HUSSAINARA KHATOON & ORS. versus HOME SECRETARY, STATE OF BIHAR, GOVT. OF BIHAR. PATNA

Citation: [1979] 3 S.C.R. 169 · Decided: 12-02-1979 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Disposed off

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Judgment (excerpt)

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HUSSAINARA KHATOON & ORS.
v.
HOME SECRETARY, STATE OF BIHAR, GOVT. OF
BIHAR. PATNA
F e.bruary 12, 1979
[P. N. BHAGWATI, R. S. PATHAK AND A. D. KOSHAL, JJ.]
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Administration of Justice-Pre-trial detention-Right of under-trial prisoner
to have a speedy trial-Art. 21 of Constitution of India .
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__ Pre-trial release--C'oncept of-Determinative factor~ in grant of bail and
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release of under-trial prisoner on personal bond without monetary obligation
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explainl·d.
In their petition for the issue of a writ of habeas corpus the petitioners stated
that a large nun1ber of men and women i•.1cluding childr'en were in jails for years
awaiting-trial in courts of law and that the offences, even if proved, would not
warrant punishn1ent for more than a few months. Although sufficient opportunity
was give.,,_, the State did not appea.r before the Court.
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Directing the release of the undertrials on their executing a personal bond.
HELD:
(Per Bhagwati & Koshal, JJ.)
1. A procedure "".hich keeps large number of people behind bars without trial
for long, cannot possibly be regarded as "rentsonable, just or fair" so as. to be in
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conformity wi1h the requirement of Art. 21. It is necessary, therefore, that the
law as enacted by the Legislature and as administered by the courts must radicaliy
chang~ its approach to pre-trial detention and ensure 'reasonable, 1ust an.J. fair'
procedure which has a creative connotation after the decision of the Supreme
Court in Maneka Gandhi's case. [174 C·D]
2. Speedy trial is of the essence of criminal justice and, therefore, d_elay in
trial by itself constitutes denial of justice. Though speedy trial is not sptcifically
):~enun1erated as a fundamental right, it is implicit in the broad sweep and C(Jntent
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of Art. 21.
Speedy trial which means reasonably expeditious trial, is an itite·gral
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part of the fundamental right to life and liberty 'enshrined il"l Art. 21, [179 H,
180 c, F]
Art. 21 confers a. fundamental right on every person not to be deprived of his
tife or liberty except in accordance with the procedure prescribed by law and it
is not e~ough to constitute compliance with the requirement of that Article that
some semblance of a procedure should be prescribed by Iaw, but that the pro ..
cedure should be "reasonable, fair and just".
If a person is deprived of his
liberty under a procedure which is not "reasonable, fair or just", such deprivation
would be violative of his fundamental right under Art. 21 and he would be entitled
to enforce such fund.am'ental right and secure his release.
Any procedure pres~
cribed by law for depriving a person of his liberty cannot be "reasonable1 fair or
just" unless. that procedure 'ensure.5 a ~pecdy trial for determination of the guilt
of such·person. [180 D-EJ
12-196SC!/79
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SUPREME COURT REPORTS
[1979] 3 s.c.Jt.
Maneka Gandhi v. Union of ln;dia, [1978] 2 SCR 621; referred to.
3. Expeditious trial and freedom from detention are part of human rights an&
basic freedoms.
The judicial system which permits incarceration of men an4
women for long peripds of time withcut trial is denying human rights to suck
undertrials and withholding basic freedoms from th'em.
Law has become for
them an iruttrument of injustice and they are helpless and despairing victims of
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the callousness of the legal and judicial system. [173 C-E, F]
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4. One reason why our legal and judicial system continually denies justice
te the poor -by keeping them for long years in pretrial detention is the highly
unsatisfactory bail system, which suffers from a property oriented approach. It
proceeds on th'e erroneous assumption that risk of monetary loss is the only
deterrent against fleeing from justice. Even after its re-enactment1 the Code _'!.-....1. •
Criminal Procedure cootinues to adopt the same antiquated approach.
Where ~
an accused iao to be released on his personal bond, it insists that the bond ehould
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contain a monetary obligation requiring the accused to pay a sum of money in
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case he fails to appear at the trial. Moreover, as if this were not sufficient deter-
rent 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 sure-
ties must again esta.blish th'eir solvency to be able to pay the amount of bail
in case the accused fails to app'ear to answer the charge. [17 4 E-

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