courts even in the present time. The right to speedy
trial has been upheld as an integral part of article 21. This especially holds
true in the case of undertrial prisoners as prolonged detention deprives a
person of four fundamental rights- right to liberty, freedom of movement,
freedom of occupation and right to dignity and also the legal right to vote.
The Madhya Pradesh High Court in The Prosecutrix Vs. State of M.P. & Ors
held that "Fundamental right of every citizen including the complainant and
victim is to get justice without any delay; whereas, respondents are causing
delay and thwarting the Principle of Speedy Trial and Right to Access Justice"
while referring to Hussainara Khatoon case.
In the said case a minor who had been raped and the video of the act was put on
the internet was called off and on for questioning which was great source of
harassment and the cause for delay in trial. The condition of the POSCO of
completing the trial within a year was also being violated. The court ordered
the immediate disposal of the said case.
In the Elgar Parishad case, the Bombay High Court reiterated the observation
made in Hussainara Khatoon after the death of The 84 year jurist priest due to
the lack of medical assistance and late admission in the hospital. The court
observed that the right to speedy trial is a fundamental plight and focused on
the inhumane conditions that one must spend his days in as an undertrial
prisoners. This threw light on both the pejorative conditions established in the
Hussainara Khatoon case, namely the plight of under trial prisoners and right to
- AIR 1978 SC 598