This article has been written by Sakshi Jain. The article contains a brief overview of the case of Hussainara Khatoon v. State of Bihar. It examines the right to a speedy trial and the right to free legal aid for every citizen guaranteed as part of the fundamental rights. The article also discusses the aftermath of the judgment and the subsequent steps taken by the judiciary to ensure every citizen gets to exercise their fundamental rights. 

Introduction

As Indian citizens, the Constitution of India, 1950 has guaranteed us certain fundamental rights. But what if we say that certain fundamental rights aren’t given to everyone? Sounds unfair! Let’s ask one more question. What if those certain fundamental rights can be exercised only when you’re rich, not accused, etc.? It will not only result in social bias but also violate Article 14 of our Constitution, which provides for equality before the law and equal protection of the law. The case of Hussainara Khatoon v. State of Bihar (1979) is one such case that talks about fundamental rights that are essential for every prisoner, i.e., the right to a speedy trial and the right to free legal aid. This is a landmark case where the Court held that every prisoner has a fundamental right to a speedy trial under Article 21 of the Constitution of India. The case holds significance as it extensively outlines the human rights of prisoners and marks the inception of public interest litigation in India. 

Details of Hussainara Khatoon v. State of Bihar

  • Case name: Hussainara Khatoon v. State of Bihar (1979) 
  • Equivalent Citations: 1979 AIR 1369, 1979 SCR (3) 532 
  • Act involved: Constitution of India 
  • Important provisions: Article 21 and 39A of the Constitution of India
  • Court: Supreme Court of India
  • Bench: Justice P.N. Bhagawati, Justice R.S. Pathak, and Justice A.D. Koshal
  • Petitioners: Hussainara Khatoon & Ors. 
  • Respondents: State of Bihar
  • Judgement Date: 09/03/1979

Facts of Hussainara Khatoon v. State of Bihar

Advocate Pushpa Kapila Hingorani, known as the Mother of Public Interest Litigation, filed a Habeas Corpus writ before the Court, highlighting instances of injustice against prisoners in Patna and Muzaffarpur jails. In her writ, she highlighted the denial of the right of prisoners to a speedy trial and the issue of prolonged detention without the grant of bail, even after the expiration of their detention period.

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A report was made by R.F. Rustum during his tenure in the National Police Commission in Bihar in 1977, which was later printed in the form of an article in the Indian Express newspaper. On his visit to Muzaffarpur and Patna jails, he noticed there are many under trial prisoners (men, women, and children) and accused who are in the jail, even after the expiration of their detention periods. Due to a lack of legal knowledge, they were not aware of the procedure followed by the Court. And every time they’re produced before the Court, their hearing is shifted to another date.

After reading the article, Advocate Pushpa Kapila Hingorani presented a writ before the Supreme Court of India on behalf of Hussainara Khatoon and all the present prisoners at that time (whose names were mentioned in that article). Hussainara Khatoon, who had been in jail for 4-5 years, remained detained despite a direct government order to release prisoners held under the Foreigners Act (1946).  

Issues raised in Hussainara Khatoon v. State of Bihar

Law and principles involved 

There are mainly two provisions that are involved – Article 21 and Article 39A of the Constitution of India

Article 21

Article 21 is also known as the ‘heart of fundamental rights’. The Article guarantees the protection of the right to life and personal liberty, except in certain procedures prescribed by the law. The protection of the right to life and personal liberty cannot be taken away except through some legal procedures. Though the protection of life does not mean protection against any injury, it includes one’s dignity and all those exposure where worth of a human life is concerned. 

Personal liberty provides freedom to move freely, freedom to reside, etc. In fact, the under-trials or citizens who are detained in prison are also guaranteed the right to life. Prisoners can exercise their fundamental rights when they are illegally detained. 

Over the years, Article 21 has evolved through many landmark judgements. In Maneka Gandhi v. Union of India (1978), the Court held that personal liberty has a broader scope under this Article. The right to life and personal liberty is also extended to the right to live with dignity. One’s right to live with dignity shall also be protected under this Article and considered a part of Article 21. The Court also held that procedures established by the law shall be fair, just and reasonable. If any procedure or proceeding does not follow fair, just, and reasonable standards, it shall be terminated. 

Further, in Olga Tellis v. Bombay Municipal Corporation (1985), the Court held that the right to livelihood is an integral part of the right to life, and it shall also be protected under Article 21.

Important Note: For the interest of public order, national security, or morality, certain restrictions can be imposed on the Article, but such restrictions should not be made a norm.

Article 39A 

Article 39A guarantees equal justice and makes provision for free legal aid under the Constitution of India. It ensures justice for all citizens and requires the provision of free legal aid by the government through legislation or directives of the relevant authority. This provision was introduced through the 42nd Amendment in 1977. The State bears the responsibility to ensure that our legal system promotes justice based on equal opportunity and provides free legal aid services by the respective authorities, without discrimination.

Arguments of the parties in Hussainara Khatoon v. State of Bihar

Petitioner

  • The petitioner argued that prisoners in Patna and Muzaffarpur jails were kept in remand on unfair and unreasonable grounds. 
  • They are presented before the magistrate at the hearing, but instead of hearing the parties, the Court passed an order to keep them in judicial custody as per the request of the police. 
  • Many prisoners were confined under police custody despite the fact that their detention period was over. 
  • As per the Article 21, the right to a speedy trial and the right to life are violated.
  • The names of prisoners were also presented before the Court in the form of a printed article, which served as evidence. It clearly stated how the magistrate and our judicial system failed to provide justice to them.  

The Supreme Court of India passed an interim order due to the absence of the respondent and held that the allegations against the respondent in the newspaper and in the writ are presumed to be correct. 

Judgement in Hussainara Khatoon v. State of Bihar

The judgment was pronounced by the Division Bench comprising of Justice P.N. Bhagwati and Justice D.A. Desai. Due to the non-appearance of the respondent despite the notice, the Court considered the allegations in the report (published article) and the writ as correct. Further, the Court emphasised that our Constitution vehemently opposes discrimination in fundamental rights and drew attention to the irresponsible behaviour of our judicial system, which failed to address discrimination within its purview. The Court held that the names mentioned by Advocate Pushpa Kapila Hingorani in her writ should get bail along with personal sureties as it violates their right to life as guaranteed under Article 21 of the Constitution. 

Immediate bail was granted for men, women, and children. The Court further ordered the state government and the high Court to make a list of all the pending cases and submit it before the Court by December 31st,1978, while stating the reasons. Further, the Court ordered the provision of free legal aid to under-trial prisoners who are charged with bailable offences. 

The Court highlighted the irresponsible behaviour of our judicial system that discriminated between rich and poor and failed to ensure that every prisoner could exercise their fundamental rights under Article 21 even after the case of Maneka Gandhi.

While dealing with the provisions of bail, Justice Bhagwati outlined the grounds to be considered, providing guidance on the factors to be taken into account when granting bail. They are as follows;

  • length of his residence in the community; 
  • his employment status, history, and financial credibility; 
  • his family ties and relationships; 
  • his reputation, character, and monetary condition;
  • his prior criminal record; 
  • identify any responsible person who will vouch for his presence in the Court when needed; 
  • nature of the offence he is charged for, probability of conviction, and 
  • low/no risk of wilfully disappearing. 

If the Court is satisfied with the above mentioned grounds, then the accused shall be released on his personal bonds. The Court shall fix the bond on the basis of relevant factors and not according to the mechanical nature of the offence. The Court also stated that if the accused released on bond fails to appear before the Court at the time of hearing, then the bond is forfeited, which will lead to the denial of bail in the future. 

With the above stated points, the Court ordered the release of all those under-trial prisoners (whose names are mentioned in the published article) with bonds.                               

Outcome of the judgement 

Justice was granted not only to the prisoners in Bihar jails. But a total of 40,000 prisoners from across the nation were released as they were kept in illegal detention. The Court held that detention shall be based on reasonable, fair, and just rather than mere adherence to procedures. If the procedures fail to uphold these principles, then it shall get terminated. Article 21 clearly states that the right to life and the right to liberty shall be protected at every level. Also, it helps to create a balance between basic norms and speedy justice in every procedure.

Subsequent directions by the Supreme Court

Though the judgment achieved a milestone in securing the rights of the under-trial prisoners, subsequent orders were passed by the Hon’ble Supreme Court to give effect to the rights that were entitled to these prisoners by way of the judgment. 

In Hussainara Khatoon II (1980 1 SCC 91), Mrs. Hingorani highlighted that women and children, after getting released on bonds, have no idea where to reside. Thus, the Court directed the Social Welfare Department of the Government of Bihar to contact those women and children and look after them until the final disposal of the writ petition. Also, it directed the Jail Authorities to inform the release of women and children on bonds to the Social Welfare Department of the Government of Bihar or the District Officer-in-Charge so that arrangements for them can be made. 

In Hussainara Khatoon III (1980 1 SCC 93),  several orders and directions were passed:-

  • The Court held that if police failed to submit the charge sheet over a period of two years, in which further three months are also given, then the state shall withdraw the case. 
  • The Court passed direct orders in favour of women and children who are kept in jail under ‘protective custody’; though presence is required for giving any evidence but if the detention period is over, they shall be released and shall be taken over to rescue homes for proper care. 
  • The Court held affidavits have to be submitted by the government to show whether under-trial prisoners were presented before the magistrate according to Section 167(2) of the Code of Criminal Procedure, 1973. Further, inquiry needs to be conducted by the High Court on how the detention period was extended from two to ten years even after proving their innocence. 
  • The Court further directed the state government of Bihar to submit a revised chart showing year-wise breakdown of under trial prisoners in two categories: minor and major offences. 
  • The Court further directed the state government to release those prisoners against whom the charge sheet has not been filed as per the Section 468 of the Code of Criminal Procedure, 1973. They will not be liable for any further detention as it will violate their fundamental right under Article 21. 
  • The State Government and the High Court were directed to look into cases where the investigation is being continued for over a period of more than six months without satisfying the magistrate the special reason to be extended. Such under-trial prisoners shall also be released.

In Hussainara Khatoon IV (1980 1 SCC 98), the Court considered the affidavits filed in response to its earlier order passed in Hussainara Khatoon I and III and passed new directions:

  • As per the Hussainara Khatoon II order, the jail superintendent submitted the affidavits before the Court, stating prisoners were presented before the Court ‘as and when required by the Courts’. In contrast, the Court held that the State of Bihar has to file a proper affidavit within two weeks stating whether the under-trial prisoners directed to be released on personal bonds were presented before the Magistrate according to Section 167(2) of the Code of Criminal Procedure, 1973 and also mention the dates of being remanded by the Magistrates. 
  • The Court directed the release of under-trial prisoners who have been illegally detained. The continuation of their detention period will lead to a violation of their fundamental right under Article 21. 
  • The Court directed the State government to provide under-trial prisoners with lawyers as part of free legal aid. The same shall be applicable for non-bailable offences. Further, it advised the Government of India and the State government to introduce a legal service programme. 

Importance of speedy trial

Criminal litigation

Justice P.N. Bhagwati highlighted that detention must be reasonable, fair and just and if a person is deprived of even one of these, then it will violate its fundamental rights under Article 21. He further quotes, “Speedy trial is of the essence of criminal justice, and there can be no doubt that delay in trial by itself constitutes denial of justice”. If there is any procedure which fails to support the criteria of being reasonable, fair and just, then it would fall foul of Article 21. 

Legislative framework in India for speedy trials

Some of the provisions relating to speedy trial under the Code of Criminal Procedure 1973, are as follows:

  • According to Section 157(1) of the Code of Criminal Procedure 1973, the police officer is bound to take immediate action for the offence. This section provides him with a duty to carry out the investigation and submit a report before the magistrate. This provision ensures the timely completion of necessary procedures before the trial.   
  • Section 173 of the Code of Criminal Procedure, 1973 grants two months for the investigation of certain offences provided under Indian Penal Code, 1860. The police in-charge have been provided two months to commence the investigation from the date it was recorded. Therefore, this will ensure a speedy trial, and justice will be granted in a reasonable period of time.
  • As per Section 207 of the Code of Criminal Procedure 1973, the accused has been granted a right to get a copy of:
    • a police report
    • the FIR recorded under Section 154
    • statement recorded under Section 161(3)
    • confessions and statements recorded under Section 164
    • and any document that has been forwarded to the magistrate along with the police report under Section 173(5). 

This section states that the accused must have the thorough knowledge about the case filed against him when appearing before the magistrate. 

  • A summary trial of petty offences has been provided under Chapter XXI of the Code of Criminal Procedure 1973. The Chapter constitutes offences not punishable with death, imprisonment for life, or imprisonment for a term not exceeding two years. The provision emphasises the duty of the magistrate in summary trials and shall mention:
    • the date on which the offence is committed
    • date on which a complaint is filed
    • the date on which a report is made
    • the names of the parties
    • offence committed
    • plea of the accused
    • the finding
    • and the final order
  • According to Section 167(2)(a) of the Code of Criminal Procedure 1973, the accused can be detained in police custody for only 15 days during the initial stage of the investigation. The police officer has to present adequate grounds before the magistrate. To increase the detention period of the accused:
    • 90 days are provided for the investigation in cases like murder, imprisonment for life, and imprisonment for a term not less than 10 years.
    • 60 days are provided for other offences; at the time of the expiration, if the police officer fails to present the evidence, then bail shall be granted to the accused. 

The provision focuses on the number of days provided to the police in charge to collect all the evidence against the accused and investigate the matter. If the collected evidence fails to prove that the accused is guilty or if the same is not sufficient, then the accused shall be released on bail with sureties. Hence, it can be inferred that the provision aims to highlight the right to life and the right to a speedy trial. 

  • Section 309(1) of the Code of Criminal Procedure 1973, allows for the daily conducting of the trial until the examination of all witnesses is completed. This amendment was introduced to address and prevent delays in the trial process.
Criminal litigation

Reasons for delay in trial

In the case of the State of Maharashtra v. Champalal Punjaji Shah (1981), the Court highlighted reasons that can lead to a delay in trial, which includes:

  • Non-availability of the counsel
  • Non-availability of the accused
  • Belated service of the summons and warrants on the accused or witnesses
  • Non-production of under trial prisoners in the Court
  • Judges are on leave and
  • Seeking an adjournment 

Judicial response to Right to Speedy Trial

After declaring the right to a speedy trial, many accused started exploiting their right. In Champalal Poonjaji Shah v. State of Maharashtra (1982), the Court set the criteria to identify denial of speedy trial: whether the defendant himself caused the delay, whether he was disinterested in preparing the evidence, or whether the delay was intentional. If the Court is satisfied with the reasons, the accused retains the right to a speedy trial; otherwise he will not be obliged to exercise the right. In the case Abdul Rehman Antulay vs. R.S. Nayak (1991), the Court held that speedy trial shall be applicable to all the stages: investigation, inquiry, trial, appeal, revision, and retrial. 

In Raj Deo Sharma v. State of Bihar (1998), the Court held that for offences punishable for 7 years, the Court shall close prosecution evidence after two years from recording the plea, and for offences exceeding 7 years, irrespective of the status of custody of accused, the Court shall close prosecution evidence after three years from recording the plea. Thereafter, in P. Ramchandra Rao v. State of Karnataka (2002), the Court stated directions for identifying unreasonable delay due to the defendant’s irresponsible behaviour, justification, and prejudice. The judgement in Raj Deo Sharma was overruled and the Court stated that focus must not be on setting a time limit for criminal proceedings and rejecting termination due to time lapses. 

In Sheela Barse v, Union of India,(1986), the Supreme Court held that if the accused is not tried speedily, then his right to speedy trial under Article 21 of the Constitution of India is violated. If the accused, on purpose, avoids the hearing or any legal procedure, or if the superior Court has passed an interim order, then in that particular case, it cannot be said that the right to speedy trial under Article 21 of the Constitution of India is violated. 

Importance of Article 39A

In Khatri & Ors. v. State of Bihar (1980), the Court held that every Court shall make sure every accused has a lawyer and that the right to get free legal aid is being exercised. This shall initially help in understanding the offence he is being charged with, and he shall present himself (with the help of a lawyer) before the Court. It will help in providing free legal service to every citizen, irrespective of any discrimination, and especially to those who are in need. This provision applies equally to both civil and criminal cases. 

The objective of Article 39A is to provide equal justice and equal opportunity without any discrimination. It creates a mandatory situation where the Government has to provide an authority for free legal aid at the national level and one for each state or union territory, known as the National Legal Services Authority and the State Legal Services Authority. Justice P.N. Bhagwati also highlighted that in addition to providing free legal aid to the poor, it is also important that they are made aware of the right to free legal aid.

After this case, under-trial prisoners were provided with the necessary information regarding their case through the respective authorities. They were made well aware of their rights and liabilities and economically backward people could avail their due benefits. 

Legal Service Authority Act,1987

The Act came into force due to the effect of Article 39A of the Constitution of India. This Act helps the economically weak, the backward, and the disabled receive free legal aid services. It makes sure that every citizen, whether poor, backward, or disabled, shall be entitled to free legal aid and get all the assistance necessary to provide legal information. It shall not discriminate among people on the basis of economic background. Criteria for giving free legal aid services have been provided under Section 12 of the Act.  

National Legal Services Authority

Sections 3 to 5 of the Legal Service Authority Act,1987 provides the constitution of the National Legal Services Authority (NALSA). Its objective is to provide legal knowledge to the whole country. The main responsibilities of NALSA are: 

  • To provide legal aid camps to all societies.
  • To provide legal knowledge irrespective of any discrimination.
  • To use arbitration, mediation, and conciliation methods to solve disputes

Institutions that provide legal aid shall be granted with the funds and all the expenses are managed by the authority.

State Legal Services Authority 

Sections 6 to 11B provide for the constitution of the state legal services authorities. Every state has a duty to provide free legal advice to the poor, backward, or disabled. The main responsibilities of the state legal services authorities are: 

  • Duty to set up legal assistance programs.
  • To conduct Lok Adalat sessions.
  • To assist the clients,
  • To ensure the promotion of all the schemes of NALSA, and
  • To solve disputes.

Effect of strikes on right to speedy trial 

Until a couple of decades ago, frequent strikes by lawyers had become a norm. Accordingly, a writ was filed by way of a PIL before the Hon’ble Supreme Court in the case of Ex-Capt. Harish Uppal v. Union of India (2002). Highlighting the importance of lawyers in our justice delivery system, the Court held that no lawyer has a right to attend or call out a strike or boycott. Even if a protest is required, it shall be communicated through statements, interviews, carrying banners out of the Court premises, wearing any colour armband and peaceful protest march away from the premises of the Court. It was only in the rarest of the rare cases involving the integrity and independence of the Bar/Bench that the strike could be allowed, that too after permission of the Court.

The judgment was premised on the verdict of the Supreme Court in Hussainara Khatoon. The Court stated that  one’s right to exercise its fundamental right is limited if it infringes on another’s fundamental rights. The frequent strikes by lawyers greatly impacted the right to speedy trial of parties guaranteed under Article 21 of the Constitution. Hence, it can be witnessed how the judgment of Hussainara Khatoon acted as an important precedent in guaranteeing the right to speedy trial not only when the police or state was at fault but also when the act of lawyers affected the trials.

Conclusion

In the case discussed above, the Court highlighted the plight of undertrials owing to irresponsible behaviour of our justice delivery system and how the violations of fundamental rights took place under the hood. The judgement made a huge impact on the right to a speedy trial and the right to get free legal aid. Therefore, to prevent such a case, the Court advised the Parliament to make amendments to bail procedures. The Parliament introduced the Legal Service Authority Act, 1987, whose objective is to provide awareness about fundamental rights of the persons. Further, various amendments can also be seen in the Code of Criminal Procedure, 1973 to ensure a speedy trial. Lastly, it can also be witnessed from the above discussion how the judgment paved the way for more rights in different aspects.  

Frequently Asked Questions (FAQ)

What do you mean by the speedy trial?

It is a trial conducted according to the procedures without unreasonable or undue delay.   

What does a fair trial encompass? 

It includes the right to be heard without any discrimination and within a reasonable time (as envisaged under the law). 

At which stage can a speedy trial be demanded?

A speedy trial can be demanded at all stages which include investigation, inquiry, etc. 

Whether legal aid is available through the telephone?

Yes, the helpline number is 1516. 

Who will pay the fee for legal aid?

All the legal expenses would be incurred by the government. 

How can an eligible person approach the legal service authority?

Anyone can approach the committee by sending an application to the legal service authority, orally to the officer, or by filling out an online form as well under the Legal Services Authority Act, 1987. After filling out an application, the concerned authorities will provide the necessary information about the case.

References

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