Writ Petition No. 57 of 1979. Case: Hussainara Khatoon and Ors. Vs Home Secretary, State of Bihar, Patna. Supreme Court (India)

Case NumberWrit Petition No. 57 of 1979
CounselFor Appellant: K. Hingorani, Adv. and For Respondents: S.M. Jha and P.P. Singh, Advs.
JudgesA.D. Koshal, P. N. Bhagwati and R.S. Pathak, JJ.
IssueConstitution of India - Article 21
CitationAIR 1979 SC 1360, 1979 CriLJ 1036, (1980) 1 SCC 81, (1980) 1 SCC 91, [1979] 3 SCR 169, 1979 CriAppR 197 (SC), 1979 PatLJR 419
Judgement DateFebruary 12, 1979
CourtSupreme Court (India)


P.N. Bhagwati J. (for himself and on behalf of Koshal J.):

  1. This 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 having commenced. 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.

  2. Though we issued notice to the State of Bihar two weeks ago, it is unfortunate that on the 5th February, 1979 no one has appeared on behalf of the State and we must, therefore, at this stage proceed on the basis that the allegations contained in the issues of the Indian Express dated 8th and 9th January, 1979 which are incorporated in the writ petition are correct. The information contained in these newspaper cuttings is most distressing and it is sufficient to stir the conscience and disturb the equanimity of any socially motivated lawyer or Judge. Some of the under-trial prisoners whose names are given in the newspaper cuttings have been in jail for as many as 5, 7 or 9 years and a few of them, even more than 10 years, without their trial having begun. What faith can these lost souls have in the judicial system which denies them a bare trial for so many years and keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them. It is a travesty of justice that many poor accused, 'little Indians, are forced into long cellular servitude for little offences' because the bail procedure is beyond their meagre means and trials don't commence and even if they do, they never conclude. There can be little doubt, after the dynamic interpretation placed by this Court on Article 21 in Maneka Gandhi v. Union of India, [1978]2SCR621 that a procedure which keeps such large number 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 requirement of that Article. It is necessary, therefore, that the law as enacted by the Legislature and as administered by the courts must radically change its approach to pretrial detention and ensure 'reasonable, just and fair' procedure which has creative connotation after Maneka Gandhi's case (supra).

  3. Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The CrPC, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century, and where an accused is to be released' on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so un-realistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sure-ties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical privations of jail life, (2) they are prevented from contributing to the preparation of their defence and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is here that the poor find our legal and judicial system oppressive and heavily weighed against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. The Legal Aid Committee appointed by the Government of Gujarat under the Chairmanship of one of us, Mr. Justice Bhagwati, emphasised this glaring inequality in the following words:

    The Gujarat Committee also pointed out how the practice of fixing the amount of bail with reference to the nature of the charge without taking into account relevant factors, such as the individual financial circumstances of the accused and the probability of his fleeing before trial, is harsh and oppressive and discriminates against the poor:

    The same anguish was expressed by President Lyndon B. Johnson at the time of signing the Bail Reforms Act, 1966:

    Today, we join to recognize a major development in our system of criminal justice: the reform of the bail system.


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119 practice notes
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2 firm's commentaries
  • The Right To Speedy Justice & New Avtar Of Fast Track Courts
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    • Mondaq India
    • 29 May 2002
    ...Shantilal Panchal v. State of Gujarat (2001) 3 SCC 1. iii Maneka Gandhi v. Union of India AIR 1978 SC 597;Hussainara v. State of Bihar AIR 1979 SC 1360;Raghubir Singh v. State 1987 SC149; iv For classical example of judicial delays see'102 and still going Strong by Manish Tiwari, THE HINDUS......
  • Wrongful Prosecution-Victim's Rights And State's Obligations
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    ...and not "arbitrary, fanciful or oppressive". Further, the Hon'ble Supreme Court in Hussainara Khatoon (I) v. Home Secy., State of Bihar, (1980) 1 SCC 81, recognizing the right to speedy trial as one of the offshoots of the rights conferred under Article 21 of the Constitution has held, "No ......
3 books & journal articles
  • Judicial Ombudsman for Subordinate Judiciary in India
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    • Indian Journal of Public Administration No. 57-3, July 2011
    • 1 July 2011
    ...to people and its independence needs to be ensured. Accountability can be provided for by 191 SCC 225, A.R.Antulay vs. RS.Naik; (1980) 1 SCC 81, Hussain Ara Khatoon vs. State of Bihar. 20op. cit, 2002. 500 I INDIAN JOURNAL OF PUBLIC ADMINISTRATION VOL. LVII, NO. 3, JULY-SEPTEMBER 2011 the p......
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    • Journal of National Law University New Delhi No. 6-1, June 2019
    • 1 June 2019
    ...(III) (1980) 1 SCC 98 at 107.25 Khatri Rao (II) (1981) 1 SCC 627 at 633.26 Hussainara Khatoon (I) v. State of Bihar (Khatoon (I)) (1980) 1 SCC 81 at 86 (India).27 See id.; Kadra Pahadiya & Ors. v. State of Bihar (Kadra Pahadiya) (1981) 3 SCC 671 (India); Nimeon Sangma & Ors. v. Home Secy., ......
  • ‘Using’ Crisis of Governance as an Opportunity for ‘Re-invention’: Why the Supreme Court of India Took To Hearing Public Interest Litigations—A Case Study
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    • Asian Journal of Legal Education No. 7-2, July 2020
    • 1 July 2020
    ...NLSIR. 1, 12 (2010).4 INdIa CoNSt. arts. 32, 226.5 S.P. Gupta v Union of India, AIR 1982 SC 149. 6 Hussainara Khatoon v State of Bihar, AIR 1979 SC 1360.7 The mean figures of PIL decisions from 1979 to 1990, from 1991 to 2000 and from 2001 to 2008 have been 62, 196 and 433, respectively. So......

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