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PETITIONER: HUSSAINARA KHATOON & ORS.

       Vs.

RESPONDENT: HOME SECRETARY, STATE OF BIHAR, PATNA

DATE OF JUDGMENT09/03/1979

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. DESAI, D.A.

CITATION:  1979 AIR 1369            1979 SCR  (3) 532  1980 SCC  (1)  98  CITATOR INFO :  R          1981 SC 928  (4)  D          1982 SC 710  (92)  R          1983 SC 361  ((2)19)  RF         1983 SC 465  (5,17)  R          1983 SC 624  (10)  R          1986 SC 180  (39)  R          1986 SC 991  (5)  RF         1992 SC1701  (29)

ACT:      Administration  of   Justice-Speedy   trial-Fundamental right of accused-Constitutional obligation of State.      Constitution of  India 1950-Arts. 21 and 39A-Free legal services to  poor essential  element of ’reasonable fiar and just’,procedure.

HEADNOTE:      At the  resumed hearing  of the petition for release of under-trials in the State of Bihar. ^      HELD: (1)  The procedure  under which  a person  may be deprived of  his life  or liberty should be ’reasonable fair and just.’  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. [537 C, D]      Meneka Gandhi v. Union of India, [1978] 1 SCC 248; M.H. Hoskot v.  State of Maharashtra, [1978] 3 SCC 544; Gideon v. Wainwright, 372  US 335;  9 L.  ed.  at  799;  John  Richard Argersinger v. Raymond Hamlin, 407 U.S. 25: 35 L. ed. 2d 530 at 535-36; referred to      (2) Article 39A also emphasises 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 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

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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. [539 F-540 A]      (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. [541 E-F] 533      4. The  urgent necessity  of introducing  a dpnamic 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 and right to  life and liberty conferred by Art. 21 but also the compulsion of  the constitutional directive embodies in Art. 39A. [542 D]      5. The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or  administrative   inability.  The   State  is   under   a constitutional mandate  to ensure  speedy trial and whatever is necessary  for this  purpose has to be done by the State. It is  also the  constitutional obligation of this Court, as the guardian  of the  fundamental rights  of the people as a sentinel on  the qui-vive,  to enforce the fundamental right of the  accused to  speedy trial  by issuing  the  necessary directions to the State which may include taking of positive action,   such   as   augmenting   and   strengthening   the investigative machinery, setting up new courts, building new court houses,  appointment of  additional judges  and  other measures calculated to ensure speedy trial. [543 D-E]      (6) The  courts in  the United  States have  adopted  a dynamic and  constructive role in regard to prison reform by utilising the  activist magnitude  of the  Eighth Amendment. The courts  have ordered substantial improvements to be made in a  variety of  archaic  prisons  and  jails  through  its decisions. [543 F]      Rhem v.  Malclm, 377  F. Supp.  995, Jackson v. Bishop, 404 F.  Supp. 2d.  571, Holl  v. Sarver,  309 F.  Supp. 362; Jones v.  Wittenberg, 330  F. Supp.  707; Newman v. Alabama, 349 F.  Supp. 278;  Gates v.  Collier, 349  F.  Suppl.  881; referred to.      (7) The  powers of  this Court  in  protection  of  the Constitutional rights  are of  the widest amplitude and this Court should  adopt an  activist approach  and issue  to the State, directions  which  may  involve  taking  of  positive action  with   a  view   to  securing   enforcement  of  the fundamental right  to speedy  trial. But  in order to enable the court to discharge this constitutional obligation, it is necessary  that   the  court   should  have   the  requisite information bearing on the problem. [543 H-544 A]      Directed that:      (a) On  the next remand dates when the under-trials are produced before  the Magistrates  or the Sessions Courts the State Government  should provide  them a  lawyer at  its own

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cost for  the purpose  of making an application for bail and opposing remand provided that no objection is raised to such a lawyer on their behalf. [540 B]      (b) The  State Government  and High  Court  to  furnish 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 year-wise  break 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. [544 D]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 57 of 1979.      K. Hingorani for the Petitioners.      U. P. Singh for the Respondent. 534      The Order of the Court was delivered by      BHAGWATI, J.-This  writ petition  again  comes  up  for hearing before  us pursuant to the directions given by us on 26th February,  1979(1) and  today three additional counter- affidavits have been filed on behalf of the respondents: one by  Mrinmaya   Choudhri,  Assistant   Inspector  General  of Prisons:   the    other   by    Bageshwari   Prasad   Pande, Superintendent of  the Patna  Central Jail  and the third by Pradip Kumar  Ganguly,  Superintendent  of  the  Muzafferpur Central Jail.  Mrinmaya Choudhri  has in his affidavit given particulars of  the under-trial prisoners in 48 jails in the State of  Bihar  in  addition  to  the  particulars  of  the undertrial prisoners  in 17  jails already submitted on 26th February, 1979.  We directed the State of Bihar by our order dated 26th  February, 1979 to file a revised chart showing a year-wise break-up of the under-trial prisoners after making a division into two broad categories viz. minor offences and major offences  but this  direction has not yet been carried out by  the State  of Bihar. Mrinmaya Choudhri has, however, assured us in his affidavit that several steps regarding the different directions  given by  the Court are being promptly implemented but  due to  shortage of  time it  has not  been possible complete  the same  by 3rd  March, 1979.  We direct that the  State of  Bihar will  file within three weeks from to-day  a   revised  chart  in  regard  to  the  under-trial prisoners in  all the  65 jails  in  a  manner  which  would clearly show  year-wise as  to what  is the  date from which each of  them is  in jail after making a broad division into two categories  of minor offences and major offences. We are glad to note that so far as women under ’protective custody’ are concerned,  the State has assured us in the affidavit of Mrinmaya Choudhri  that  necessary  steps  for  transferring women  under   "protective  custody’   in   jails   to   the institutions run  by the  welfare department have been taken and directions  to that effect are issued by the Government. We hope  and trust  that this  direction given  by us in our earlier order  dated 26th February, 1979 will be carried out by Government  and compliance  report submitted to us within the prescribed time.      Though we  directed the  State of  Bihar by  our  order dated 26th  February, 1979  to intimate  to the  court by  a proper affidavit  to be  filed on  or before 3rd March, 1979 whether the  under-trial prisoners  whose  particulars  were given in  the counter-affidavit filed on 26th February, 1979 were  periodically   produced  before   the  Magistrates  in compliance with  the proviso to section 167(2), we find that

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the only  averment made  by Bageshwari  Prasad Pande  in his affidavit in  response to this direction is that petitioners Nos. 1,  2, 3, 4, 5, 6, 7, 8, 9 and 17 confined in the Patna Central Jail prior to their release were 535 regularly produced  before the  courts "as and when required by the  courts". This  averment does  not at  all constitute compliance with  the direction given by us. We would like to know from  the State  of Bihar  in a  proper affidavit to be filed within  two weeks  from today  whether the under-trial prisoners who  were directed  to be  released by us on their personal  bond   were  periodically   produced  before   the Magistrates in compliance with requirement of the proviso to section 167(2).  We would  suggest  that  the  State  should furnish to  this Court  the dates on which these under-trial prisoners were  remanded to  judicial custody  from time  to time by  the Magistrates,  so that  we can satisfy ourselves that the requirement of the proviso was complied with.      We also  find an  averment in  the affidavit of Pradeep Kumar Ganguly  that Petitioners  Nos. 10, 11, 12, 13, 15, 16 and 18  who were  previously  confined  in  the  Muzaffarpur Central Jail  prior to their release were regularly produced before the  Court "as and when required by the courts". This averment, as  we have  pointed out, is wholly unsatisfactory and it  does not  inform the Court as to what were the dates on which these under-trial prisoners were remanded from time to time  by the  Magistrates. It is only if these particulas are furnished  to us that we can satisfy ourselves in regard to compliance with the requirement of the proviso to section 167(2) and we would, therefore, direct the State of Bihar to furnish these  particulars to us in an affidavit to be filed within two weeks from today.      We should  also like  to have the particulars in regard to the  dates on  which remand orders were made from time to time by  the Magistrates  in regard to under-trial prisoners at items Nos. 4, 5, 6, 7, 8, 13, 21, 22, 24, 28, 29, 30, 43, 56, 69,  71, 72,  79, 85,  92, 96, 97, 101, 129, 133, 136 to 142, 165  to 167, 170 to 174, 177, 191, 199, 210, and 236 in the list  of under-trial  prisoners in  Ranchi Central  Jail submitted on  behalf of  the respondents.  These under-trial prisoners have  been in  jail for  a period  of over  six to seven years  and we would like to satisfy ourselves that the requirement of  the proviso  to section  167(2) was complied with in  their case.  The affidavit giving these particulars should be  filed by  the State Government within three weeks from today.  There are  quite a  larg number  of under-trial prisoners who  are languishing  in jail  for long periods of time and it is not possible for us to examine the individual cases of  these under  trial prisoners  for the  purpose  of satisfying  ourselves  in  regard  to  compliance  with  the proviso to  section 167(2),  but we  woudl request  the High Court of  Patna to  pick out  a few  names from the lists of under-trial prisoners which have been filed before us by the State of  Bihar on  26th February,  1979 and 5th March, 1979 and satisfy itself 536 whether these  under-trial prisoners  have been periodically remanded from time to time by the Magistrates as required by the proviso  to section 167(2). We would direct the State of Bihar to  furnish  copies  of  these  lists  of  under-trial prisoners to  the Chief  Justice of  the  Patna  High  Court within ten days from today.      We find  from the  lists of under-trial prisoners filed before us  on behalf  of the  State of Bihar that the under- trial prisoners  whose names  are set out in the chart filed

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by Mrs.  Hingorani to-day  have been  in  jail  for  periods longer than  the maximum term for which they could have been sentenced; if  convicted. This discloses a shocking state of affairs and  betrays complete  lack  of  concern  for  human values. It  exposes the callousness of our legal and judical system which  can remain unmoved by such enormous misery and suffering resulting  from totally unjustified deprivation of personal  liberty.   It  is   indeed  difficult  for  us  to understand how  the State  Government could  possibly remain oblivious to  the continued  incarceration of  these  under- trial prisoners  for years  without even  their trial having commenced. The  judiciary in  the State of Bihar also cannot escape its  share of  blame because  it could  not have been unware of  the fact  that thousands of under-trial prisoners are languishing  in jail awaiting trial which never seems to commence. We  fail to  see how  the continued  detention  of these under-trial  prisoners mentioned  in the  list of Mrs. Hingorani can  be justified  when we  find  that  they  have already been in jai for a period longer than what they would have been  sentenced to  suffer, if  convicted. They have in fact some  jail term  to their credit. We, therefore, direct that these under-trial prisoners whose names and particulars are given  in the  list filed  by Mrs.  Hingorani should  be released forthwith  as continuance  of  their  detention  is clearly illegal  and in  violation of their fundametal right under Article 21 of the Constitution.      Then there  are several  under-trial prisoners  who are charged with  offences which  are bailable but who are still in jail  presumably because no application for bail has been made on  their behalf  or being  too poor they are unable to furnish bail.  It is  not uncommon  to find that under-trial prisoners  who  are  produced  before  the  Magistrates  are unaware of  their right  to obtain  release on  bail and  on account of their poverty, they are unable to engage a lawyer who would  apprise them of their right to apply for bail and help them  to secure  release on  bail by  making  a  proper application to the Magistrate in  that behalf. Sometimes the Magistrates also  refuse to release the undertrial prisoners produced before  them on  their personal  bond but insist on monetary bail  with  sureties,  which  by  reason  of  their poverty 537 the under-trial  prisoners are  unable to furnish and which, therefore, effectively shuts out for them any possibility of release from  pretrial detention. This unfortunate situation cries  aloud   for   introduction   of   an   adequate   and comprehensive legal  service programme,  but so  far,  these cries do  not seem  to have  evoked any  response. We do not think it  is possible  to reach  the benefits  of the  legal process to  the poor,  to protect them against injustice and to secure  to them their constitutional and statutory rights unless there  is a  nation wide  legal service  programme to provide free legal services to them. It is now well settled, as a  result of  the decision of this Court in Maneka Gandhi v. Union  of India(1)  that when Article 21 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 unnder 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

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indegredient of  reasonable, fair  and just  procedure to  a prisonel who  is to  seek his liberation through the court’s process that he should have legal services available to him. This  Court  pointed  out  in  M.  H.  Hoskot  v.  State  of Maharashtra   (2).:"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 supporteve 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". Free  legal services  to the poor  and   the  needy   is  an  essential  element  of  any ’reasonable, fair  and just’  procedure. It is not necessary to quote authorative pronouncements by judges and jurists in support of  the view that without the service of a lawyer an accused person  would be  denied ’reasonable, fair and just’ procedure. Black, J., observed in Gidian v. Wainwright(3):           "Not only  those precedents  but also  reason  and      reffection  require   us  to   recognise  that  in  our      adversary system  of criminal justice, any person haled      into court,  who is too poor to hire a lawyer cannot be      assured a  fair trial  unless counsel  is provided  for      him. This seems to us to be an obvious 538      truth.  Governments,   both  State  and  Federal  quite      properly  spend   vast  sums   of  money  to  establish      machinery to  try defendants  accused 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  government      hires lawyers  to prosecute and defendants who have the      money  hire   lawyers  to   defend  are  the  strongest      indications of  the widespread  belief that  lawyers in      criminal courts are necessties, not luxuries. The right      of one  charged with crime to counsel may not be deemed      fundamental  and  essential  to  fair  trials  in  some      countries, but is in ours. From the very beginning, our      state and  national constitutions  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 idea cannot be realised if the poor      man charged with crime has to face his accusers without      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  judgment of  Douglas, J. in Jon Richard Argersinger v. Raymond Hamlin(1)           "The right  to be heard would be, in many cases of      little avail  if it  did not comprehend the right to be      heard by  counsel. Even  the intelligent  and  educated      layman has  small and sometimes no skill in the science      of  law,  if  charged  with  crime,  he  is  incapable,      generally  of   determining  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      irrelevant 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.

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    He requires  the guiding  hand of counsel at every step      in the  proceedings against  him. Without it, though he      be not  guilty,  he  faces  the  danger  of  conviction      because  he   does  not   know  how  to  establish  his      innocence. If that be true of men of intelligence, 539      how much more true is it of the ignorant and illiterate      or those of feeble intellect.           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 constitutions 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  Gideon  involved  felonies.  But      their rationale  has relevance  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  individual 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 present      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 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      disabilities. (emphasis added)"      This Article also emphasises 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  services  is, therefore, clearly  an essential  ingredient of ’reasonable, fair and  just, procedure for a person accused 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 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 540 needs of justice so required, provided of course the accused person does  not object  to the provision of such lawyer. 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 objection is  raised to such lawyer on behalf of such under- trial prisoners and if any application for bail is made, the

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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  under-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. 1 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 much less. Yet Budhu Mahli  has been in jail as an under-trial prisoner for over six  years. So  also Jairam Manjhi, Somra 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 imprisonment 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 undetrial 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 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 undertrial 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 provide 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  direction  as  far  as possible within  a period of six weeks from today and submit report of compliance to the High Court of Patna.      We may  also take  this opportunity  of impressing upon the Government  of India  as also the State Governments, the urgent necessity  of introducing a dynamic and comprehensive

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legal service  programme with  a view to reaching justice to the common  man. Today,  unfortunately, 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 contract 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  that we  should inject  equal  justice into legality  and that  can be  done only  by  dynamic  and activist  scheme  of  legal  services.  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 542      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."      And also recall what was said by Leeman Abbot years ago in relation to affluent America.           "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 will 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  to  life  and  liberty conferred by  Article 21,  but also  the compulsion  of  the constitutional directive embodied in Article 39A.      We find  from the  counter affidavit filed on behalf of the respondents that no reasons have been given by the State Goverment 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  judgment  dated  26th February, 1979, an essential ingredient of ’reasonable, fair and just’  procedure guaranteed  by Article 21 and it is the constitutional 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 accused 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.

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Malclm(1): "The  law  does  not  permit  any  Government  to deprive its  citizens of  constitutional rights on a plea of poverty". It  is also  interesting to  notice what  Justice, then Judge, Blackmum said in Jackson v. Bishop(2):           "Humane    considerations    and    constitutional      requirements are  not, in  this day,  to be measured by      dollar considerations...." 543      So also  in Holt v. Sarver(1), affirmed in 442 F. Supp. 362, the  Court, dealing with the obligation of the State to maintain a  Penitentiary System  which did  not violate  the Eighth Amendment aptly and eloquently said           "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  Respondents may actually be able      to accomplish.  If  Arkansas  is  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."      The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative   inabiltiy.    The   State    is   under   a constitutional mandate  to ensure  speedy trial and whatever is necessary  for this  purpose has to be done by the State. It is  also the  constitutional obligation  of this Court as the guardian  of the  fundamental rights of the people, as a sentinel on  the qui  vive, to enforce the fundamental right of the  accused to  speedy trial  by issuing  the  necessary directions to the State which may include taking of positive action,   such   as   augmenting   and   strengthening   the investigative machinery, setting up new courts, building new court houses,  providing more  staff and  equipment  to  the 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 improvements to be made in a  variety of archaic prisons and jails through decisions such as  Hot v.  Sarver  (supra),  Jones  v.  Wittenberg(2), Newman v.  Alabama(3) and  Gates v. Collier(4). The Court in the last  mentioned case  asserted that  it "has the duty of fashioning  a   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  various directions  for  improvement  of  the  conditions  of  those confined in the State Penitentiary. The powers of this Court in protection of the Constitutional rights are of the widest amplitude and we do not see why this 544 Court should not adopt a similar activist approach and issue to the State directions which may involve taking of positive action  with   a  view   to  securing   enforcement  of  the fundamental right  to speedy  trial. But  in order to enable the Court to discharge this constitutional obligation, it is necessary  that   the  Court   should  have   the  requisite information 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

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breakup 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 must be having records from which these particulars can be easily gathered. We also direct the  State of  Bihar to  furnish to  us within  three weeks from today particulars as to the number of cases where first information  report have been lodged and the cases are pending investigation  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  trust that the Supreme Court Bar Association will respond to the notice and appear to  assist the  Court at  the  hearing  of  the  writ petition. N.V.K. 545