Project on
CASE COMMENT ON
(Hussainara Khatoon.v. Secretary Home Dept., State of Bihar)
Submitted to
Professor Harish Chandra Padhi
COURSE- BBA-LLB
BATCH- 2018-2023
Submitted By
Kushagra Amrit
Roll no. 1882053
Section – BBA.LLB (A)
Hussainara Khatoon V. Secretary Home Dept., State of
Bihar
BENCH: BHAGWATI, P.N.DESAI, D.A.
AIR 1979 SC 1377
JUDGEMENT:-
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.
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
PRINCIPLES OF THIS CASE:-
In a famous case of Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1369), Supreme Court
passed the landmark judgment regarding free legal aid. In this case the court judgement
basically focusses on 3 main things which is follow: -
1.Article 21 in The Constitution Of India 1949(the Constitution of India)
2.Article 39(a) in (The Constitution Of India 1949)
3.Article 14 (The constitution of India 1949)
Explanation: -
1. Article 21 is “Protection of life and personal liberty No person shall be deprived of his
life or personal liberty except according to procedure established by law” The object of the
fundamental right under Article 21 is to prevent encroachment upon personal liberty and
deprivation of life except according to procedure established by law. It clearly means that
this fundamental right has been provided against state only. So, from the previous page
judgement it mention 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.
2. Article 39(A) “that the citizens, men and women equally, have the right to an
adequate means to livelihood”. Free Legal aid (Article 39A of the Constitution) is providing
assistance to the people who are unable to afford legal representation and access to the
court system. It guarantees to provide equal access to the justice system to persons who are
not in financial sound condition, by providing legal and professional assistance free of cost
or at lower fees. So, “Legal Aid means providing an arrangement in the society so that the
mission of administration of justice becomes easily accessible and is not out of reach of
those who have to resort to it for enforcement… the poor and illiterate should be able to
approach the courts, and their ignorance and poverty should not be an impediment in the
way of their obtaining justice from the courts. Legal aid should be available to the poor and
illiterate, who don’t have access to courts. One need not be a litigant to seek aid by means
of legal aid.”
3. Article 14 Equality before law The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth. So, here in this case
it clearly infringing the right of the person who is arrested there is a discrimination on
ground of this particular case.
CASE ANALYSIS: -
The Court commented on the property based nature of the bail system in case of Hussainara
Khatoon and stated that is is based upon the erroneous assumption that the risk of
monetary loss in the only deterrent against fleeing from justice. The Court highlighted that
even where an person to be placed under financial obligation to appear in the Court through
the execution of a bond to the effect. Moreover the Courts mechanically insists that the
accused person should produce sureties must again establish their solvency to be able to
pay the amount of bail in case such accused fails to appear to answer the charge.
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.
