HUSSAINARA KHATOON & Ors. v. HOME SECRETARY, STATE OF BIHAR, PATNA

truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accnsed of crime. Lawyers to prosecute are every where deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That gov ernment hires lawyers to prosecute and defendants who have the· money hire lawyers to defend are the strongest in dications of the widespread belief that lawyers in criminal courts are necessties, not luxuries. The right of one charged fundamentaJ with crime to counsel may not be deemed and essential to fair trials in some countries, but is in ours. From the very beginning, our state and national constitu tions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before in which every defendant stands equal impartial tribunals before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers with out a lawyer to assist him." The philosophy of free legal service as an essential element of fair procedure is also to be found in the following passage from the in Jon Richard Argersinger v. Raymond judgment of Douglas, J. Hamlin(') "The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by intelligent and educated layman has counsel· Even the small and sometimes no skill in the science of law, charged with crime, he is incapable, generally of determin ing for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence,. or evidence irr~Iec van! to the issue or otherwise inadmissible. He lacks both· the skill .and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against though he be not guilty, he faces the him. Without it, danger of conviction because he does not know how to estab lf that be true of men of i11tellige11ce, lish his innocence. (l) 407 U.S. 25~35 L. ed. cd 530 · t 535-36. • • f H. KHATOON v. HOME SECRETARY (Bhagwati, J.) 53 9 ) • how much more true is it of the ignorant and i/li1erate or those of feeble il!!e/lecl. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours. From the very beginning our state · and national constitu!ions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the' poor man charged with crime has to face his accusers ·without a lawyer to assist him. Both Powell and G;deon involved felonies. But rationale has releva·ncc to any criminal trial, where an accused is deprived of his liberty. x x x x x x The court should consider the probable sentence that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed . . . . . The court should consider the in div:dual factors peculiar to each case. These, of course would be the most difficult to anticipate. One relevant factor would be the competency of the individual defendent to pre •ent his own case. (emphasis added)" We may also refer to Article 39A the fundamental constitutional directive which reads as follows: "39A. Equal justice and free legal aid:-The State shall ,ecure that the operation of the legal system promotes justice, in particular, on a basis of equal opportunity, and shall, 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 disabilities. (emphasis added)" This Article also emphasises that free legal service is an inalienable clement of 'reasonable, fair and just' procedure for without it a per.on suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, clearly an essential ingredient of 'reasonable, fair and just, procedure for a person accnsed of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services ~n account of reasons such as poverty, indigen~e 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 ~ \ ' -( \ - • ' A B c D E F G H 540 ~lli'l<E.ME COURT REPORTS [1979] 3 S.C.R. A B c D E F G H needs of justice so required, provided of course the accused pcrs.)n does not object to the provision of such Ja"1yer. We would, therefore,. direct that on the next remand dates, when the under-trial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objec· tion is raised to such lawyer on behalf of such under-trial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment dated 12th February, 1979. The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today. There are also various unrkr-trial prisoners who have been in jail for periods exceeding one-half of the maximum punishment that could be awarded to them if convicted, for the offences with which they are charged. To take an example, Budhu Mahli, who is at item No. I in the list of undertrial prisoners in Ranchi Central Jail has been in jail since 21st November, 1972 for offences under Section 395 of the Indian Penal Code and Section 25 of the Indian Arms Act. The maximum punishment for the offence under Section 395 of the Indian Penal Code is 10 years while that for the offence under Section 25 of the Indian Arms Act is mnch less. Yet Budhu Mahli has been in jail as an under-trial prisoner for over six years. So also Jairam Manjhi, Samra Manjhi, Jugal Munda and Gulam Munda at Item Nos. 2 to 7 in the list of under-trial prisoners confined in Ranchi Central Jail have been in jail as under-trial prisoners from 21st February, 1974 that is, for a period of over five years for the offence under Section 395 of the Indian Penal Code which is punishable with a maximum term of impri sonment of ten years. 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 langnish 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 ulti mately 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 whlch keeps them in jail for so many years for offenoes which they did not commit? It is, therefore, absolutely essential that persons accused of offunces f • - • H. KHATOON v. HOME SECRETARY (Bhagwati, !.) 541 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. Since there are several under trial prisoners who have been in jail for periods longer than half the maximum term of imprisonment for which they could if convicted, be sentenced, we would direct that on the next remand dates when they are produced before the Magistrates or the Sessions Courts, the State Government should prov:de them a lawyer at its own cost for the purpose of making an application for bail and opposing remand provided that no objection is raised to such lawyer on their behalf and if any application for bail is made, the Magistrates or the Sessions Courts, as the case may be should dispose of the same in accordance with the broad guidelines indicated by us in our judgment dated 12th February, 1979. The State Government will comply with this direc tion as far as possible within a period of six weeks from today and submit report of compliance to th'-. High Court of Patna. We may also take this opportunity of impressing upon the Gov ernment of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man. Today, unfortu nately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them. 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 Jaw is regarded by them as something mysterious and forbidding-always taking something away from them and not as a positive and ~onstruc­ tive social device for changing the socio economic order and impnving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker It is, therefore, necessary that we 'hould sections of the community. inject equal justice into legality and that can be done only by dyna, nic and activist scheme of legal services. We may remind the Govern ment of the famous words of Mr. Justice Brennan "Nothing rankles more in the human heart than a brood ing sense of injustice. Illness we can put up with. But in justice 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 ~emocracy is not imaginary but very real, because B c D E F G H I • -( \ I • 542 SUPREME COURf REPORTS [ l979] 3 s.c.R . democracy's very Efe depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness." i And also recall what was said by Leeman Abbot years ago in rela tion to affluent America. B c D E F G H "If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the courtroom, the seeds of revolution will be sown, the fire-brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which wilt follow." 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 lO life and liberty conferred by Article 21, but also the compulsion of the ~onsti­ tutional directive embodied in Article 39A. We find from the counter affidavit filed on behalf of the reiipon dents that no reasons have been given by the State Government as to why there has been such enormous delay in bringing the under-trial prisoners to trial. Speedy trial is, as held by us in our earlier judg ment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Article 21 and it is the eoasti tutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accu~ed on he 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 ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem v. Ma/elm(') : "The law does not permit any Government to deprive its citizens _of constitutional ri1thts on a plea of poverty". It is also interesting to notice wliat Justice, then Judge, Blackmum said in Jackson v. Bishop('): "Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considera- tions .... " (I) 377 F. Supp. 995 (2) 404 F. Supp. 2d. 571. • • H. KHATOON V. HOME SECRETARY (Bhagwati, J.) 543 So also in Holt v. Sarver('), affirmed in 442 F. Supp. 362, the Court, dealing with the obligation of the State to maintain a Peniten tiary System which did not violate the Eighth Amendment aptly and eloquently said l "Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed upon what Respon If Arkansas is dents may actually be able to accomplish. going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States." right of the accused The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inabi!tiy. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done It is also the constitutional obligatio!! of this Court as by the State. the guardian of the fundamental rights of the people, ·as a sentinel on the qui vive, to enforce the fundamental speedy trial by issuing the necessary directions to the State which taking of positive action, such as augmenting and may include strengthening the investigative machinery, setting up new courts, build· ing new court houses, providing more staff and equipment to courts, appointment of additional judges and other measures calculated to ensure speedy trial. We find that in fact the courts in the United States have adopted this dynamic and consructive role so far as the prison reform is concerned by utilising the activist magnitude of the Eighth Amendment. The courts have ordered substantial improve- ' • ments to be made in a variety of archaic prisons and jails through -( - decisions such as Hot v. Sarver (supra), Jones v. Wittenberg('), "- Newman v. Alabama(') and Gates v. Collier('). The Court in the that it "has the duty of fashioning a last mentioned case asserted decree that will require defendants to eliminate the conditions and practices at Parchman here-in-above found to be violative of the United State's constitution" and in discharge of this duty gave var\ons direc tions for improvement of the conditions of those confined in the State Penitentiary. The powers of this Court in protection of the Consti tutional rights are of the widest amplitude and we do not see why this [(I) 309 F. Supp. 362. (2) 330 F. Supp. 707, (3) 349 F. Supp. 278. (4) 349 F. Supp. 881. 15-253SCU79 ' ~ • A B c D E F G H 544 · SUPREME COURT REPORTS [1979] 3 s.c.R. Court should not adopt a similar activist approach and issue to the State . directions which may involve taking of positive action woth a view to securing enforcement of the fundamental right to speedy trial. But in order to enable the Court to discharge this constitutional obli gation, it is necessary that the Court should have the requisite infor !!lation bearing on the problem. We, therefore, direct the State: of Bihar to furnish to us within three weeks from today particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving yearwise br<eak up of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more than six months. We would appreciate if the High Court of Patna also furnishes the above particulars to us within three weeks from today since the High Court on its administrative side mus:t be having records from which these particulars can be easily gathered. We also direct the State of Bihar to furnish to us within three W<eeks from today particulars as to the number of cases where first informa tion report have been lodged and the cases are pending investigntion by the police in each sub-division of the State as on 31st December, 1978 and where such cases have been pending investigation for more than six months, the State of Bihar will furnish broadly the reasons why there has been such delay in the investigative process. The writ petition will now come up for hearing and final disposal on 4th April, 1979. We have already issued notice to the Supreme Court Bar Association to appear and make its submissions on the issue arising in the writ petition since they are of great importance. We hope and tru!t that the Supreme Court Bar Association will respond to the notice and appear to assist the Court at the hearing of the writ petition. B c D E F N.V.K. ' I ~ •