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Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar

This case highlights the lacunae in the nation’s legal and judicial systems. Even though the right to a speedy trial is a Fundamental Right as envisioned in our Constitution, the case highlights the grave


This case highlights the lacunae in the nation’s legal and judicial systems. Even though the right to a speedy trial is a Fundamental Right as envisioned in our Constitution, the case highlights the grave violation of that right, where undertrial prisoners were made to serve lengthy prison terms simply because the courts lacked the time and resources to either acquit them or give them their appropriate sentence. Even innocent people were kept in prison violating fundamental human rights[2].


A large number of women and minors were incarcerated for petty and trivial offences that would have resulted in a few months of incarceration, but they had been awaiting justice for years, and some of them were unaware of the basis for their detention. The state of Bihar was even ordered to file a revised chart that clearly shows the year-by-year breakdown of the under-trial prisoners after segregating them into two categories: those charged with minor offences and those charged with major offences; however, the state failed to comply with this directive. The petition claimed that people convicted of minor charges were being held in prison for five to ten years without a fair and reasonable trial. On January 11, 1979, Kapila Hingorani filed the petition, after considering these grounds. The petition was not valid in this case because it lacked power of attorney and was based on an article by Rustomji rather than an affidavit, and there was no client. The Registrar’s office objected since the writ petition was filed incorrectly, but due to Kapila Hingorani’s persistence, the case was heard by a three-judge panel consisting of P N Bhagwati, R S Pathak, and A D Koshal. The preliminary hearing was set for February 5, 1979, by a three-judge bench, and the State of Bihar was given the notice to take action. As the State failed to appear at the preliminary hearing on February 5, 1979, the court took the bold step of ordering the release of all under-trial prisoners mentioned in Rustomji’s Indian Express article on non-monetary bonds or personal sureties. The state appeared at the next hearing, on February 19, 1979, but did not contest the factual allegations made by Rustomji in his article, instead focused on publicising the government of Bihar’s methodical efforts to address the acknowledged problem of disproportionate pre-trial incarceration.


  • Whether the under-trial prisoners who have been detained longer than their punishment be released?
  • Whether the state should provide “legal aid” to financially disadvantaged under-trial prisoners?
  • Whether women be transferred to jails for “protective custody”?
  • Does Article 21’s right to life and personal liberty include the right to a speedy trial?

Contentions from both sides

Argument by petitioners

The petition claimed that the petitioners were under-trial detainees who have not gone through a fair trial. Even though their offences were minor and may have only led to a few months in prison, they have been detained for years. Their extreme poverty kept them from ever being able to get out of prison like the rich, which added to their misery.

Argument by Respondent

Respondents contended that numerous prisoners awaiting trial, petitioners, in this case, held in the Patna Central Jail, the Muzaffarpur Central Jail, and the Ranchi Central Jail regularly appeared before the Magistrates before their release and were subsequently repeatedly remanded to judicial custody by the Magistrates. The respondents were unable to prove the dates on which these under-trial detainees were remanded, hence the Court did not believe this averment to be true. The Respondents further asserted that the rise in the number of pending cases is a result of the necessity of stopping investigations in the majority of instances because of a delay in collecting expert opinions. On the other hand, the Court rejected this argument, saying that the state can utilize other methods to achieve the same end.


Article 21[3]

Although the right to a speedy trial is not expressly mentioned in the list of fundamental rights in Article 21 of the Indian Constitution, it is covered by the broad range of Article 21 of the Indian Constitution.  According to Article 21 of the Indian Constitution, a speedy trial is one that is finished as soon as is practical. According to Article 21, no one’s life or liberty can be taken away unless it is done so in accordance with the law.  To take away someone’s freedom in a way that is not reasonable, fair, or equitable is a violation of article 21 of the Indian Constitution.

Article 39 A[4]

Article 39A of the Indian Constitution guarantees equal justice and free legal aid. Additionally, it guarantees justice for all based on equal opportunity and provides free legal aid to the underprivileged and weaker segments of society. In particular, it shall provide free legal aid through appropriate legislation or programs, or in any other manner, to ensure that no citizen’s right to justice is denied due to economic or other disabilities.


The Court ordered the release of all under-trial prisoners whose names appeared on Mrs Hingorani’s list. The Court went on to say that detaining them for any length of time would be unconstitutional and certainly violate their fundamental right under Article 21[5] because they are being held for a period of time that is far longer than what they could have received if they had been tried and convicted. The Hon’ble Court further directed the State to offer free legal assistance to under-trial convicts accused of bailable offences on their next remand dates before the Magistrates. This was done so that even the poorest under-trial detainees may file a bail application, ensuring that the aim of a speedy trial was met. The Supreme Court further ordered the State Government and the High Court to provide information about the locations of the courts of magistrates and courts of sessions in Bihar, as well as the total number of cases outstanding in each court as of December 31, 1978. If a matter has been outstanding for more than six months, they must also explain the reason which led to the delay in the disposal of the case.

Case laws

Maneka Gandhi v. Union of India[6]

In this case, the court determined that any procedure that keeps a large part of the population incarcerated for an extended period of time without a fair trial cannot be deemed “reasonable, fair, and just.” Human rights and basic liberties are considered to include expedited trials and freedom from imprisonment. The case mentioned that the right to a speedy trial is a fundamental and basic freedom.

Khatri (II) v. the State of Bihar[7]

This was the first time in Indian law that the issue of the right to legal aid was discussed in depth. In this case, the Court held that the state is required under the Constitution to offer free legal assistance to an accused person. This obligation of the state is not limited to the stage of the trial but also includes the stages when the prisoner is first brought before the magistrate or when he is remanded.

A.K. Gopalan v. State of Madras[8]

The relationship between articles 19[9] and 21[10] and the rights of prisoners was examined by the Hon’ble Supreme Court of India in this case. The Court related Article 21[11] to the United States Constitution’s Fourth and Fourteenth Amendments. Article 21[12] mentions the word ‘liberty,’ which has a ‘personal’ prefix. All rights that collectively comprise men’s personal liberties, except for those already covered by Article 19(1)[13], are referred to in Article 21[14] as “personal” liberties.

Analysis and Conclusion

The right to a speedy trial is a fundamental right in countries such as Canada, the United States, Europe, and Japan. A person who has been arrested or detained has the right to a trial within a reasonable time, according to Article 3 of the European Convention on Human Rights. As a result, the court held that “a speedy trial is essential to criminal justice, and there can be no doubt that a delay in trial alone constitutes a denial of justice.” In the case of Rehm v. Malcolm,[15] the court said that ‘The State cannot deny the accused the constitutional right to a speedy trial by citing financial or administrative incompetence’. [16]After this writ, a speedy trial became a fundamental right under article 21[17]. The court also believed that the Indian bail system at the time was prejudiced against the poor, who could not always afford to hire a lawyer to represent them, and recommended a significant adjustment. A system that denies the poor the right to legal representation cannot be deemed just or equitable.

Author(s) Name: Mridula Shanker (Symbiosis Law School, Pune)


[1] Hussainara Khatoon & Ors. V. Home Secretary, State of Bihar 1979, AIR 1369

[2] Zara Suhail Ahmed, ‘Hussainara Khatoon v State of Bihar – Case Analysis’ (Law Corner, 16 December 2021) <,The%20Ruling%20of%20the%20Apex%20Court%20in%2.0Hussainara%20Khatoon%20v,21%20of%20the%20Indian%20Constitution> accessed 11 August 2022

[3] Constitution of India, 1950, art 21.

[4] Constitution of India, 1950, art 39 A

[5] Constitution of India, 1950, art 21

[6] Maneka Gandhi v. Union of India 1978, AIR 597.

[7]  Khatri (II) v. State of Bihar 1981, SCC (1) 627.

[8] A.K. Gopalan v. State of Madras 1950, AIR 27.

[9] Constitution of India, 1950, art 19

[10] Constitution of India, 1950, art 21

[11] Ibid

[12] Ibid

[13] Constitution of India, 1950, art 19 (1)

[14] Constitution of India, 1950, art 21

[15] Rehm v. Malcolm 1977, 440 F. Supp. 51

[16] V Nivetha, ‘Case Analysis: Hussainara Khatoon & Ors vs. Home Secretary, State of Bihar’ (EjusticeIndia, 23 June 2021) <> accessed 11 August 2022

[17] Constitution of India, 1950, art 21