BANGALORE - India's legal aid authority has launched a nationwide scheme to free poor people in pre-trial detention, who make up 76 per cent of the country's prison population. Known as undertrial prisoners, they are those accused of crime who are awaiting trial.
The National Legal Services Authority (Nalsa) will now appoint paid public defenders in every district to help undertrials get bail. The move is aimed at extending justice to the poor and also unclogging overcrowded prisons.
Of some 489,000 prisoners in 1,378 prisons in India, about 372,000 have been in jail for years awaiting trial even for petty crimes, because they cannot afford bail money or do not have access to legal assistance.
Around 68 per cent of all undertrial prisoners were illiterate or school dropouts, according to crime records from 2020.
India provides legal aid, free of cost, to marginalised groups for both civil and criminal cases, in the form of representation in court or simply legal advice and assistance. Eligible beneficiaries may ask for legal aid in cases before trial courts, High Courts or the Supreme Court.
There are currently 676 district legal service authorities in India that process requests from prison inmates and assign a legal counsel from a panel of eligible lawyers. The government pays them a small honorarium.
But a 2022 report by a parliamentary standing committee on law and justice said the number of people actually receiving legal aid was a "miniscule percentage of those entitled".
"A majority of Indian undertrials are poor, but the reality is that they go to any extent possible to avoid free legal aid. They'll get into debt, borrow money, or sell assets to pay a lawyer but do not want the government's legal aid," said Dr Anup Surendranath, who teaches constitutional law at the National Law University, Delhi, and heads Project 39A, the university's criminal justice programme that provides pro bono legal aid to undertrial prisoners in Pune and Nagpur central prisons.
From 2016 to 2019, Dr Surendranath found that only 7.91 per cent of the undertrial prisoners across India utilised the legal aid services they were entitled to.
Rather than lack of awareness, the under-utilisation was more due to "the massive crisis of confidence in the legal aid system", said Dr Surendranath, with most prisoners believing that legal representation from the government would be ineffective or unreliable.
A Nalsa 2022 report observed that since "panel lawyers also have private practices… their accessibility and availability remain an issue for timely client consultation and updating the legal aid seekers about the progress of their cases".
Lawyers were also found to harass their clients or demand fees from them, the report noted.
Under India's new Legal Aid Defence Counsel System similar to those in Mexico, the Philippines, South Africa among other countries, public defenders will be engaged full time and deal exclusively with legal aid work in criminal matters in their respective districts.
Per-case honorariums will be increased, and Nalsa will organise half-yearly performance reviews.
Nalsa member secretary Ashok Jain said the new system was started in 2019 on a pilot basis in 13 districts, "out of which at 11 places it was highly successful".
Dr Surendranath welcomed the redesign, but said a strong and meaningful legal aid delivery system needed more than lawyers: "For fair trials, it's integral to have a cadre of social workers specialised in criminal justice to regularly liaise with the undertrial prisoners and their families while building a case for bail."
Many in the judiciary have long battled for undertrials to be released, and the Indian government under Prime Minister Narendra Modi has launched campaigns to release such prisoners to mark the country's 75th year of independence.
