Government To Bear Expenses for Prisoners’ Right to Free Legal Aid and Legal Representation
Under Article 39A, eligible under-trial prisoners suffering in jails across India may receive free legal aid. Free Legal aid, which includes legal advice, education and representation, ensures equal access to justice for all regardless of financial weakness, social backwardness or any disadvantage of circumstances.
The duty imposed on the state by Article 39A is supplemented by the existence of Legal Services Authority Act,1987 which states that people in custody are entitled to legal aid services dispensed by National Legal Services Authority along with its state and district counterparts. A prisoner can qualify for legal aid at the pre-litigation stage as well at any stage of appeal.
This government endeavour is also supported by various independent NGOs working tirelessly to bridge the gap between the justice machinery and the underprivileged. The Supreme Court has also reiterated that the right to legal representation at the expense of the state is available for prisoners under the purview of Article 21 which guarantees Right to Liberty and Article 14 which guarantees Right to Equality.
Lack of Adequate Legal Representation leads to Unjust Imprisonment
But the reality differs greatly from the ideal as, despite the existence of this onus on the State, the implementation of it is found severely lacking.
Under-trial prisoners find themselves in a precarious condition like lack of legal representation means unjust imprisonment. The jails are overcrowded by people arrested for minor offences unable to access legal aid due to lack of money or awareness. They have to rot away in jails beyond the maximum sentence for their offence despite the law. The justice machinery meant for the welfare of the society ends up being unwarranted shackles at the feet of innocents.
NALSA and the State machinery have been instructed to coordinately set up under-trial review committee since no person is to be detained beyond one-half of the maximum period of imprisonment possible for a particular offence while under trial. NALSA regulations dictate the setting up of legal aid clinics in every prison all over India accompanied by regular visits by lawyers to ensure widespread outreach of their services.
[ Suggested Read: Concept of Legal Aid in India ]
Increase Legal Aid Advocates and Equip them with Mentoring Support and Guidance
However, this system is riddled with deficiencies such as a limited number of lawyers willing to assist for free as opposed to the huge amount of pending cases. The odds are as bad as one lawyer being available for more than 18000 prisoners. Although legal aid clinics have been set up in most of the jails, their effective and successful functioning is another matter altogether. There are instances of delay in assignment of a lawyer to an applicant and on an average, it takes 11 days but more than 20% cases took more, some even took a month.
Even after assignment, there is no guarantee of immediate action. At times, the prisoner is assigned a negligent lawyer. There is no guarantee that a competent and experienced lawyer equipped to handle the case is employed. The Legal Services Institutes have constituted committees for reviewing and monitoring the quality but that has proven to be no easy task as there is no complaint mechanism. Inquiries have revealed that on paper legal aid personnel have been appointed in almost all the states, but they have failed to increased access on the grass-root levels, accompanied by an underwhelming number of prison visits by lawyers. Furthermore, it has been brought to light that even though the machinery is well funded, there are instances of disappointing performance by authorities and unspent fund money.
[ Suggested Read: Right to Legal Aid and Access to Justice ]
Conduct Paralegal Training and Awareness Campaigns for Under-trial Prisoner’s Rights to Free Legal Aid
NALSA in 2017 created a special program for the under-trial prisoners under which it digitized all the data on prisoners in jails to identify those without legal representation and Legal aid clinics in those jails were revamped to effectively provide services to prisoners. It has succeeded by providing assistance to more than 4 lakh prisoners until early 2019.
NALSA has made attempts to fill up the shortage of legal aid personnel by training more than 67 thousand paralegals in a year. The numerous awareness campaigns launched across the country have been crucial for prisoners, especially women prisoners. Delhi SLSA has especially commended for its Clinics and campaigns.
[ Suggested Read: Online Legal Help Desk to get free legal advice and solutions ]
Recommendations to Improve Legal Aid Services for Under-trial Prisoners’ in India
- The number of legal aid providers needs to be increased along with training programs.
- A lawyer can be appointed for police stations to reduce unnecessary arrests and facilitate rightful bail.
- Legal aid lawyers must meet mandatory meet their clients in prison without delay.
- Assignment of lawyers needs to be quicker
- Law students can be attached to the lawyers to assist with the case and train them.
By Ayushi Singh, LLB( Hons.) 1st year,
Dr.Ram Manohar Lohia National Law University, Lucknow.
