Assignment 2:

Prastuti Tiwari

Hussainara Khatoon & Ors vs Home Secretary, State of Bihar, 1979 AIR
1369

Abstract

The Supreme Court has time and again emphasized on the importance of justice, equality and
freedom in the legal system of India, addressing all levels of the society. While the poorest of
the population are the most disproportionately affected by injustice and inequality, the rich
have more freedom and access to the legal and administrative system of the government. This
has led to thousands of underprivileged people rotting away in jails in India, without the
knowledge of their rights and a path to achieve them. The case of Hussainara Khatoon has
contributed to taking the first step towards achieving a sense of justice for those poor and
vulnerable people of the society and promote their rights and create accountability towards
the violators of the same.

Introduction

Undertrial prisoners constitute the majority of the prison population all over India since the
beginning of the state prison system and have only seen a constant increase in the twenty-first
century. This case, decided in the year 1979 by the Supreme Court of India upon a writ
petition on the issues that plagued the Indian Justice systems and the prisons, highlighted the
sheer injustice and inculpability of the police and judicial officers in the state of Bihar alone.
This case becomes of prime importance through all these decades of constant struggle to help
these under-trail prisoners realize their fundamental right to freedom of movement and their
life and liberty.
The Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar has repeatedly,
in many orders made to the police authorities and the judicial authorities in charge of such
under-trial prisoners stuck in prison facilities for innumerable years unnecessarily, tried to
achieve this sense of justice and freedom of all citizens wrongfully incarcerated without
being given a free and prompt trial.

Background of the case

It was in January of 1979 where The Indian Express (Delhi) newspaper published two articles
by the then National Police Commission member, about multiple instances of prisoners
languishing in prisons in Patna and Muzaffarpur awaiting trial for several years, some longer
than the maximum punishment they would have received if convicted for the offence they
were accused of.1 A Supreme Court lawyer Nirmal Hingorani, having read said articles,
moved to the Supreme Court a habeas corpus petition under Article 32 of the Constitution of
India. However, this petition was filed without a power of attorney, without a client, and
without confirmation of any of the facts by the petitioner. Kepping in mind that these were
the days were the Indian legal system had a reputation of callousness and corruption in the
aftereffects of the Emergency period, the outcome of this petition was unknown to the
petitioners and the rest of the activists actively awaiting further information.

Upon understanding the gravity of the situation however, the Bench consisting of Justices
V.D. Tulzapurka and R.S. Pathak were persuaded to follow up on the case and issue notice to
the State of Bihar.

Facts of the Case

This case was brought about in the Supreme Court through a writ of habeas corpus filed
invoking its original jurisdiction. The writ petition was concerned with the issues of the very
large number of men, women as well as children who were incarcerated in the prisons of
Bihar as undertrial prisoners still waiting for their trials to commence, or their charge sheets

1
Rani Dhavan Shankardass, ‘Punishment and the Prison, Indian and International Perspectives’, SAGE
PUBLICATIONS, 2000.
to be filed, or the investigation to take place for the crimes they were accused of having
committed. The issues stated in the petition highlighted the deplorable situation of the
prisoners wherein, the periods of incarceration they have endured had run far greater than the
period they would have been given as punishment if they were to be convicted during their
trial. The state, having being given sufficient time and opportunity, failed to appear before the
court to address the issues brought in.

A hearing had been conducted previously, dated 26 th February, wherein the court had directed
the Government of Bihar to release those undertrial prisoners where the investigation alone
had stretched for more than six months without having satisfied the Magistrate as required
under Section 167(5) of Cr.P.C, that such investigation was necessary to be continued beyond
the period of six months too, in the interests of justice. Furthermore, the court had also
directed the state to make a report with the year-wise breakup of all the undertrial prisoners
based on two broad categories, i.e., Major offences and Minor Offences and submit the same
for this hearing.

In this hearing, three counter-affidavits were filed by the respondents providing the report of
the undertrials in Central Jail, Patna and Muzafferpur by the Assistant Inspector General of
prisons.

Issues

There were two major issues presented before the court herein;

a. Whether the pretrial detention of the accused persons for several years without a fair
trial or representation in court amounted to the violation of their Fundamental Right
of protection of their life and personal liberty guaranteed under Article 21 of the
Constitution of India?
b. Whether the rights of the undertrial prisoners under Article 39-A of the constitution
that provides for free legal aid to the poor and weaker sections of the society to ensure
justice, has been violated because of the inherent background of the prisoners and
their lack of awareness and help from the state?

Judgment
The Supreme Court of India therefore, held that;

The right to get free legal services is a fundamental right guaranteed to every accused, who
may not be able to engage their own lawyers due to various reasons. This right given under
Article 39-A cannot be separated from the ‘reasonable, just and fair’ element of procedure to
maintain equal opportunity for all the citizens to secure justice. Whether the accused is poor
or considered an indigent, or where the state is mandated to provide them with a lawyer, this
right under Article 39-A must be guaranteed at all times.

It is the Constitutional mandate of the State to provide the accused persons a speedy trial
following the procedures set by law and this obligation can in no way be avoided pleading
any financial or administrative inability or deficiency. The Supreme Court is the primary
guardian of the fundamental rights of the citizens of the country and therefore, may issue
orders and directions to the State authorities in order to enforce these fundamental rights
guaranteed to the accused persons in jails. These directions may be towards a speedy trial for
the accused, or any positive actions from the State towards its mechanisms, such as
strengthening tits investigative machineries, addition of new courts, appointment of new
judges as well as building of the new court houses, any order that facilitates the delivering of
speedy and fair trials to the accused.

The court further stated that, in order to give effective directions towards discharging their
constitutional obligation, they must be well informed of the prevailing condition and
problems of the system. Keeping this in mind, the court directed the State of Bihar to furnish
particulars regarding the locations of Courts of Magistrates and the Courts of Sessions in
Bihar, and the total number of cases that are pending in all of these courts as of 31 st
December, 1978 within a period of three weeks. These pending cases were to be presented in
a year-wise breakup with an explanation to why cases pending beyond six months could not
be disposed of. The state of Bihar was further asked to furnish to the court, the number of
cases wherein first information reports had been filed and the cases were pending
investigation by police in all sub-divisions along with the reason for such delay.

The court further stated that the reason behind Indian legal system’s continuous failure in
providing justice to the poor was due to their reliance on the antiquated and unsatisfactory
bail system being applied mechanically on all cases. This system needed to be revamped
completely and a positive obligation was put on all magistrates to inform the person accused
of their right to bail and provide them with a lawyer at the state’s expense to ensure their
application for bail.

Criticism Against the Case

It was noted by the Human Rights Committee of the Bihar Legislative Council that despite
the directions and orders given by the Court in 1979 to its subordinate judiciary, a large
number of prisoners were still not produced to see the judge or a court room as the law
mandated. When the Supreme Court in Hussainara Khatoon’s case gave its constitutional
obligation to be fulfilled by the high courts with subsequent orders, it failed to really put into
effect the principles of justice and equality the previous orders preached. This resulted in
multiple other cases with serious human rights violation of the prisoners in the Bihar Prisons
itself, such as Anil Yadav and Rudul Sah cases.

Conclusion

This case has been a landmark judgment in relation to the rights of undertrial prisoners as
well as the history of public interest litigations in India from almost forty-two years ago. This
case resulted in the release of nearly 40,000 undertrial prisoners who had been suffering in
the jails in Bihar. The release of undertrials incarcerated for years and their plights being
highlighted and addressed by the courts is not the only reason this case has been popular in
all manners. Hussainara Khatoon case has been a landmark judgment because it paved the
way for persons with no personal locus standi to pursue cases in the interest of others, making
PILs a permanent fixture in the Indian legal jurisprudence. This provided a way for those
with power to become the champion for those underprivileged members of the society who
may not be able to fight for their rights, promoting judicial activism.

Furthermore, this case for the first time, enabled the highest Court of the country to be
accessible to the most impoverished of population, spreading information and awareness as to
the fundamental rights of the prisoners and all the citizens of the country.

Aftermath
The recommendations given by the court in this case led to the implementation of the Legal
Aid Scheme funded by the government of India in the year 1980. Furthermore, upon release
of the Children from prisons following this case, it was realized that Bihar had no Children’s
Act to establish observation homes and shelters for children who needed such help. The state
legislature passed the Bihar Children’s Act in 1982, during the pendency of the case.

Following this case, the petitioner filed ten more petitions bringing in eight other states
before the Supreme Court of India helping in the release of many undertrial prisoners across
India. An estimated number of 120,000 undertrials all over India were released as a result of
this case and the changes it prompted from the government and the legal system.