LEGAL AID & PRISONERS – JUSTICE DELAYED OR JUSTICE DENIED?
This article is written by Kanishk Tiwari, a second-year law student at National Law University Nagpur
Legal Aid as a term in general refers to the legal assistance provided free of costs to those who are unable to afford it due to reasons which broadly include them being from a downtrodden section of the society or being financially weak. Our constitution which embodies the principles of Justice, Equity, and Good Conscience ensures through the institutions that rights guaranteed by it are taken care of and strictly enforced.
Article 39A of the constitution ensures that the legal system operates in a way that promotes justice on an equal footing, and to make it mandatory, in particular, to provide free legal aid through appropriate legislation or schemes or in any other way to ensure that no citizen's access to justice is denied due to economic or other disabilities. Although the Article falls within the purview of DPSP’s which are not enforceable in a court of law, separate legislation i.e., the Legal Service Authority Act, 1987 specifically for the purpose of enforcing Article 39A has been made.
There exist several provisions including specific legislatures to ensure that access to legal aid is available to all but still, there is a widely held notion that the legal aid provided to prisoners has been insufficient and due to lacunas in providing the same, many innocent accused are ailing in the jails across the country.
This Article, keeping in mind the rights of the citizens and access to justice, aims at critically analyzing the present state of prisoners and their right to access legal aid. The article through a doctrinal method as well as empirical data which the author has collected while interning at District Legal Service Authority (“DLSA”), Bhopal and working as a judicial intern, tries to ascertain the cause behind delays and lacunas in providing justice and legal aid services to the citizens and concludes by providing suggestions for improving the efficiency of justice delivery administration based upon the subjective observations.
Historical Development of Jurisprudence on Legal Aid Services
In India, the legal system which is being followed has been adopted from the common law. Globally, Legal aid movements were spreading across Europe in the 19th century with the demand of “Right to counsel” and “Right to fair trial” to the poor and needy people. Back in 1944 Lord Chancellor, Viscount Simon appointed Rushcliffe. Committee to make recommendations and enquire about facilities existing in England and Wales for giving legal advice to the poor.
In India, Article 39A provides free legal aid to the poor and weaker sections of society and ensures justice for all. Articles 14 and 22(1) of the Constitution also make it obligatory for the State to ensure equality before the law and a legal system that promotes justice based on equal opportunity for all while the free legal aid has been recognized as being part of Article 21 in the case of D.K. Basu vs. State of West Bengal.
It is a known fact that has been established from various cases by the Supreme Court that Fundamental Rights enjoy precedence over the DPSP’s. However, a balance must be maintained between the FR’s and DPSP’s as has been observed by the court in the case of Minerva Mills v. Union of India.
While maintaining a balance between DPSP’s and FR’s w.r.t the legal aid provisions as provided and imbibed within Article 14, Article 21, Article 22(1), and Article 39A of the Indian Constitution, a committee for legal aid under the chairmanship of Justice Krishna Iyer was Formulated in October 1972.
The report mentioned that it is a democratic obligation of the state towards it’s subject to ensure that the legal system becomes an effective tool in helping secure the end of social justice. Justice Krishna Iyer also coined the term “Juridicare” to cover all legal aid schemes. It also pointed out the colonial hangover of India's legal system which has frustrated it from realizing its true potential.
In continuation, another committee after which finally the LSA was formed was in 1980, under the Chairmanship of Justice P.N Bhagwati to guide and oversee legal aid programs throughout the Nation. The committee through its recommendations played a crucial role in introducing reforms such as National Lok Adalats to support legal aid throughout the country. The legal aid schemes introduced by the committee were finally given statutory validity by the Legal Services Authority Act ("LSA Act, 1987”) which was introduced in 1987 and came into force on the 9th of November 1995.
Although this act was introduced to ensure Free Legal Aid services to the needy, the purpose was not fulfilled which we are going to further deliberate upon by scrutinizing the provisions of this act and their implementation.
Prevailing Condition of Prisoners
The LSA Act, 1987 in accordance with Article 39A of constitution provides for various provisions which are made for the benefit of the weaker sections of the society. Section 12 & 13 of the Act state on who all are entitled to free Legal Aid Services. Around 80% of Indians are Entitled to legal aid.
Broadly speaking Sec. 12 provides legal aid to the following class of people –
1. Member of Scheduled Caste or Scheduled Tribe;
2. Victim of trafficking in human beings or beggar;
3. A woman, child or disabled.
4. A person victim of any natural or man-made calamity.
5. A person in Custody including judicial and police.
6. A General category person if income is less than the amount prescribed in the Act or by notification of central or state government.
Keeping aside these provisions, when we look at the actual data of prisoners lodged in jails with specific reference to under trials, the situation speaks for itself on how effective legal aid is not adequately being provided.
As per NCRB’s prison statistics 2020 –
· Number of Undertrial Prisoners – 3,71,848
· Total prisoners – 4,88,511
We can see from this above data that the “undertrial” prisoners languishing in the jails across the country surpasses the actual convicts serving their sentences. Overall, the Jails in the country is having an occupancy of 118 %. Among the states, Uttar Pradesh, Bihar, and Madhya Pradesh hold the top 3 positions respectively in terms of undertrials being lodged in the jails. The undertrial prisoners also include a vast majority of weaker section of the society being lodged in the jails. There are 1,427 women with their 1,628 children languishing in jail, the population also include people from Dalit and marginal section of the society as of 31st December 2020.
A 2018 study conducted by Commonwealth Human rights initiative “Hope behind bars” based on data received from 29 states and Union territories had found large discrepancies across states in legal aid to Undertrial Prisoners. The study had found that only 30% of the District (93 of 251 Districts) maintained registers in jail legal aid clinics.
Registers are crucial to record and Monitor requests made by inmates in the Clinics. The study had also found, the per capita spending on legal aid in India is just Rs 0.75(0.008 USD) while in developed countries it is 23 USD. The lawyers of legal aid are the human right defender. This spending on work done by the lawyers is more or less equivalent to them working Probono thus, many a time competent lawyers who aspire at earning money and not alone doing Probono work usually don’t bother indulging or enrolling themselves for working in Legal Aid Authorities. Hence, this Legal Aid Scheme has failed to attract competent lawyers and no Mechanism for the Client to question, thus, the quality of legal aid ultimately is compromised.
The question which strikes is what is stopping the administration from giving relief to such undertrials as per the doctrine followed in India “Not Guilty until proven otherwise”. Thus, we shall now further critically analyze this situation in context of Administrative Failure in implementing the legal aid while also considering coronavirus pandemic as one of the impediments.
The above-discussed information shows us how there exist a sorry of state affairs w.r.t providing the languishing undertrial prisoners with appropriate legal aid.
While the authors of this Article were interning at DLSA, there were some interesting findings of lacunae in the system of providing the Legal Aid for which the administration can be blamed. It was found that for legal Aid assistance in the Jails, specific request has to be made by the prisoners to the Jail Superintendent after which the request is forwarded to Legal Aid Authority. This procedure is done through the Postal Mail services which itself proves to be a hurdle as it usually takes a week or two for the request to be received by the Legal Service Authority and further take a few days for acting on the request. Thus, the prisoners are not able to avail Legal Aid within a reasonable time. This situation is creating a kind of paradox as the Act ensures legal aid within 3 days of request but certainly, it is taking more than 2 weeks, ultimately resulting in defeat of swift justice and breach of right under Article 39A of the constitution. The Supreme Court has also emphasized making a step toward digitization of order, decrees, application in the governmental authorities including Jails for a seamless justice delivery system.
Besides the procedural aspect, the lawyers provided compared to the prisoners who require legal aid are comparatively less in numbers. As per the regulations act of Legal Service Authorities, a panel of advocates are appointed in the DLSA’s which are only 90 per district compared to the vast number of undertrials and general prisoners who are in need of legal aid and this situation cannot in any sense be reasonably justified. The number of lawyers to be appointed in panel is decided by the administration itself, adding to this, the low wages and spending on legal aid as discussed above works as a catalyst that even the 90 lawyers who are appointed does not usually be much work-holistic due to lesser earning prospects.
Based upon the analyses we can infer some recommendations which if implemented practically can very well, not completely solve the situation prevalent but at least improve it to some extent which is better than the current state of conditions of prisoners.
To solve and make legal aid the same as envisaged while making it, legal services authority should work upon the Following key Recommendation-
Increase the spending on Legal Aid to provide better earnings prospects for Advocates on par with market rate. Otherwise, Legal Aid for the poor will remain Poor Aid.
The format in which supervision of the work of empanelled advocates is done shall be standardized in such a manner as to improve overall efficiency of justice delivery system.
The number of empanelled advocates recruited shall be scientifically done on the basis of current prison population.
The Digitization of Applications regarding Legal Aid and other essentials shall be mooted for.
Article 22 of the constitution provides the Right to lawyers for an arrestee but there is no scheme to provide legal aid at the police station. Hence, Direct legal aid at Police stations should be provided.
We have through this Article so far discussed how the LSA, 1987 was made in consonance with constitutional values provided under Article 39A of the constitution for giving legal aid benefits to the lower and deserving strata of the society, which can so far be inferred from the analyses that it has failed to completely achieve its objective through various lacunae including administrative machinery failure to implement the law in its full spirit and the suffering of the victims have only aggravated during this period of Coronavirus Pandemic due to the overcapacity of prisons and a life threat with a possibility of being infected on which even Supreme Court has given remarks on providing swift justice and reliefs to the Undertrial Prisoners.
However, there always exist light in the darkest of space and therefore, we have a huge possibility with practical solutions to implement the laws made for providing legal aid to the lower strata in its full spirit and fulfil the intent of our constitution-makers to ensure Justice, Equity and Fraternity to all Indian Citizens without any exceptions.
 Madhya Pradesh State Legal Services Authority Regulations, 1997, Rule 16.1.