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Case Study- Hussainara Khatoon V. State of Bihar, AIR 1979 SC 1377

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Published on: January 26, 2013

Hussainara Khatoon v. State of

Bihar, AIR 1979 SC 1377

 Facts: The case dealt, inter alia, with the rights of the under trial prisoners on habeas corpus petitions which disclosed 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, were behind prison bars for years awaiting trial in courts of law. The offences with which some of them were charged were trivial, which even if proved, would not warrant punishment for more than a few months, perhaps a year or two, and yet they remained in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced. The Court ordered immediate release of these under trials many of whom were kept in jail without trial or even without a charge

Ruling: Fairness under Article 21 is impaired where procedural law does not provide speedy trial of accused; does not provide for his pre-trial release on bail on his personal bond, when he is indigent and there is no substantial risk of his absconding; if an under-trial prisoner is kept in jail for a period longer than the maximum term of imprisonment which could have been awarded on his conviction and if he is not offered free legal aid, where he is too poor to engage a lawyer, provided the lawyer engaged by the State is not objected to by the accused.

Where the petitioner succeeds in establishing his case, the Court would grant him any relief which is necessary to afford proper justice, or to prevent manifest injustice regardless of technicalities such as to issue directions to the Government and other appropriate authorities, as may be necessary, to secure to a prisoner his constitutional rights.

The Supreme Court (per Bhagwati J) (at 107, para 10) held that the state cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to improving speedy trial.

In Hussainara Khatoon, the Court laid down an eight point alternative    formula to the conventional grounds for grant of bail, usually offence related or finance-related:

(1) The length of his residence in the community,

(2) His employment status, history and his financial condition,

(3) His family ties and relationships,

(4) His reputation, character and monetary conditions,

(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 the likely sentence in so far as these factors are relevant to the risk of non appearance and

(8) Any other factors indicating the ties of the accused to the community or bearing on the risk of willful failure to appear

 

RIGHT tO SPEEDY TRIAL 

“The accused in these cases might have been on bail – but the injustice of pendency of trial for long periods is the uncertainty and the concomitant anxiety suffered by the under-trial. The under-trial is inhibited in making future plans for his life or executing present ones due to the uncertainty which pendency of trial brings. His confidence starts to erode and at the end of the trial, even if he is honorably acquitted, the scars of the long trial remain. He feels condemned despite the acquittal.”

The right to a speedy trial is first mentioned in that landmark document of English law, the Magna Carta. Article 21 declares that “no person shall be deprived of his life or personal liberty except according to the procedure laid by law.” Justice Krishna Iyer while dealing with the bail petition in Babu Singh v. State of UP, remarked, ”Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.” In Sheela Barse V. Union of India court reaffirmed that speedy trial to be fundamental right. Right to speedy trial is a concept gaining recognition and importance day by day. There are 3 pillars of social restraint and order in India

(1)               Legislature

(2)               Executive

(3)               Judiciary

Legislature is an authority which makes the law & Executive takes into consideration effective implementation of the legislations while judiciary implements it in practical life. The question is whether is anyone really serious and concerns about these problems or is it just a theoretical phenomenon. With the rapid growth in industrial field, technology and population, workload has increased on all the three pillars especially on the  judiciary system which calls for effective and rapid disposal of ever increasing cases but the effectiveness of the court is hampered badly.

(II) Factors for Pendency of the Cases:

Delay in cases can be of two types:

1. Court system delay:

The delay from the time the case is admitted to the time it is taken up in trail.

2. Delay due to lawyers/ advocates and others:

The delay which takes place due the actions of lawyers/ advocates such as adjournments given etc.

However, the chief reasons for delays can be enumerated as follows:

1. The first and the biggest problem are of the delay in disposition of cases. Due to huge pendency, the cases take years for its final disposal, which would normally take few months time. The arrears cause delay and delay means negating the accessibility of justice in true terms to the common man.

2. The judge – population ratio –   presently taking into consideration the population of the country and pendency of the cases the no. of judges available are very less.

3. The infrastructure of the lower courts is very disappointing. Though, the Supreme Court and High Courts are having good infrastructure but this in not the same position with lower courts. The Courts have no convenient building or physical facilities due to which it takes more time to dispose off a case. Good library, requisite furniture, sufficient staff and reasonable space are the need of the qualitative justice and most of these facilities are not available in lower courts.

4. Due to the Independence of Judiciary, some Judges think that they are not accountable to any one due to which many times this factor could drive judges toward comfort; ignorance etc. ultimately results in delay of the cases.

5. Provision for adjournment: The main reason for the delay in the cases is the adjournment granted by the court on unreasonable grounds.

6. Vacation of the court: The reason with providing courts with a vacation period also leads to further delay of the cases especially in country such as India where there are tremendous amount of pending cases. In most of the countries like U.S. and France there is no such provision.

7. Investigative agencies generally delay: The Investigation agencies such as Police also play a role in Delay of cases. Many a times Investigation agencies take time to file up charge sheet in the court due to which delay occurs.

Take into consideration Bhopal Gas Leak Tragedy involving lives of more than 15000 people. 26 years had passed for that incident and still people suffered a lot to get the compensation and no action still has been taken against the main victim of the incidence.

Delay Leads To Mental Anguish:

In Hussainara Khatoon v. State of Bihar which formed the basis of the concept of the Speedy Trial, it was held that where under trial prisoners have been in jail for duration longer than prescribed, if convicted, their detention in jail is totally unjustified and in violation to fundamental rights under article 21. Inordinate delays violates article 21 of the constitution: for more than 11 yrs the trial is pending without any progress for no faults of the accused-petitioner. Expeditious rights are a basic right to everybody and cannot be trampled upon unless any of the parties can be accused of the delay. Delay in trial unnecessarily confers a right upon the accused to apply for bail. Under sec. 482 read with 483, Cr. P.C lays that every possible measure to be taken to dispose off the case within 6months from today. No adjournments to be granted until n unless circumstances are beyond the control of judiciary. It is the responsibility of the judiciary to keep a check on under trial prisoners and bring them to trial. Overcrowded courts, inadequate resources, fiscal deficiency cannot be the reasons for deprivation of a person.

Article 21 Of The Constitution:

This right is implicit in article 14, 19(1) (a) and 21 of the constitution as well as the CPC.
It is the constitutional obligation of the government to devise such procedures as would ensure and implement speedy trial. Supreme Court being majestic authority has to act as guardian of fundamental rights of citizens

Purpose of Criminal Justice:

The main purpose of speedy trial is to safeguard the innocent from undue punishments but due to huge amount of cases pending in the courts cases are delayed unintentionally which creates mental and economic pressure on litigants.

Right To Speedy Trial in Criminal Cases:

Fundamental rights are not teasing illusions but are meant to be enforced effectively. Thus in many cases, now the court has decided to quash the proceedings so as to achieve justice, not just individual justice but also social justice.

Recently in Raj Deo Sharma v. State of Bihar AIR 1998 SUPREME COURT 3281, the Supreme Court, while reiterating that speedy trial is a part of Article 21, again issued certain positive directions to ensure that under-trials do not face trial for unreasonable periods of time. The Court held that cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the Court shall close prosecution evidence on completion of 2 years from the date of recording the plea of the accused on the charges framed whether prosecution has examined all the witnesses or not, within the said period and court can proceed to the next step provided by law for the trial of the case. Then if the offence under trial is punishable with imprisonment for a period exceeding seven years, whether the accused in jail or not, the court shall close prosecution on completion of three years from date of recording of the plea of the accused on the charges framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice, the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time limit. The Court referred to several earlier judgements dealing with the subject of speedy trial (Hussainara Khatoon v. State of Bihar)

The concerns from the view point of accused are:

·   Period or remand should be justified and should be as short as possible

·   Worry, anxiety, expense and disturbance in conducting the trial should be minimal

·   Undue delay may well result in impairment of the ability of the accused to defend him.

RIGHT TO BAIL

In words of Krishna Iyer J. .. the subject of bail:-

” ….. Belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.”

Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.

Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails ” has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty”.

In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail.

Why Bail?

Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail, such that an analysis of these fundamental objects and change therein may reveal a change. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings.

Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:-

Article 9- No one shall be subjected to arbitrary arrest, detention or exile.

Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11(1) – Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention.

MEANING OF BAIL IN INDIA

According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: ” Bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense”. That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond.

In Maneka Gandhi v. Union of India [1978] 2 SCR 621

The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.

It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action.

J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases.

 

RIGHT TO BAIL AND ARTICLE 21′S RIGHT TO PERSONAL LIBERTY

The right to bail is concomitant of the accusatorial system, which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and the right to speedy reduce to vanishing point the classification of offences into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court.

The fact that under trials formed 80 percent of Bihar’s prison population, their period of imprisonment ranging from a few months to ten years; some cases wherein the period of imprisonment of the under trials exceeded the period of imprisonment prescribed for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360

Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the under trials, remanded by them to prison. The Court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison.

The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar (1982) 2 SCC 583. The court recognized the inequitable operation of the law and condemned it- “The rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of status quo… but it exist also for the poor and the downtrodden… and it is solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to under trials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality.

RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID -: ARTICLES 21 AND 22 READ WITH ARTICLE 39A

Article 21 of the Constitution is said to enshrine the most important human rights in criminal jurisprudence. The Supreme Court had for almost 27 years after the enactment of the Constitution taken the view that this Article merely embodied a facet of the Dicey on concept of the rule of law that no one can deprived of his life and personal liberty by the executive action unsupported by law. If there was a law which provided some sort of procedure, it was enough to deprive a person of his life and personal liberty.

In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice, but according to the interpretation placed on this provision by the Supreme Court Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227. in this provision does not carry with it the right to be provided the services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a mandate that the state shall provide free legal service by suitable legislations or schemes or any other way, to ensure that opportunities for justice are not denied to any citizen by reason of economic or other disabilities – this however remains a Directive Principle of State Policy which while laying down an obligation on the State does not lay down an obligation enforceable in Court of law and does not confer a constitutional right on the accused to secure free legal assistance.

However the Supreme Court filled up this constitutional gap through creative judicial interpretation of Article 21 following Maneka Gandhi’s case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548 and Hussainara Khatoon’s case that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore go through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the court process should have legal services made available to him.

The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.

Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that 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.”

 

Conclusion

It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice.

In Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, the Supreme Court held that ‘fairness’ under Article 21 is impaired where procedural law does not provide ‘speedy trial’ of accused; does not provide for his ‘pre-trial release’ on bail on his personal bond, when he is indigent and there is no substantial risk of his absconding; if an ‘under-trial prisoner’ is kept in jail for a period longer than the maximum term of imprisonment which could have been awarded on his conviction and if he is not offered ‘free legal aid’, where he is too poor to engage a lawyer, provided the lawyer engaged by the State is not objected to by the accused. Where the petitioner succeeds in establishing his case, the Court would grant him any relief which is necessary to afford proper justice, or to prevent manifest injustice regardless of technicalities such as to issue directions to the Government and other appropriate authorities, as may be necessary, to secure to a prisoner his constitutional rights.

The Supreme Court, further, held that the state cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to improving speedy trial.

The law must continue to allow for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of criminal justice system and to sensitize the same to the needs of those who must otherwise be condemned to languish in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail matters or to furnish the bail amount itself.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The mere so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases.

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