Dr.

Ram Manohar Lohiya National

Law University, Lucknow

Basics of Case Law

(2019-20)
Hussainara Khatoon v. State of Bihar
Submitted to: Submitted by:
Dr. Abdullah Nasir Shruti Priya Mishra Sec: B
Assistant Professor (Law) Enrolment No.:190101144
RMLNLU, Lucknow B.A.LL.B. (Hons.) – 1stSem
 ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me
during the writing of this project Case analysis of “Hussainara Khatoon v. State of
Bihar”. Words are inadequate in offering my deep sense of gratitude to my Professor
Mr. Abdullah Nasir for his precious guidance.

With his enthusiasm, his inspiration and his great efforts to explain things clearly and
simply, he helped throughout my analysis of work with lots of encouragement, sound
advice, and good innovation. I would also like to thank all my colleagues and seniors for
providing me support and material facts and figures related to this topic.

I would also like to thank the librarians of Dr. Madhu Limaye Library who extended their
assistance to me by helping me out consult the relevant books.

I know that despite my best efforts some discrepancies might have crept in which I
believe my humble Professor would forgive. Last but not the least, I would like to thank
my parents for providing me appropriate guidance and support to prepare the project.
All the above mentioned people have whole heartedly helped me to make this project in
the present shape.

Thanking You All

 ABBREVIATIONS

1. AIR – All India Reporter

2. SCR – Supreme Court Reporter
3. Art. – Article
4. SC – Supreme Court
5. PIL – Public Interest Litigation
 TABLE OF CONTENTS
1. Acknowledgement……………………………………………………2
2. Abbreviations…………………………………………………………3
3. Introduction……………………………………………………………5
4. Statement of Facts…………………………………………………….6
5. Issues Raised………………………………………………………….7
6. Judgment……………………………………………………………..8
7. Conclusion…………………………………………………….………12
8. Bibliography……………………………………………………………14
 INTRODUCTION
Legal Aid implies giving free legal services to the poor and needy who cannot
afford the services of a lawyer for the conduct of a case or a legal proceeding in
any court, tribunal or before an authority. Article 39A 1of the Constitution of India
provides that State shall secure that the operation of the legal system promotes
justice on a basis of equal opportunity, and shall in particular, provide free legal
aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disability. But what was happening in the jails of Bihar in 1970s
was total denial of this directive principle. There were under trial prisoners in jail
who had been rotting away for years more than what the punishment of their
alleged crime was. Here are the stories of some of those ill-fated people

Hussainara Khatoon who ran away from Bangladesh sometime in 1975, was in
protective custody since 4 years although instructions had been issued that all those
who were arrested under Foreigners Act coming from Bangladesh should be
released on a bond.

Ramsagar Mistri was arrested in 1969 for committing dacoity and committed to
sessions in 1972. The sessions trial had not started yet and he had been in custody
for nine and a half years already.

Janki Devi a young girl who had been in jail for seven years as under trial. She had
been prosecuted for infanticide of her new born child. She had a son with her who
had spent his entire life in jail.

These are just 3 cases. There were many more. The only mistake of these people
was that they were poor and could not afford a lawyer and did not know about their
rights.

1
Article 39A, Constitution of India, 1950
 STATEMENT OF FACTS
 On 8 and 9 January 1979 The Indian Express published two articles by K.F.
Rustamji, then member of the National Police Commission, based on his
Tour Note No. 10 in which he gave 19 instances of prisoners, some of whom
had been in jail awaiting trial for periods that were longer than the time they
might have spent had they been charged, tried, convicted and given
maximum punishment for the offence. Some instances of the case studies
excerpted from Rustamji’s Tour Note to the central government on under
trial prisoners languishing in the district jails at Patna and Muzaffarpur for
no crime other than their poverty are being reproduced here to give an idea
of the desperate plight of those involved.
 Nirmal Hingorani a Supreme Court lawyer happened to read Rustamji’s
second article published on 9 January 1979. He and the author, Kapila
Hingorani, moved the Supreme Court through a habeas corpus petition under
article 32 of the constitution, a move that neither Rustamji nor The Indian
Express expected. However, neither Nirmal Hingorani nor the author had a
power of attorney to approach the court, nor were they the close relations or
‘the next of kin’ of the under trials.
 Though Supreme Court rules do not permit the filing of a habeas corpus
petition based on newspaper reports, the author, as a citizen of the country
and officer of the Court, filed the petition based on 11 January 1979,
prepared by Nirmal Hingorani, on behalf of 19 under trial prisoners
mentioned in the articles.
 The registrar’s office duties bound took objection, but were requested to list
the petition before the Court with an office report. Those were the days
when the memories and the excesses of the Emergency were still fresh in the
minds of the public and the courts in India. The court was anything but
newsworthy, functioning within the Anglo-Saxon paradigm and dealing
primarily with cases of men who could afford to move the Supreme Court.
 Given this backdrop, when the habeas corpus petition, registered as
Hussainara Khatoon v. State of Bihar was filed, the author had no inkling as
to what would be the reaction of the court to such a petition filed without a
client, without a power of attorney, without confirmation of facts and only
 on basis of newspaper reports of findings of Rustamji that had been
submitted to central government.
 On 22 January 1979, a bench of Justice V.D. Tulzapurkar and R.S. Pathak
was persuaded about the gravity of the situation and, in view of the fact that
the findings of Rustamji had been submitted to the central government,
issued notice to the state of Bihar.
 After several directions issued by the Supreme Court, on 9 March 1979 a
judgment was passed by a bench consisting of Justice P.N. Bhagwati and
Justice D.A. Desai.

ISSUE
Availability of free legal aid under article 39A of the constitution to the prisoners
under trial in Bihar.
 JUDGEMENT
Decision given by the bench of Justice P.N. Bhagwati and Justice D.A. Desai in
the case of Hussainara Khatoon v. State of Bihar 2held that state could not avoid its
constitutional obligation to provide speedy trial to the accused pleading financial or
administrative inability, and that it was the constitutional obligation of the
Supreme Court, as the guardian of the fundamental rights, to enforce fundamental
rights of citizen by taking positive action such as augmentation and strengthening
the administrative machinery, setting up new courts, building up new court houses,
appointing additional judges and other measures calculated to ensure speedy trial.

Apex court also held that

(1) 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 court's process should have legal services available to him. It is
now well settled, as a result of the decision of this Court in Maneka Gandhi v.
Union of India3 that when Article 214 provides that no person shall be
deprived of his life or liberty except in accordance with the procedure
established by law, it is not enough that there should be some semblance of
procedure provided by law, but the procedure under which a person may be
deprived of his life or liberty should be 'reasonable, fair and just'. Now, a
procedure which does not make available legal services to an accused person
who is too poor to afford a lawyer and who would, therefore, have to go
through the trial without legal assistance, cannot possibly be regarded as
'reasonable fair and just. It is an essential ingredient of reasonable, fair and
just procedure to a prisoner who is to seek his liberation through the court's
process that he should have legal services available to him.

(2) Article 39A also emphasizes that free legal service is an inalienable element
of 'reasonable, fair and just' procedure for without it a person suffering from
economic or other disabilities would be deprived of the opportunity for
securing justice. The right to free legal service is therefore, clearly an
essential ingredient of ‘reasonable, fair and just' procedure for a person
2
Hussainara Khatoon v. State of Bihar 1979 AIR 1369
3
Maneka Gandhi vs. Union of India 1978 AIR 597
4
Article 21, constitution of India, 1950
 accused of, an offence and it must be held implicit in the guarantee of Art 21.
This is a constitutional right of every accused person who is unable to
engage a lawyer and secure legal services, on account of reasons such as
poverty, indigence or incommunicado situation and the State is 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 lawyer. This Court
pointed out in M. H. Hoskot v. State of Maharashtra5 :"Judicial justice, with
procedural intricacies, legal submissions and critical examination of evidence,
leans upon professional expertise; and a failure of equal justice under the law
is on the cards where such supportive skill is absent for one side. Our
judicature, moulded by Anglo-American models and our judicial process,
engineered by kindred legal technology, compel the collaboration of lawyer-
power for steering the wheels of equal justice under the law".

(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 poor" rather than
"law of the poor". The law is regarded by them as something mysterious
and forbidding-always taking something away from them and not as a
positive and constructive social device for changing the socio economic
order and improving their life conditions by conferring rights and benefits 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 equal justice
into legality and that can be done only by a dynamic and activist scheme of
legal services.

(4) The urgent necessity of introducing a dynamic and comprehensive legal

services programme impressed upon the Government of India as also the State
Governments. That is not only a mandate of equal justice implicit in Art. 14
6
and right to life and liberty conferred by Art. 21 but also the compulsion of
the constitutional directive embodies in Art. 39A. Article 39A of the
constitution emphasises that free legal service is an inalienable element of
'reasonable, fair and just' procedure for without it a person suffering from

5
M. H. Hoskot v. State of Maharashtra 1979 SCR (1) 192
6
Article 14, Constitution of India, 1950
 economic or other disabilities would be deprived of the opportunity for
securing justice. 

Commenting on the instances where the under-trial prisoners have been in jail
more than they would have required even if their crime was proved, the Supreme
Court said that:
There are numerous other instances which can easily be gleaned from the lists of
under-trial prisoners filed on behalf of the State of Bihar, where the under-trial
prisoners have been in jail for more than half the maximum term of imprisonment
for which they could be sentenced, if convicted. There is no reason why these
under trial prisoners should be allowed to continue to languish in jail, merely
because the State is not in a position to try them within a reasonable period of time.
It is possible that some of them, on trial may be acquitted of the offences charged
against them and in that event, they would have spent several years in jail for
offences which they are ultimately found not to have committed. What faith would
these people have in our system of administration of justice? Would they not carry
a sense of frustration and bitterness against a society which keeps them in jail for
so many years for offences which they did not commit? It is, therefore, absolutely
essential that persons accused of offences should be speedily tried, so that in cases
where bail, in proper exercise of discretion, is refused, the accused persons have
not to remain in jail longer than is absolutely necessary.

We may remind the Government of the famous words of Mr. Justice Brennan
"Nothing rankles more in the human heart than a brooding sense of injustice.
Illness we can put up with. But injustice makes us want to pull things down. When
only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it
most, cannot have it because its expense puts it beyond their reach, the threat to the
continued existence of free democracy is not imaginary but very real,
because democracy's very life depends upon making the machinery of justice so
effective that every citizen shall believe in an benefit by its impartiality and
fairness."

We would strongly recommend to the Government of India and the State

Governments that it is high time that a comprehensive legal service programme is
introduced in the country. That is not only a mandate of equal justice implicit
in Article 14 and right to life and liberty conferred by Article 21, but also the
compulsion of the constitutional directive embodied in Article 39A.

CONCLUSION
On an exhaustive perusing of the reality of the case and its judgment, I have come
to the conclusion that the case brought to light the degree of injustice suffered by
poor under trials. It highlighted their wasted lives and senseless incarceration by an
oblivious and callous executive and an insensitive subordinate judiciary.
Hussainara Khatoon’s case enabled the court to pierce the prison walls to give
relief to thousands of prisoners without their even being aware of the action being
taken on their behalf. For the first time, it made the highest court of the land
accessible to the most impoverished. It gradually made a vast jail population
somewhat conscious of concept of ‘rights’; it made the state aware of its
constitutional obligations and it made the Court aware of the ineffectiveness of
legal procedure administered mechanically, compelling it to evolve new strategies
and techniques to administer justice.

While Hussainara Khatoon’s case established the fundamental right to speedy trial,
two cases that were offshoots of Hussainara Khatoon’s case laid down the
investigative nature of PIL and the proposition that the remedial powers of the
Supreme Court under article 32 of the Constitution include the power to grant
monetary compensation in addition to compensation under the civil law. These two
cases were Anil Yadav v. State of Bihar and Rudul Shah v. State of Bihar. The
Court imposed a positive constitutional obligation on every magistrate and sessions
judge throughout the country to inform each accused brought before them of
his/her right to free legal aid.

Hussainara Khatoon’s case was the first case in Indian judicial history where the
court departed from the traditional judicial function entailed by the Anglo-Saxon
jurisprudence to provide relief to the helpless prisoners and to launch wide-spread
reform.

Other characteristics of PIL exemplified by Hussainara Khatoon’s case included

the acceptance of press report as the basis of petitions; the releasing of the
petitioner from the burden of of proving alleged facts; the grant of immediate and
interim remedial relief once a prima facie case was made out; the active role of
judge; the reliance on unenforceable Directive Principles of State Policy specified
in the Constitution to read new rights into guaranteed Fundamental Rights. It is
these characteristics that made PIL and the paradigm of la entailed in it unique to
India.

Hussainara Khatoon’s case has resulted in law taking on a new identity as an

instrument of justice responding to the needs of society. The changes are both
structural as well as substantive. The remedial nature of law, the socially motivated
court action, the adherence to the principle of substantive equality rather than
formal equality, the procedural flexibility and the relaxation of the rule of standing
has resulted in the lowering of the barriers between the common man and the court
which has made it possible for the Supreme Court to play its extremely active role
in containing corruption in public office, criminalisation of politics, state terrorism
and administrative sclerosis.

BIBILIOGRAPHY
 http://www.clarkcunningham.org/PIL/KapilaHingorani-ProblemOfUndertrials.pdf

 www.supremecourtcases.com

 www.legalserviceindia.com

 https://www.latestlaws.com

 www.lawtimesjournal.in