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

Citation: [1979] 3 S.C.R. 532 · Decided: 09-03-1979 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Hearing Adjourned
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Judgment (excerpt)

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532 
HUSSAINARA KHATOON & ORS. 
v. 
HOME SECRETARY, STATE OF BIHAR, PATNA 
March 9, 1979 
(P. N. BHAGWATI & D. A. DESAI, JJ.J 
Adn-1inistrc.tion of Justice-Speedy trial-:--Fundamental right of accused-
Conslitutional obligation of State. 
Constit11tion of India 1950-Arts. 21 and 39A-Free legal services to poor 1 
essential efen1ent of 'reasonable fair and just', procedure. 
At the resun1ed hearing of the petition for release of under-tria1s in the 
State o! Bihar. 
HELD : ( 1) The procedure under which a person may be deprived of his 
life or liberty should be 'reasonable fair and just.' Free legal services to the 
poor and the needy is an essential element of any 'reasonable fair and just' 
procedure. 
A prisoner who is to seek his 
liberation through 
the oourt's 
process should have legal services available to him. [537 C, DJ 
Maneka Gandhi v. Union of India, [1978] 1 SCC 248; M. H. Hosko1 v. 
S1ate of Maharashtra, (1978] 3 SCC 544; Gideon v. Wainwright, 372 US 335; 
' L. ed. at 799; John Richard Argersinger v. Raymond Hamlin, 407 U.S. 25 : 
3' L. ed. 2d 530 at 535-36; referred to. 
(2) Article 39A also emp·hasises 
tha·t free legal service is an inallew.ible 
element of 'reasonable, fair and just' procedure for without it a person suffer· 
in,g from econL'IDic or other disabilities would be deprived of the opportunity 
for securing justice, The right to free legal service is therefore, clearly an 
esscnti'RJ 
ingredient of 'reasonable, fair and just' procedure for 
a person 
accused of, an offence and it must be held in1plicit in the guarantee of Art. 21. 
This is a coustitutional right of every accused person who is unable to en{!age 
a lawyer and secure legal services, on account of reasons such as poverty, 
indigence or incomn1unicado situation and the State tS under a mandate to provide 
a lawyer to an accused person if the circumstances of the case and the needs 
of justice so require, provided of course the accused person does not object to 
the provision of such Jawyer. [539 F-540 A] 
(3) The poor in their contact with the legal system have always been on 
the wrong side of the law. They have always come across "law for the pCIOr" 
rother than "law of the poor". 
The law is regarded by them as semeU1ing 
mysterious and forbidding-always taking something away from them and 
not as a positive and constructive social device for changing the socio ecrinomic 
order and improving their life conditions by conferring rights and beneftte on 
them. The result is that the legal system has lost its credibility 
for the 
weaker sections of the community. 
It is, therefore, necessary to inject ~(Ual 
ju.-itice into legality and that can be done only by a dynamic and aed\rist 
scheme of kgol setvices. [541 E-F] 
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H. KHATOON V. HOME SECRETARY (Bhagwati, J.) 
533 
4. The urgent necessity of introducing a dpnamic and comprehensive legal 
services programme impressed upon the Government of India as also the State 
Go\'ernments. 
That is not only a mandate of equal 
justice 
implicit 
in 
Ait. 14 and right to life and liberty conferred by Art. 21 but also the com-
pulsion of -the constitutional directive embodied in Art. 39A'. {542 DJ 
J, The State cannot avoid its constitutional obligation to provide 
speedf 
tria1 to tht ttccused by pleading financial or 
administrative 
inability. The 
State is under a constitutional mandate to ensure speedy trial and whatever i~ 
necessary fer this purpose has to be done by the State. It is also the consti-
tutional obligation of this Court, as the guardian of the fundamental 
right.1 
of the peOp]e, as a sentinel on the qui-vive, to enforce the fundamental right 
of tJ.e ac::used to speedy trial by issuing the necessary directions to the State 
which may include taking of positi\'e action, such as augmenting and streng-
thening the investigative machinery, setting up new courts, building new court 
houses, appointment of additional judges and other measures calculated to en-
sure speedy trial. [543 D-E] 
(6) The courts in the United States have adopted a dynamic and construc-
tive role in regard to prison reform by utilising the activist magnitude of the 
Eighth Amendment. 
The courts have ordered substantial 
improvements 
to 
bC made in a variety of archaic prisons and ·jails through its decisions. [543 Fl 
Rhem v. Malclm, 377 F. Supp. 995, Jackson v. Bishop, 404 F. Supp. 2d. 
571, Holl v. Sarv,,., 309 F. Supp. 362; Jones
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