IN THE SUPREME COURT OF INDIA
1979 AIR 1369, 1979 SCR (3) 532
Hussainara Khatoon &Ors.
Home Secretary, State of Bihar
Date of Judgement
9 March, 1979
N. Bhagwati, J.; A. Desai, J.
The present case is a landmark judgment on the speedy trial of cases that came to be recognized as a fundamental right of every accused person. It is a facet of the rightful administration of justice. The Constitutional obligation upon State to undertake the protection of rights of individuals under Article 21 is inclusive of the duty to ensure there is a speedy trial of cases. It also ensures the right to access free legal services to the poor as an essential part of Article 21 of the Constitution.
Facts of the case
The writ petition has come before the Court for the hearing of the release of under-trial prisoners in the state of Bihar. The state of Bihar was directed to file a revised chart showing a year-wise break-up of the under-trial prisoners after dividing into two broad categories viz. minor offenses and major offenses that were not carried out.
Statue and provisions discussed
1. Article 21, The Constitution of India, 1950.
2. Article 39A, The Constitution of India, 1950.
It has been averred in the counter-affidavit to the direction of the Court that many under-trial prisoners, petitioners herein, confined in the Patna Central Jail, the Muzaffarpur Central Jail and the Ranchi Central Jail, prior to their release have been regularly produced before the Magistrates numerous times and have been remanded again and again to judicial custody by them. However, the Court found this averment unsatisfactory as it does not comply with the direction of producing the dates on which these under-trial prisoners were remanded.
Moreover, to justify the pendency of cases, it has been contended that in 10% of the cases, the investigation is held up due to delay in receipt of opinions from experts. This reason was unacceptable to the Court as the State can always employ more experts and establish more laboratories.
The Court directed 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 illegal and in violation of their fundamental right under Article 21 of the Constitution because they have been in jail for a duration exceeding the maximum term that they should have been convicted for.
The Court also directed that on the next remand dates, when the under-trial prisoners, charged with bailable offenses, are produced before the Magistrates, the State Government should appoint a lawyer at its own cost for making an application for bail and opposing remand provided that no objection is raised to such a lawyer on their behalf and with an aim that speedy trial is executed. The State Government and High Court were required to furnish particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar along with the total cases pending in each court as of 31st December, 1978. They are also required to explain as to why the disposal of those cases as having been pending for more than six months not been possible.
The Court found that the under-trial prisoners whose list was filed before the Court have been in jail for periods longer than the maximum term for which they could have been sentenced if convicted. The Court recognized the callousness of the legal and judicial system and unjustified deprivation of personal liberty. The Court also realized the plight of under-trial prisoners who are for most times, unaware of their right to obtain release on bail or due to poverty, are unable to engage a lawyer. For this, the need for an adequate and comprehensive legal service program is called for.
It is well established that Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law which ought to be ‘reasonable, fair and just’. A procedure that makes the poor deprived of access to legal services and has to go to trial without proper representation cannot be regarded as ‘reasonable fair and just’. Providing free legal services to poor and needy is a component of any ‘reasonable, fair and just’ procedure.  as a layman cannot avail of the expertise elsewhere and lacks the skill and knowledge himself.
Article 39A is a fundamental constitutional directive that emphasizes that free legal service is an inalienable element of ‘reasonable, fair and just’ procedure for without it a person facing economic or other disabilities would not be able to secure justice. This right is to be considered implicit in the guarantee of Article 21.
Moreover, the emphasis is laid towards the under-trial prisoners who have been in jail for more than half the maximum term of imprisonment for which they could be sentenced if convicted. There is no reason why these under-trial prisoners should be allowed to continue to languish in jail, merely because of the fault of the State to not try them within a reasonable period of time. The possibility of some of them being acquitted of the offenses charged against them yet having spent several years in jail for offenses which they are ultimately found not to have committed will be detrimental to their freedom of personal liberty. Hence, the speedy trial of persons accused of offenses becomes essential to ensure that the accused persons do not have to remain in jail longer than is absolutely necessary.
The Court recommends to the State and the Central Government, a comprehensive legal service program which is mandated not only by Article 14 which guarantees equal justice and Article 21 which confers the right to life and liberty, but also embodied in the constitutional directive embodied in Article 39A.
The State cannot deny the constitutional right to a speedy trial to the accused by pleading financial or administrative inability. The Court is hence required to adopt an activist approach issue directions to State to take positive action to secure enforcement of the fundamental right to a speedy trial.
- The right to get free legal aid and speedy trial is guaranteed under Article 21 of the Constitution and amounts to an essential element of ‘reasonable, fair and just’ procedure.
Edited by Parul Soni
Approved & Published – Sakshi Raje
 Rhem v. Malcolm, 377 F. Supp. 995 (S.D.N.Y. 1974).