Hussainara Khatoon v. Home Secretary, State of Bihar

A habeas corpus (a court order to produce a detained person) petition reached the Supreme Court. It showed that many undertrial prisoners (persons in jail awaiting trial) in Bihar had spent years in jail without trial. The Supreme Court ordered their release on personal bonds (the accused's own written promise to appear) with no money to be paid. In its reasons, it held that speedy trial (a reasonably expeditious trial) is part of Article 21.

Quick Revision

Parties

Hussainara Khatoon & Ors. — petitioners. They filed a writ petition (a petition for a court's formal order) for habeas corpus for undertrial men, women and children kept in jail for years.

Home Secretary, State of Bihar, Govt. of Bihar, Patna — respondent. Notice was issued to the State. No one appeared for it on 5 February 1979.

Procedural History

The judgment is a statement of reasons for an order already made. It has no numbered paragraphs, so opinions are cited by judge.

1. The petitioners filed Writ Petition No. 57 of 1979 in the original jurisdiction of the Supreme Court. It asked for a writ of habeas corpus.
2. The Court issued notice to the State of Bihar about two weeks before 5 February 1979.
3. On 5 February 1979 no one appeared for the State, although notice had been issued (Bhagwati, J.). Pathak, J. adds that sufficient opportunity was given.
4. On 5 February 1979 the Court made an order. It directed the release of the undertrials named in the Indian Express issues of 8 and 9 January 1979. They were to execute a personal bond with no monetary obligation (Bhagwati, J.; Pathak, J.).
5. The Court gave the State further opportunity to appear and posted the petition for final hearing on 19 February 1979 (Pathak, J.).
6. The judgment of 12 February 1979 states the reasons for the order of 5 February 1979. Bhagwati, J. wrote it for himself and Koshal, J. Pathak, J. gave a separate opinion.

Facts

1. The Indian Express of 8 and 9 January 1979 carried reports about undertrial prisoners in Bihar jails. These reports were incorporated in the writ petition.
2. A large number of men and women, children included, were behind bars for years awaiting trial.
3. Some of them faced trivial offences. Even if proved, those offences would not warrant punishment for more than a few months, perhaps a year or two.
4. They had been in jail for periods ranging from three to ten years without their trial having commenced.
5. Some named prisoners had been in jail for as many as 5, 7 or 9 years. A few had been there for more than 10 years. Their trial had not begun.
6. They were kept in jail because they were too poor to afford bail, and the courts had no time to try them.
7. The petitioners stated that the offences, even if proved, would not warrant punishment for more than a few months.
8. Notice was issued to the State of Bihar two weeks before 5 February 1979. On 5 February 1979 no one appeared for the State.
9. The Court therefore proceeded on the basis that the allegations in the newspaper cuttings were correct.

Issues Raised

The judgment does not list issues. The questions below are the ones its reasons address.

1. Is a procedure that keeps large numbers of people behind bars for years without trial reasonable, just or fair under Article 21?
2. Is speedy trial, meaning reasonably expeditious trial, a part of the fundamental right in Article 21, although not specifically listed as a fundamental right?
3. Must courts abandon the practice of ordering bail only against sureties, and when may an accused be released on personal bond?
4. Would a person denied speedy trial be entitled to be released unconditionally and freed from the charge? Bhagwati, J. left this for the hearing on the merits.
5. Was the continued detention of the undertrial prisoners an infringement of Article 21 or illegal on other grounds? Pathak, J. left this for the final determination of the petition.

Arguments Contended

The reported judgment does not set out arguments of counsel for either side. It records the following.

For the petitioners:

• A large number of men and women, children included, were in jail for years awaiting trial in courts of law.
• The offences, even if proved, would not warrant punishment for more than a few months.
• The writ petition incorporated the Indian Express reports of 8 and 9 January 1979.

For the respondent:

• No one appeared for the State of Bihar on 5 February 1979, although notice had been issued two weeks earlier. No argument for the State is recorded.

Court's Reasoning

The judgment has two opinions. Bhagwati, J. wrote the judgment of the Court for himself and Koshal, J. Pathak, J. gave a separate opinion.

Justice Bhagwati (for himself and Koshal, J.)

1. Noted: The petition shows a shocking state of affairs in the administration of justice in Bihar. An alarmingly large number of men and women, children included, are behind bars for years awaiting trial.
2. Noted: The offences charged are trivial. Even if proved, they would not warrant punishment for more than a few months, perhaps a year or two.
3. Noted: These prisoners had been in jail for three to ten years without their trial having commenced. The Court calls this a crying shame on a judicial system that allows it.
4. Noted: The Court says the system speaks loudly of human rights and basic freedoms. It asks whether it is denying those rights to nameless persons who may ultimately be found not to have committed the offences.
5. Noted: The Court asks whether expeditious trial and freedom from detention are not part of human rights and basic freedoms.
6. Noted: Many prisoners do not remember when they entered jail or for what offence. In the Court's words, they are "mere ticket-numbers".
7. Noted: It is high time the public conscience is awakened. In the dark cells of prisons many wait for justice, which is beyond their reach.
8. Noted: "Law has become for them an instrument of injustice". They are helpless victims of the callousness of the legal and judicial system.
9. Noted: The legal and judicial system has to be revamped and restructured. Otherwise such injustices will disfigure the fair face of our nascent democracy.
10. Noted: Notice was issued to the State of Bihar two weeks before. On 5 February 1979 no one appeared for it.
11. Held: At this stage the Court must treat the allegations as correct. They are in the Indian Express issues of 8 and 9 January 1979, which are incorporated in the writ petition.
12. Noted: The newspaper information is most distressing. It is enough to stir the conscience of any socially motivated lawyer or judge.
13. Noted: Some of the undertrial prisoners named had been in jail for 5, 7 or 9 years, and a few for more than 10 years, without their trial having begun.
14. Noted: The Court asks what faith these lost souls can have in a system that denies them a bare trial for so many years. They are kept there not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them.
15. Noted: It is a travesty of justice that, in the quoted words, "little Indians, are forced into long cellular servitude for little offences". The bail procedure is beyond their meagre means, and trials do not commence or never conclude.
16. Held: After the dynamic interpretation of Article 21 in Maneka Gandhi v. Union of India, a procedure that keeps so many people behind bars so long cannot possibly be regarded as reasonable, just or fair. The requirement of that Article is not met.
17. Held: The law as enacted by the Legislature and as administered by the courts must radically change its approach to pre-trial detention. It must ensure a reasonable, just and fair procedure, which has a creative connotation after Maneka Gandhi's case.
18. Noted: One reason for the denial of justice to the poor is the highly unsatisfactory bail system. It has a property oriented approach. It assumes wrongly that risk of monetary loss is the only deterrent against fleeing from justice.
19. Noted: The Code of Criminal Procedure, even after re-enactment, keeps the same outdated approach as the earlier Code enacted towards the end of the last century.
20. Noted: Where an accused is released on a personal bond, the Code insists that the bond contain a monetary obligation. The accused must pay a sum of money if he fails to appear at the trial.
21. Noted: The courts mechanically insist, as a matter of course, that the accused produce sureties who will stand bail. The sureties must again establish their solvency to pay up the bail amount if the accused does not appear.
22. Noted: This system operates very harshly against the poor. Only the non-poor are able to take advantage of it by getting released on bail.
23. Noted: The courts often fix the bail amount so unrealistically high that, in a majority of cases, the poor cannot satisfy the police or the Magistrate about their solvency. Even without sureties, the poor find bail difficult to furnish.
24. Noted: Where bail is with sureties, as is usually the case, it is almost impossible for the poor to find sufficiently solvent persons to stand as sureties.
25. Noted: The poor are then cheated by police and revenue officials, by agents (touts) and by professional sureties. Sometimes they incur debts to secure release. Or they remain in jail until the court takes up their cases for trial.
26. Noted: The grave consequences are three.
    • Though presumed innocent, they suffer the psychological and physical deprivations of jail life.
    • They are prevented from contributing to the preparation of their defence.
    • They lose their jobs, if they have any, and cannot work to support themselves and their families. The burden of detention falls heavily on the innocent members of the family.
27. Noted: Here the poor find the legal and judicial system oppressive and heavily weighted against them. A feeling of frustration and despair comes upon them, because they are helplessly unequal with the non-poor.
28. Noted: The Legal Aid Committee appointed by the Government of Gujarat, chaired by Bhagwati, J., described the bail system as extremely unsatisfactory and needing drastic change.
    • It is virtually impossible to translate risk of non-appearance into precise monetary terms.
    • The premise that risk of financial loss is necessary to stop the accused from fleeing is of doubtful validity.
    • Several considerations deter an accused from running away. Financial loss is only one of them, and not a major one.
    • The Manhattan Bail Project and the D.C. Bail Project in the United States secured the accused's presence at trial in many cases without monetary bail.
    • The system discriminates against the poor, who cannot furnish even a small bail. The wealthy in similar circumstances can.
29. Noted: The Gujarat Committee also criticised fixing the bail amount mechanically, by a schedule related to the nature of the charge.
    • Little weight is given to the probability that the accused will flee, or to his individual financial circumstances.
    • Courts treat the rich and the poor equally and so produce inequality. The rich accused is released; the poor accused is not.
30. Noted: President Lyndon B. Johnson expressed the same anguish when he signed the Bail Reforms Act, 1966. He said the bail system had endured, archaic and unjust, since the Judiciary Act of 1789.
    • The principal purpose of bail is to make sure an accused returns for trial.
    • The defendant with means can buy his freedom. The poorer defendant stays in jail for weeks, months or years before trial.
    • He does not stay because he is guilty, because a sentence has been passed, or because he is more likely to flee. In the President's words, "He stays in jail for one reason only-because he is poor".
31. Held: The bail system must be thoroughly reformed. This is imperative if we want to remove the evil effects of poverty and give the poor fair treatment in the administration of justice. The poor, like the rich, must be able to get pre-trial release without jeopardizing the interest of justice.
32. Noted: It is high time Parliament realised that risk of monetary loss is not the only deterrent against fleeing. Other factors also deter.
33. Noted: Ours is a socialist republic with social justice as the signature tune of the constitution. Parliament should consider making other factors determinative of bail.
    • Family ties.
    • Roots in the community.
    • Job security.
    • Membership of stable organisations.
    In appropriate cases the accused should be released on his personal bond without monetary obligation.
34. Noted: It may then be necessary to amend the penal law. An accused who wilfully fails to appear in compliance with the promise in his personal bond should be liable to penal action.
35. Held: Even under the law as it stands today, courts must abandon the outdated concept that pre-trial release is ordered only against bail with sureties. That concept is outdated, and experience shows it has done more harm than good.
36. Noted: The new insight into pre-trial release developed in socially advanced countries, particularly the United States, should now inform the decisions of our courts.
37. Held: The court may be satisfied, on information placed before it, that the accused has roots in the community and is not likely to abscond. Then it can safely release him on his personal bond.
38. Held: To decide whether the accused has roots in the community, the court should consider eight factors.
    1. The length of his residence in the community.
    2. His employment status, history and financial condition.
    3. His family ties and relationships.
    4. His reputation, character and monetary condition.
    5. His prior criminal record, including any record of prior release on recognizance or on bail.
    6. The identity of responsible members of the community who would vouch for his reliability.
    7. The nature of the offence charged and the apparent probability of conviction and likely sentence, in so far as relevant to the risk of non-appearance.
    8. Any other factors showing the accused's ties to the community or bearing on the risk of wilful failure to appear.
39. Held: The court may be satisfied that the accused has ties in the community and there is no substantial risk of non-appearance. Then he may, as far as possible, be released on his personal bond.
40. Held: The court may not release on personal bond, and may insist on bail with sureties, if there may be a substantial risk of non-appearance. The Court gives as examples, only by way of illustration, a notorious bad character, a confirmed criminal or a serious offence.
41. Held: In the majority of cases, family ties, roots in the community and employment status may prevail with the court in releasing the accused on personal bond.
42. Held: The offence may not be grave, and the accused may be poor or from a weaker section of the community. Then release on personal bond could, as far as possible, be preferred.
43. Held: The amount of the bond should not be based merely on the nature of the charge. It is an individualised decision, depending on the accused's financial circumstances and the probability of his running away. It must not be fixed mechanically by a schedule keyed to the charge.
44. Why: Otherwise it would be difficult for the accused to secure release even by executing a personal bond.
45. Held: It is harsh and oppressive to require the accused to satisfy the court that he is solvent enough to pay the bond amount if it is forfeited. The same applies to the police when granting bail.
46. Held: The inquiry into solvency can harass the accused and often leads to denial of bail and loss of liberty. It should not be insisted on as a condition of accepting the personal bond.
47. Noted: Bail may be administered in this way even under the existing law. That will go a long way towards relieving the hardship of the poor and helping them secure pre-trial release.
48. Noted: For this reason the Court directed that the undertrial prisoners named in the two Indian Express issues be released immediately on their personal bond.
49. Noted: The Court would ordinarily have required a personal bond with monetary obligation. It directed that there be none, as an exceptional measure.
    • All these persons had been in jail without trial for several years.
    • In some cases the likely punishment was less than the period of detention.
    • The order was merely an interim order.
    The peculiar facts and circumstances dictated this unusual course.
50. Noted: Another defect of the system is the notorious delay in disposing of cases. It reflects badly on the system that a trial does not even commence for years.
51. Noted: Even a delay of one year in commencing a trial is bad. It is far worse when the delay is 3, 5, 7 or even 10 years.
52. Held: Speedy trial is of the essence of criminal justice. Delay in trial by itself constitutes denial of justice.
53. Noted: In the United States speedy trial is a constitutionally guaranteed right. The Sixth Amendment gives the accused the right to a speedy and public trial in all criminal prosecutions.
54. Noted: Article 3 of the European Convention on Human Rights, as the Court quotes it, gives a right to trial within a reasonable time. The alternative is release pending trial. It covers everyone arrested or detained.
55. Held: Speedy trial is not specifically listed as a fundamental right in our Constitution. But it is implied in the broad sweep and content of Article 21, as interpreted in Maneka Gandhi v. Union of India.
56. Noted: The Court held in Maneka Gandhi that Article 21 gives every person a fundamental right not to be deprived of life or liberty except by procedure prescribed by law. It is not enough that some semblance of a procedure is prescribed. The procedure must be reasonable, fair and just.
57. Noted: If a person is deprived of liberty under a procedure that is not reasonable, fair or just, the deprivation violates Article 21. He may enforce that right and secure his release.
58. Held: A procedure for depriving a person of liberty cannot be reasonable, fair or just unless it ensures a speedy trial to decide his guilt. No procedure that does not ensure a reasonably quick trial can be so regarded. It breaks Article 21.
59. Held: Speedy trial, meaning reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty in Article 21.
60. Noted: A further question arises. If a person is denied speedy trial and is sought to be imprisoned after a long-delayed trial, would he be entitled to unconditional release, freed from the charge? Would trying and convicting him after an unduly long time violate Article 21?
61. Held: The Court will consider that question when it hears the writ petition on the merits on the adjourned date. It is left undecided.
62. Held: One thing is certain. It is high time the State Government realised its responsibility in the administration of justice and set up more courts for the trial of cases.
63. Noted: Setting up more courts is not enough. The State Government must staff them with competent judges and do whatever is needed to recruit them, such as improving their conditions of service.
64. Noted: Only then will the system become an effective instrument for reaching justice to the large masses for whom justice today is a meaningless and empty word.
65. Noted: These are the reasons for the order dated 5 February 1979. The Court will hear the writ petition on 19 February 1979.

Justice Pathak (separate opinion)

1. Noted: Unnecessarily prolonged detention of undertrials before they are brought to trial is an affront to all civilized norms of human liberty.
2. Noted: Any meaningful concept of individual liberty, the bedrock of a civilized legal system, must view with distress long imprisonment before trial.
3. Noted: The primary principle of criminal law is that "imprisonment may follow a judgment of guilt. But should not precede it". Another principle makes it desirable that the accused is present to receive his sentence if found guilty.
4. Noted: The Code of Criminal Procedure, both the old Code and the new, provides for release on bail or on a bond without sureties for the accused's appearance.
5. Noted: Even so, many persons named in the Indian Express of 8 and 9 January 1979 have been in prison for long years without being brought to trial. This appears prima facie (at first sight) from the record.
6. Noted: Sufficient opportunity was given to the State of Bihar to meet the allegations, but no one appeared for it. Because of the importance of the questions, the Court gave the State a further opportunity. It posted the petition for final hearing on 19 February 1979.
7. Held: There was no reason to deny interim relief to these undertrials. After considering each individual undertrial, it was appropriate in the interests of justice to make the order of 5 February 1979. That order directed release on executing a personal bond.
8. Noted: The order is somewhat unusual because the personal bond in each case is not based on any monetary obligation. That condition was included as an exceptional measure, under the persuasive pressure of the particular facts and circumstances of the case.
9. Held: The Code of Criminal Procedure gives wide power to release a prisoner awaiting trial on bail or on a personal bond without sureties. It is for the courts to acquaint themselves fully with the nature and extent of that discretion.
10. Held: It is no longer possible to accept a mechanical exercise of the power. The amount of security or monetary obligation in a bond calls for careful consideration of several factors.
11. Why: The only object is to ensure that the undertrial does not flee or hide from trial. All relevant considerations on that question must be taken into account.
12. Noted: A broad impression of the considerations can be drawn from the United States Bail Reform Act of 1966, which tells the judicial officer to consider the following.
    • The nature and circumstances of the offence charged.
    • The weight of the evidence against the accused.
    • The accused's family ties, employment and financial resources.
    • His character and mental condition.
    • The length of his residence in the community.
    • His record of convictions.
    • His record of appearance at court proceedings, or of flight to avoid prosecution or failure to appear.
13. Held: These are considerations to keep in mind when determining the amount of the security or monetary obligation.
14. Noted: Perhaps, if this is done, the abuses of the prevailing system of pre-trial release in India could be avoided or greatly reduced. Pathak, J. cites Moti Ram and Others v. State of Madhya Pradesh.
15. Held: He refrains from any final comment on the legality and propriety of continued detention of the undertrials. This applies both to infringement of Article 21 and to other grounds. That should await the final determination of the habeas corpus petition.
16. Noted: These are the reasons that influenced him in making the order dated 5 February 1979.
17. Noted: In concluding, he draws attention to the absence of an explicit provision in the Code of Criminal Procedure. No provision enables release of an undertrial on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision.
18. Noted: Thousands of undertrial prisoners in Indian prisons include many who cannot secure release because they cannot produce a sufficient financial guarantee. Where that is the only reason for their continued jail, there may be good ground to complain of unfair discrimination.
19. Noted: This is more so under a constitutional system that promises social equality and social justice. Deprivation of liberty for financial poverty only is an out-of-place element in such a society.
20. Noted: There are sufficient guarantees of appearance in the host of considerations mentioned earlier. Law-makers would take an important step in defence of individual liberty by making statutory provision for non-financial releases.

Authorities

• Maneka Gandhi v. Union of India ([1978] 2 SCR 621): cited by Bhagwati, J. for its dynamic interpretation of Article 21. The procedure must be reasonable, just, fair and creative. A procedure that does not ensure speedy trial fails that test (Bhagwati, J.).
• Moti Ram and Others v. State of Madhya Pradesh ([1978] 4 SCC 47; the headnote spells it Moti Ram & Ors. v. State of M.P.): referred to by Pathak, J. cited by Pathak, J. with "See" after his remark that abuses of the pre-trial release system could be avoided or greatly reduced.

Also cited in footnotes: none. The judgment's only footnote marker is a reference to Maneka Gandhi v. Union of India, listed above.

Provisions mentioned

• Article 21 of the Constitution: a fundamental right not to be deprived of life or liberty except by procedure prescribed by law. The procedure must be reasonable, fair and just. Bhagwati, J. holds that speedy trial is implicit in it.
• Code of Criminal Procedure (the old Code and the new Code): provides for release on bail or on a bond without sureties. The Court says it keeps an outdated, property oriented approach, with a monetary obligation in the bond.
• Sixth Amendment to the United States Constitution: gives the accused in all criminal prosecutions the right to a speedy and public trial.
• Article 3 of the European Convention on Human Rights (as quoted): everyone arrested or detained is entitled to trial within a reasonable time or to release pending trial.
• United States Bail Reforms Act, 1966 (18 USS 3146 (b)): lists what the judicial officer must weigh to assure appearance. The President's speech at its signing is quoted. Pathak, J. quotes the provision.
• Judiciary Act of 1789 (United States): mentioned in the President's speech as the origin of the bail system that had endured since then.

Judgement

1. The undertrial prisoners named in the two issues of the Indian Express (8 and 9 January 1979) were to be released immediately on their personal bond. This was done by the order of 5 February 1979 (Bhagwati, J.; Pathak, J.).
2. The personal bond need carry no monetary obligation. This was an exceptional and interim measure, based on the particular facts of the case (Bhagwati, J.; Pathak, J.).
3. The writ petition would be heard on 19 February 1979 (Bhagwati, J.; Pathak, J.).
4. The question whether a person denied speedy trial is entitled to unconditional release and freedom from the charge was left for the hearing on the merits (Bhagwati, J.).
5. The State Government was told that it is high time it set up more courts and manned them with competent judges, improving their conditions of service if necessary (Bhagwati, J.).
6. Pathak, J. made no final comment on the legality of the continued detention, under Article 21 or other grounds. That awaits the final determination of the petition.
7. The judgment records no order on costs.

Legal Principle / Ratio

Speedy trial, meaning reasonably expeditious trial, is an integral and essential part of the right to life and liberty in Article 21. A procedure that does not ensure it cannot be reasonable, fair or just. Courts must stop ordering pre-trial release only against bail with sureties. An accused with roots in the community may be released on personal bond, with an amount decided individually.

Key holding of Bhagwati, J.: "it is implicit in the broad sweep and content of Article 21". In plain words, speedy trial is part of Article 21 even though it is not listed separately.

Critical Analysis

Analysis based on the judgment text.

The order is interim. The Court says the order of 5 February 1979 was merely an interim order. It leaves open whether a person denied speedy trial must be released unconditionally and freed from the charge. The judgment gives the right but not yet the final remedy.

The facts rest on newspaper reports. The Court proceeded on the basis that the allegations in the Indian Express cuttings were correct, because no one appeared for the State. The judgment itself does not list the prisoners' names or the individual charges.

The two opinions differ in what they decide. Bhagwati, J. holds that speedy trial is implicit in Article 21. Pathak, J. refrains from any final comment on whether continued detention infringes Article 21. His opinion does not discuss speedy trial as a fundamental right.

Significance

The judgment records that speedy trial is implicit in Article 21, on the strength of Maneka Gandhi. It does this in the context of poor undertrial prisoners, a group that the bail system affected most.

It also changes how courts must approach bail. Bhagwati, J. says courts must abandon bail only with sureties, and must individualise the amount of a bond. Both opinions urge the legislature to act on release without financial conditions.

Exam-Important Points

• Facts in one line: undertrial prisoners in Bihar had been in jail for years with no trial. A habeas corpus petition led the Court to order their release on personal bonds without monetary obligation.
• Speedy trial is implicit in Article 21, reading it with Maneka Gandhi's fair, just and reasonable procedure test. Trial means reasonably expeditious trial.
• Trap: this is an order with reasons, not the final judgment. The remedy for denial of speedy trial was left for the hearing on 19 February 1979.
• Trap: the bond without monetary obligation was an exceptional, interim measure because of the peculiar facts. It is not a general rule that no bond amount may ever be fixed.
• Bail factors: eight factors on roots in the community. Bond amount is an individualised decision and must not follow a schedule keyed to the charge.
• Do not insist on proof of solvency for accepting a personal bond. The Court calls it harsh and oppressive.
• Two opinions: Bhagwati, J. (for himself and Koshal, J.) and Pathak, J. (separate). Pathak, J. made no final comment on Article 21.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so opinions are cited by judge. The citation shown comes from the header of the source text.