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Hussainara Khatoon vs Home Secretary, State of Bihar: The Right to Speedy Justice

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 few months.

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 few years.

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 same.

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[1]

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 furnish surety.

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 to life.

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.

It states:
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 speedy trial

  1. AIR 1978 SC 598

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