Hussainara Khatoon & Ors. vs Home Secretary  State Of Bihar

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We say “Injustice anywhere is a threat to justice everywhere”- Martin Luther King. What happens when you are punished more than what you deserve? Isn’t that just unfair? There are various instances where a poor person or someone without so-called contacts has been detained for a trivial matter. The concept of speedy trials goes a long way but was one of the topics to become the founding layers of Public Interest Litigation (PIL) in India. The speedy trials are a fundamental right similar to any other right provided by our Constitution. Legally done trials and transparency of law and it’s procedures are the critical aspects of a fair judiciary. Therefore the bench is believed to acquire legitimacy by responding to, in fact by stirring, the deep and durable demand for justice in human society. The process of democratisation, various rights movements, enhancement of public awareness, internalisation of the concept of welfare and incorporation of the socialist ideal and the dictates of directive principles of State Policy have sharply shifted the focus from legal and traditional substantive justice. Justice PN Bhagwati described PIL as “the strategic arm of the legal aid movement which is intended to bring justice within reach of the poor masses, who constitute the low visibility area of humanity”. Any person with sufficient interest in the issue has the locus standi to challenge any public injury or enforce any general duty performance. Any person having a sufficient interest is entitled to ask to enforce the rights arising under the social welfare scheme or the welfare programs. This case is mainly considered one of the first cases to be filed and appealed to the Apex court.

The Case Facts

The writ petition which was placed before the court to hear the release of undertrial inmates in Bihar. The State of Bihar was then ordered to file a revised chart showing the year-round break-up of undertrial inmates, separated into two broad categories. Minor offences and major offences that have not been committed. The offences that some of them were convicted of minor, which, while proved, would not be punishable for more than a few months, maybe a year or two, and still these poor forgotten human specimens were in prison, stripped of their liberty, for stretches ranging from three to ten years without their trial has started. The case was taken before the SC before a bench led by Justice P.N.Bhagwati. This petition was lodged under the inmate’s name, Hussainara Khatoon, the petition came to be known as Hussainara Khatoon vs the State of Bihar.

Why did this happen?

Often the Magistrates often refuse to free under-trial prisoners brought before them on their probation, but rely on cash bail with promises. Owing to their hardship, under-trial inmates are unable to provide and thus essentially cut off the chance of parole from pre-trial custody. Today, a procedure that does not offer defence representation to a convicted party who is too poor to pay a lawyer and who will have to go through a trial without legal aid cannot possibly be considered as ‘reasonable, fair and right. It is an integral ingredient of a reasonable, equitable and equitable procedure for an inmate seeking his parole via a judicial proceeding to have legal resources available to him.

What did the Supreme Court say?

The court suggested to the Government of India and the Governments of the State that it is high time for a robust legal support programme to be developed in the region. This is the mandate to fair treatment inherent in Article 14 and the right to life and liberty conferred by Article 21 and the duty of the fundamental directive laid down in Article 39A.

Then several undertrial inmates are charged with crimes that are bailable but are already in custody, possibly because no appeal for parole has been made on their behalf or because they are too vulnerable to be able to pay bail. It is not surprising to see that undertrial inmates who are made before the Magistrates are unaware of their right to be released on parole and, because of their hardship, are unable to afford a counsel who can advise them of their ability to apply for bail and help them to be released on bail by making a suitable application to the Magistrate on that matter.The State cannot escape its contractual duty to bring the convicted to justice immediately by pleading financial or logistical failure. The State has a fundamental obligation to guarantee a speedy trial, and the State must do whatever is appropriate for that purpose. It is also the constitutional responsibility of this court, as protector of the fundamental rights of the people, as sentinel of Qui Vive, to impose the fundamental right of the accused to a speedy trial by providing the requisite instructions to the State which may include the taking of positive action, such as enhancing and strengthening the investigative machinery, setting up of the new courts or building up of new courthouses, providing more staff and equipment to the courts, the appointment of additional judges and other measures calculated to ensure speedy trial.

The bench of judges founded that the lists of undertrial prisoners submitted to the Hon’ble Court on behalf of the Bihar State showed that undertrial prisoners whose names are set out in the chart filed by Mrs Hingorani on the day of judgement had been in prison for period longer than the actual maximum period for which they could have been sentenced if they had been convicted. This reveals a shocking state of affairs and betrays a complete lack of understanding for human values. It exposes the cruelty of our judicial and legal system, which may remain unmoved by such enormous misery and suffering as a result of totally unjustified deprivation of personal liberty. Indeed, it is difficult for the court or ordinary citizens to understand how the State’s Government could remain oblivious to the continued incarceration of these prisoners under trial for years without even starting a trial. The judiciary in the State of Bihar cannot escape its share of the blame, as it could have been aware that thousands of prisoners under trial are languishing in prison waiting for a trail that never seems to have begun. Then some undertrial inmates were charged with the crimes that were bailable but were already in custody, possibly because no offer for parole had been placed on their behalf or because they were poor to be paying the bail. It is not surprising to see that undertrial inmates who were taken before the magistrates were unaware of their ability to be released on parole and, because of their hardship, we’re unable to afford a lawyer who would advise them of their right to apply for bail and help them to serve on bail by making a formal submission to the Magistrate on that behalf.

Also Read  Kotla Venkataswamy versus Rammurthy, AIR 1934 Mad 579

The judge ruled the State of Bihar to provide the court, within three weeks, with details of the location of the courts of magistrates and of the courts of the session in the State of Bihar, together the total number of cases pending in each of those courts, as at 31 December 1978, giving an annual break-up of such cases and also explaining why it was not possible to dispose of such cases.

PILs have always played an important role in India’s law making. They have also been responsible for some landmark judgements given by our judiciary such as the banning of the triple talaq, opened up the doors of Sabrimala and the Haji Ali shrines to women, and many others.

In the case of Maneka Gandhi v. Union of India court held that the courts have successfully interpreted various cases in order to define socio-economic and cultural protections under Article 21, such as the right to clean air, the right to clean water, the right to protection from noise pollution, the speedy trial, legal assistance, right to life, the right to medical treatment, the right to clean the environment, etc. as part of the right to life and the personal liberty. Moreover, between 1975 and 1977, after Prime Minister Indira Gandhi revoked the Constitution and enforced Emergency Rule, the Court further bowed, caving directly to the government’s demand that imprisoned political rivals and others not be taken to trial soon.

Court pointed out in M. H. Hoskot v. the State of Maharashtra that the judicial justice, with procedural and substantive intricacies, legal submissions and critical examination of evidence all leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Free legal services provided to the poor and the needy is constituted to be an essential element of any ‘reasonable, fair and just’ procedure. 

The court also mentioned Article 39A, which is the fundamental constitutional directive which reads as follows:

Article 39A. which talks about equal justice and free legal aid:-The State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (emphasis added)”

Case laws that brush upon the concept of speedy trials

There were other emotionally wrenching cases which were seen involving the abuse of the juvenile undertrials that the court sought to remedy during the 1980s.

[1] During this period, the court dealt with the ghastly blinding of undertrial-prisoners in a northern Indian jail,[2] as well as whether undertrials could have the time already spent waiting in prison count towards a sentence once rendered.[3]

In “Abdul Rehman Antulay Etc. Etc. vs R.S. Nayak And Another Etc. Etc”, it was observed that “Right to a speedy trial is not enumerated as one of the fundamental rights in the Constitution of India, unlike the Sixth Amendment to the US Constitution which expressly recognises this right The Sixth Amendment declares inter alia that ‘in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial’. This is in addition to the Fifth Amendment which inter alia declares that “no person shall….be deprived of life”, which corresponds broadly to Article 21 (and Clause 1 of Article 31, since deleted).

This omission and the holding in AK Gopalan v. the State of Madras probably explains why this right was not claimed or recognised as a fundamental right flowing from Article 21 so long as Gopalan held the field. Once Gopalan was over-ruled in R.C. Cooper (1970 SC 564) and its principle extended to Article 21 in Maneka Gandhi (1978 SC 597) Article 21 got unshackled from the repressive meaning placed upon it in A. K. Gopalan. It came to acquire a concept of force and vitality which was unimagined. The bursting of creative decisions of this court quickly on the heels of Maneka Gandhi gave the Article a new meaning and broadened its content and connotation. It is sufficient to say that the judgments of this Court in the case of Hussainara Khatoon decided in 1979, stating that this right to a speedy trial is implicit in Article 21 and therefore constitutes a fundamental right of each and every person accused of a crime, are one of them.


The case A. K. Gopalan, the court held that the law relating to preventive detention is to be found in Article 22 of the Constitution and that the Article 22 is a self-contained code in that behalf. It was also noted that the statute referred to in Article 21 of the Constitution does not need to respond to the test of reasonableness set out in Article 19, as both Sections (21 and 19) represent two separate streams.

In case of State of Bihar v. Uma Shankar Ketriwal and Ors. The Hon’ble Supreme Court noted that we cannot lose sight of the fact that the trial has not made much progress, even though no less than 20 years have elapsed. Such a lengthening in itself means considerable harassment of the accused, not only monetarily, but also by constant attention to the case and repeated appearances before the court, apart from anxiety. It may be said that the respondents themselves were largely responsible for the slow pace of the case, inasmuch as many of the court orders made by the Magistrate were challenged in higher courts, but then there must be a limit to the period for which criminal litigation is allowed to take place at the stage of the trial. In this respect, we do not consider the present case to be appropriate for our interference, despite the fact that we feel that the allegations disclose the commission of an offence which we consider to be quite serious.

In Khadra Paharia v. the State of Bihar, the Hon’ble Supreme Court re-affirmed the principle of the case Hussainara Khatoon and declared that:….any accused who is denied of this right of speedy trial was entitled to approach this court to enforce such request, and this court in the discharge of its constitutional obligation has the power to give necessary directions to the State Governments and other appropriate authorities for securing this right to the accused…The court granted the Government of Bihar and High Court the required recommendations, including a direction to create additional courts for speedy disposal of cases pending since long.

The Hon’ble Supreme Court considered the applicability of this right again in State of Maharashtra v. Champalal Punjaji Shah . in this ruling, it was observed: In deciding the question whether there has been a denial of the right to a speedy trial the court is entitled to take into consideration whether the defendant himself was responsible for a part of the delay and whether he was prejudiced in the preparation of his defence by reason of the delay. The court is also entitled to consider whether the delay was unintentional, caused by over-crowding of the court’s docket or under-staffing of the Prosecutors. In the course of his lordship judgment, Chinnappa Reddy, J., noted that “delay is a known defence tactic” and also that where the prosecution has a weak case, it may resort to the same tactic to keep the prosecution pending as long as possible. His lordship observed: Denial of the speedy trial may occur with or without proof of something more lead to an unavoidable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial.”

In Machander v. the State of Hyderabad The Hon’ble Supreme Court noted that while it is the duty of the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and that the accused person is not harassed indefinitely. The scales, the court noted, must be maintained even between the prosecution and the accused. In the circumstances of that case, the court refused to order the trial based on the time already spent and other relevant circumstances of that case.


Therefore the case of Hussainara Khatoon vs the State of Bihar we established certain vital features of PIL

  1. A petition need not be filled by the person whose own legal rights are at issue but can be brought by any public-spirited citizen.
  2. A petition need not be based on personal knowledge but can be supported by such material as newspaper articles,
  3. Both critical legal principles and substantial relief can be created at a preliminary stage of litigation
  4. The scope of litigation can expand rapidly beyond the initial petition as the case’s very process exposes greater and greater injustice.

In reassessment, it is easy to look at the dominant structural features of the PIL displayed in the Hussainara Khatoon case as it unfolded. Still, it is essential to realise that at the time this very structure was created in response to an evident and urgent injustice which makes this very case a powerful exemplar of public interest litigation.  

  [1] Munna v. Upper Pradesh, (1982) 3 SCR 47 (accepting a writ petition and ordering a further investigation was made of the extensive allegations of sexual abuse of the juvenile undertrials; see also Supreme Court Legal Aid Comm. v. India, (1989) 2 SCR 60 (ordering various states to collect data on the numbers of undertrial children in prison); Suri v. Delhi Admin., (1988) 2 SCR 234 (dealing with the inhumane conditions to which juveniles in Delhi’s Tihar Jail were exposed).

[2] Yadav v. Bihar, (1982) 3 SCR 533.

[3] The court, for instance, initially said no. See Kartar Singh v. Haryana, (1983) 1 SCR 445, where the court argued that because the defendant’s sentence was for life, counting the undertrial waiting period towards such a ruling would make no sense.