Hussainara Khatoon & Ors. v.

Home Secretary, State of Bihar

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Dr. RAM MANOHAR LOHIYA NATIONAL
LAW UNIVERSITY, LUCKNOW.
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BASICS OF CASE LAW

TOPIC: HUSSAINARA KHATOON & ORS vs. HOME
SECRETARY, STATE OF BIHAR (1979) CASE STUDY

SUBMITTED TO- SUBMITTED BY-

MR. ABDULLAH NASIR VISHAL KUMAR ARYA
ASSISTANT PROFFESOR OF LAW, ROLL NO- 163
DR. RML NATIONAL LAW UNIVERSITY B.A.LLB(HONS.)/SEM I
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

ACKNOWLEDGEMENT

I would like to extend my sincere thanks to my teacher and mentor, Mr. Abdullah Nasir for

His able guidance and help,Vice Chancellor, Prof. Gurdip Singh and Dean (Academics),

Prof. C.M. Jariwala for their encouragement and enthusiasm.

I would also like to thank my seniors and my batch-mates for their constant support and valuable
suggestions.
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

CONTENTS

LIST OF CASES REFFERED.4

INTRODUCTION5

OVERVIEW OF THE CASE...6

JUDGEMENT...9

OTHER PROBLEMS DEALT WITH.....12

CONCLUSION ...16

BIBLIOGRAPHY17
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

LIST OF CASES REFFERED

MANEKA GANDHI v. UNION OF INDIA

AIR 1978 SC 597
[1978] 1 SCC 248
M.H. HOSKOT v. STATE OF MAHARASHTRA
AIR 1978 SC 1548
[1978] 3 SCC 544
SUPREME COURT LEGAL AID COMMITTEE v. UNION OF INDIA
[1994] 6 SCC 731
AK GOPALAN v. STATE OF MADRAS
AIR 1950 SC 27

KARTAR SINGH v. STATE OF PUNJAB

(1994) 3 SCC 569
SUNIL BATRA v. DELHI ADMINISTRATION
(1978) 4 SCC 494
AIR 1978 SC 1675
CHARLES SOBHRAJ v. DELHI ADMINISTRATION
AIR 1978 SC 1514

(1978) 4 SCC 104

KHATRI (II) v. STATE OF BIHAR

AIR 1981 SC 928
(1981) 1 SCC 635
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

INTRODUCTION

Criminal rights jurisprudence is a fairly new concept in India. As such it has only developed in
the last 25 years or so. In the last 25 years there have been a plethora of cases on the topic. The
Supreme Court has read a number of very important rights into Article 21, making it truly the
charter of un-enumerated rights. The rights that the Supreme Court has read into Article 21 are
representative of a sea change in the attitude to prisoners around the world. The old conception
of prisoners was that they were to be placed beyond the limits of society. They were treated as
outcasts. The position now is that prisoners should be rehabilitated, and readmitted into society.

The first major step taken was in the Hussainara Khatoon cases. The Court made various orders
which went a long way toward imbibing a human rights approach in the administration of
criminal justice. The statistics at the time showed that at any given point of time the percentage
of under trial prisoners always exceeded that of the convicts. These under trial prisoners
consisted mainly of two categories: those denied bail, and those who had not paid it for one
reason or another. The Law Commission of India studied this problem in its 78th report.
In HussainaraKhatoonscase, the Court found that many under trial prisoners were in jail either
because they were not aware of their right to obtain release on bail, and so no application for bail
had been made on their behalf, or because they were too poor to hire a lawyer.
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

OVERVIEW OF THE CASE

CASE:
HUSSAINARA KHATOON&ORS. v. HOME SECRETARY, STATE OF BIHAR

CITATION:
1979 AIR 1369
1979 SCR (3) 532
1980 SCC (1) 98

DATE OF DECISION: 09/03/1979

NAME OF JUDGES: JUSTICE BHAGWATI, P.N.

JUSTICE DESAI, D.A.

SUBJECT MATTER:
Courts must abandon the antiquated into account the following factors concerning the
accused concept under which pretrial release is ordered only against bail with
sureties.
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.
Reasonable time limit should be fixed for submission of final report by the police.
Free legal services to the poor and the needy is an essential element of any
reasonable, fair and just procedure.
The law does not permit any Government to deprive its citizens of constitutional
rights on a plea of poverty.
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

PARTIES INVOLVED IN THE CASE:

PETITIONER: HUSSAINARA KHATOON & ORS.

RESPONDENT: HOME SECRETARY, STATE OF BIHAR

LAWYERS:

FOR PETITIONER: K. HINGORANI, ADV

FOR RESPONDENT: S.M. JHA AND P.P. SINGH, ADVS

FACTS OF THE CASE:

The case dealt, inter alia, with the rights of the under trial prisoners on habeas corpus petitions
which disclosed a shocking state of affairs in regard to administration of justice in the State of
Bihar. An alarmingly large number of men and women, children including, were behind prison
bars for years awaiting trial in courts of law. The offences with which some of them were
charged were trivial, which even if proved, would not warrant punishment for more that a few
months, perhaps a year or two, and yet they remained in jail, deprived of their freedom, for
periods ranging from three to ten years without even as much as their trial having commenced.

The petition discloses shocking state of affairs in the jails where people charged for minor
offences were languishing in jail for 5-10 years without initiation of trial These prisoners keep
on languishing in jail as they were not in position to furnish bail. The Courts by ignoring the
differential capacity of the rich and the poor to furnish bail and treating them equally produce
inequality between the rich and the poor; the rich who is charged with the same offence in
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

thesame circumstances is able to secure his release while the poor is unable to do so on account
of his poverty Another infirmity in the judicial system is the gross denial of justice to the under
trial prisoners - Speedy trial is of the essence of criminal justice and delay in trial by itself
constitutes denial of justice Court directed State Government to look into the matter and set
more Courts to speed up the trial, improve the conditions of service if they wanted to improve
the system of administration of justice.
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

JUDGEMENT

In the present case, the petition for a writ of habeas corpus discloses a shocking state of affairs
in regard to administration of justice in the State of Bihar. An alarmingly large number of men
and women, children including, are behind prison bars for years awaiting trial in courts of law.
The offences with which some of them are charged are trivial, which, even if proved, would not
warrant punishment for more than a few months, perhaps for a year or two, and yet these
unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods
ranging from three to ten years without even as much as their trial havingcommenced. It is a
crying shame on the judicial system which permits incarceration of men and women for such
long periods of time without trial. We are shouting from house tops about the protection and
enforcement of human rights. We are talking passionately and eloquently about the maintenance
and preservation of basic freedoms. But, are we not denying human rights to these nameless
persons who are languishing in jails for years for offences which perhaps they might ultimately
be found not to have committed? Are we not withholding basic freedoms from these neglected
and helpless human beings who have been condemned to a life of imprisonment and degradation
for years on end? Are expeditious trial and freedom from detention not part of human rights and
basic freedoms? Many of these unfortunate men and women must not even be remembering
when they entered the jail and for what offence? They have over the years ceased to be human,
beings: they are mere ticket-numbers. It is high time that the public conscience is awakened and
the Government as well as the judiciary begin to realise that in the dark cells of our prisons there
are large number of men and women who are waiting patiently, impatiently perhaps, but in vain,
for justice--a commodity which is tragically beyond their reach and grasp. Law has become for
them an instrument of injustice and they are helpless and despairing victims of the callousness of
the legal and judicial system. The time has come when the legal and judicial system has to be
revamped and restructured so that such injustices do not occur and disfigure the fair and
otherwise luminous face of our nascent democracy.

While there can be no doubt that under-trial prisoners should not languish in jails on account of
refusal to enlarge them on bail for want of their capacity to furnish bail with monetary
obligations, these are matters which have to be dealt with on case to case basis keeping in mind
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

the guidelines laid down by this Court in the orders passed in this writ petition and in subsequent
cases from time to time. Sympathy for the under-trials who are in jail for long terms on account
of the pendency of cases has to be balanced having regard to the impact of crime, more
particularly, serious crime, on society and these considerations have to be weighed having regard
to the fact-situations in pending cases. While there can be no doubt that trials of those accused of
crimes should be disposed of as early as possible, general orders in regard to judge-strength of
subordinate judiciary in each State must be attended to, and its functioning overseen, by the High
Court of the concerned State. We share the sympathetic concern of the learned counsel for the
petitioners that under-trials should not languish in jails for long spells merely on account of their
inability to meet monetary obligations. We are, however, of the view that such monitoring can be
done more effectively by the High Courts since it would be easy for that Court to collect and
collate the statistical information in that behalf, apply the broad guidelines already issued and
deal with the situation as it emerges from the status reports presented to it. The role of the High
Court is to ensure that the guidelines issued by this Court are implemented in letter and spirit.
We think it would suffice if we request the Chief Justices of the High Courts to undertake a
review of such cases in their States and give appropriate directions where needed to ensure
proper and effective implementation of the guidelines. Instead of repeating the general directions
already issued, it would be sufficient to remind the High Courts to ensure expeditious disposal of
cases. Withdrawal of cases from time to time may not always be an appropriate and acceptable
remedy, but what is required is to evolve a mechanism which would enable early disposal of
cases. The High Court being on the spot would be able to diagnose the ailment rather than
merely deal with the symptoms. We are, therefore, of the view that these petitions have served
their purposes and should stand disposed of leaving the further implementation to the High
Courts.
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

OTHER PROBLEMS DEALT WITH

Prisoners Rights in India

Right to Fair Procedure
Personal Liberty
The Sunil Batra Cases
Right to Speedy Trial
Right to Legal Aid

PRISONERS RIGHTS IN INDIA

In the Indian Constitution the human rights principles are given a prominent place. Later
developments in prisoners rights truly reflect the constitutional goals and ideals. The Supreme
Court has dealt with prisoners rights in an elaborate manner in Sunil Batra v. Delhi
Administration upon a writ petition under Article 32 of the Constitution. Here it was laid down
that a court sentence does not deprive the prisoner of his fundamental rights. The Constitution
Bench in the Sunil Batra Cases laid down important principles regarding the status of the
prisoners. The Constitution Bench shrugged off the hands off prison doctrine, upheld the
fundamental rights of the prisoners, though circumscribed severely by the reality of lawful
custody. The fundamental rights did not forsake the prisoners, and that the penological purpose
of the sentence was reformatory even though deterrent too. Further it was explained that the
Court has a continuing responsibility to ensure that the constitutional purpose of deprivation is
not defeated by the prison administration. At present the Court need not adopt a hands off
attitude in regard to the problem of prison administration in India.

The Fundamental Rights guaranteed under the Constitution are not absolute and many
restrictions have been imposed on their enjoyment. Right to freedom of person is one of the most
important rights among the fundamental rights. When a person is convicted or put in prison his
status is different from an ordinary person. A prisoner cannot claim all the fundamental rights
available to an ordinary person. The Supreme Court of India and various High Courts in India
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

have discussed the scope in various decisions. Before discussing these decisions it is necessary to
see various constitutional provisions with regard to prisoners rights.

RIGHT TO FAIR PROCEDURE

When we trace the origin of prisoners rights of India, the embryo can be found in the celebrated
case of A.K. Gopalan v. State of Madras.One of the main contentions raised by the petitioner
was that the phrase procedure established by law as contained in Article 21 of the
Constitution includes a fair and reasonable procedure and not a mere semblance of procedure
by the State for the deprivation of life or personal liberty of individuals.

The majority opinion in Gopalan was that when a person is totally deprived of his personal
liberty under a procedure established by law, the fundamental rights including the right to
freedom of movement are not available. It was held that There cannot be anything as absolute or
uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder.In
some cases, restrictions have to be placed upon free exercise of individual rights to safeguard the
interest of the society: on the other hand, social control which exists for public good has got to be
restrained, lest it be misused to the detriment of individual rights and liberties.

PERSONAL LIBERTY

The Supreme Court had to consider the relationship of article 19 and 21 with the prisoners rights
in Kharak Singh v. State of U.P.The Supreme Court contrasted Article 21 of the Constitution
with the Fourth and Fourteenth Amendments to the United States Constitution. The word
liberty in Article 21 is qualified by the word personal. The word personal liberty in Article 21
is used as a compendious term to include within itself all varieties of rights which go to make the
personal liberties of men other than those within several classes of Article 19 (1).

Maneka Gandhi v. Union of India was the turning point in the human rights jurisprudence,
especially in personal liberty. Maneka Gandhi accepted the dissenting opinion of Subba Rao
in Kharak Singh. The expression personal liberty in Article 21 is of the widest amplitude and
covers every one of the rights which constitutes personal liberty of man. The personal liberties
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

have been raised to the status of distinct liberties and they have been raised to the status of
distinct fundamental rights and given additional protection under Article 19.

THE SUNIL BATRA CASES

Awareness about prisoners rights was created among the people by the above mentioned
decisions. But no substantial reform had been made by the Central Government or the State
Governments except the appointment of some Prison Reform Committees.In spite of this, the
Supreme Court has taken initiative in order to humanize jail administration to some extent. The
two Sunil Batra cases are significant decisions to this direction.

The petition in Sunil Batra (I) was filed by two inmates confined in the Tihar Jail challenging
the legal validity of Section 30 and 56 of the Prisons Act. Sunil Batra, a convict under sentence
of death challenged his solitary confinement. Charles Sobhraj, a French national and then an
under trial prisoner challenged the action of the Superintendent of Jail putting him in bar fetters
for an unusually long period commencing from the date of incarceration. Such a gruesome and
hair raising picture was painted out that at some stage of the hearing, Chief Justice M. H, Beg, V.
R. Krishna Iyer, J. and P. S. Kailasam, J. who were the judges hearing the case visited the
Central Jail, Tihar.

The petition was dismissed by the Court. But through various interim orders the Court has
guaranteed a fair treatment to the petitioner inside the prison.

In Sunil Batra (II) arising out of a letter written by Sunil Batra to one of the judges of the
Supreme Court alleging that a warden in Tihar Jail had caused bleeding injury to a convict by
name of Prem Chand by forcing a stick into his anus, the Court liberalized the procedural
rigidities of the writ of habeas corpus and employed the writ, following the American cases for
the oversight of state penal machinery and for the condemnation of the brutalities and tortures
inflicted on the prisoners. On the basis of this, the Supreme Court treated Batras letter as a
petition for habeas corpus and employed the writ to the Lieutenant Governor of Delhi and the
Superintendent of Central Jail ordering that Prem Chand should not be subjected to torture and
wound on his person should receive proper medical attention.
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

In this case Justice Krishna Iyer openly acknowledged the activist policy making role of the
judicial process, particularly in view of the legislative laxity, in the humanization of the prison
system.

RIGHT TO SPEEDY TRIAL

This right first came up in a series of cases involving undertrials, who were in jail for a period
longer than the maximum sentence that could be imposed on conviction. In Hussainara Khatoon
v. Home Secretary, Bihar it was held that a procedure which keeps such large numbers of people
behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to
be in conformity with the requirements of Article 21. Bhagwati, J., observed that although the
right to speedy trial is not specifically mentioned as a fundamental right, it is implicit in the
broad sweep and content of Article 21. In Hussainara,the Court re-emphasized the expeditious
review for withdrawal of cases against under trials for more than two years.The Court reiterated
that the investigation must be completed within a time-bound program in respect of under trials
and gave specific orders to be followed for quick disposal of cases of under trials. The Court
considered the affidavits filed in response to its earlier orders and passed further directions.
Dissatisfied with the compliance to its earlier direction, the Court ordered release of under trials
held for periods more than the maximum term imposable upon them on conviction. It was held
that continuance of such detention is clearly illegal and in violation of the fundamental right
under Article 21. The Court went one step further and after making a reference to the Hoskot
case, recognized the right to free legal services for the poor and the needy as an essential
ingredient of reasonable, fair and just procedure implicit in the guarantee of Article 21, and
directed the State to provide a lawyer at its own cost for making a bail application to an under
trial.

RIGHT TO LEGAL AID

Legal aid, as a pipeline to carry to the court the breaches of prisoners basic rights, is a radical
humanist concomitant of the rule of prison law. Art. 39A is an interpretative tool for Article 21
of the Constitution. Partial statutory implementation of the mandate is found in Section 304 of
the Cr.P.C., which provides for legal aid to the accused in other situations. Courts cannot be inert
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

in the face of Articles 21 and 39A of the Constitution. If a prisoner sentenced to imprisonment is
virtually unable to exercise his constitutional and statutory right of appeal, for want of legal
assistance, it is within the inherent powers of the Supreme Court under Article 142 read with
Articles 21 and 39A of the Constitution power to assign counsel for such an imprisoned
individual. This is a necessary incident of the right of appeal conferred by the Cr.P.C and
allowed by Article 136 of the Constitution. The inference is inevitable that this is the duty of the
State, and not an act of government charity. Furthermore, in order to provide an adequate
opportunity to an accused convicted of a crime to go in appeal against the sentence the following
facilities may be given by the concerned authorities.

The first time this Right was discussed in depth was in the case of Khatri (II) v. State of Bihar
The Court held that the State is constitutionally bound to provide free legal aid to an accused, not
only at the stage of trial, but also when they are first produced before the magistrate or remanded
from time to time. The right to free legal services is an essential of reasonable, free and just
procedure for a person accused of an offence. The State cannot avoid this obligation by pleading
financial or administrative inability or that none of the prisoners asked for legal aid. The
Magistrate or Sessions judge is under an obligation to inform the accused of his right to legal aid
at the cost of the State. However, there is an exception to this rule, in the case of offences such as
economic offences or offences against law prohibiting prostitution or child abuse, where social
justice may require that free legal services need not be provided by the State.
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

CONCLUSION

The Indian Prison system is highly antiquated. It does not incorporate the new view of prisoners.
In post World War II societies, prisons are looked at not as places where a criminal is sent to be
excluded form society, but as reformatories, where criminals are sent to be reformed and
readmitted to society. However, it must be noted that the National Human Rights Commission
has taken steps toward updating the prison system, in submitting a draft outline for the Prisons
Bill, 1996.

However, as we can see from the example of the Tihar jail, many reforms can be carried out if
the warden would be willing to do so. The Supreme Court should take steps and issue directives
to the Prison wardens, giving them objective guidelines upon which they may improve the prison
system.

Prisoners rights in India are violated on a daily basis. The Court should not confine itself to the
rights of prisoners and under trials, but should also go a step further, and protect the rights of the
people who experience police brutality on a daily basis.
 Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar

BIBLIOGRAPHY

BOOKS:

A.I.R. All India Reporter

S.C.C. Supreme Court Cases

WEBSITES:

www.indiankanoon.org
www.judis.nic.in
www.legalsutra.com
www.westlawindia.com