Status of Legal Aid in Prisons - Swati

1. "Without equal access to the law, the system not only robs the poor
of their only protection, but it places it in the hands of their
oppressors the most powerful and ruthless weapon ever created.”
- Reginald Heber Smith, Justice and the Poor, 1919
STATUS OF LEGAL AID IN PRISONS

3. LEGAL AID LEGISLATION
• People in custody are entitled to free legal aid
• Legal aid includes
• legal advice, assistance and representation
• Legal education, information and awareness
• Other services through ADR (lok adalats in compoundable
cases etc)
• Legal aid available at all stages – since the first
time accused is produced before the court and at
all stages of trial including appeals.

4. NALSA GUIDELINES
• Secretary, DLSA to visit jails within the district regularly to
identify:
– UTs languishing in prisons for want of legal aid
– Any convicts who were juveniles at the time of arrest
– Any non-criminal mentally ill persons detained in prisons
– Care provided to children below six with their mothers
• Appropriate remedial action by way of legal aid to be
provided
• DLSA to organize lok adalats in compoundable matters in
prisons and observation homes
• Reports of matters settled in lok adalats to be sent to SLSA,
which is required to compile all information and share with
NALSA

5. JUDICIAL PRONOUNCEMENTS
• Duty of the Magistrate before whom the accused is
first produced to make him fully aware of his right to
consult and be defended by a legal practitioner
– Either of his choice (at his expense)
– Or from legal aid at the expense of the State.
• Any failure to fully discharge the duty would amount to
dereliction in duty and would make the concerned
magistrate liable to departmental proceedings.
• Failure to provide lawyer at the stage of the trial would
vitiate the trial
[Amir Kaseb Case]

6. JUDICIAL PRONOUNCEMENTS
• Member Secretary, NALSA to coordinate with SLSAs and MHA to
implement Section 436A of the CrPC, and set up an undertrial review
committee in every district.
• UTC to be composed of the district judge as Chairperson, the District
Magistrate, the District Superintendent of Police and the Secretary, DLSA
as members.
• SLSAs to urgently instruct the panel lawyers to take up cases of prisoners
unable to furnish bail as poverty cannot be a ground for incarcerating a
person.
• Member Secretary to take steps for compounding of cases where
possible. Where compounding not possible, steps must be taken to
expedite their disposal at the earliest.
• UTCs to be established in every district within one month and a meeting
to commence on or about 30 June 2015.
[Bhim Singh case and Re Inhuman Conditions in 1382 Prisons]

7. MHA GUIDELINES ON 436A
• Undertrials arrested for only one offence: Eligible for bail if detained in
prison for half the maximum term of punishment prescribed.
• Undertrials arrested for more than one offence in the same case: half-
term to be calculated from the date of detention for each. Eligible only
upon completion of the half-term of the punishment prescribed for the
graver offence.
• Undertrials arrested in more than one offence in different cases:
periods of detention for both cases to be calculated separately from the
date of arrest as separate. UT not to be released unless he is granted
bail under both cases individually.
• Undertrials charged with offences punishable with life imprisonment:
under Section 57, IPC, life imprisonment should be considered as 20
years imprisonment for which the half-term would be 10 years under
Section 436A of the CrPC.
• NOTE: Not mandatory for an UTP to remain in custody for at least half
the period of the maximum sentence only because the trial was not
completed in time.

8. MODEL PRISON MANUAL 2016
• States to appoint jail visiting advocates on fixed
day to help poor and unrepresented inmates
• Legal Services Clinics to be set up in prisons with
panel lawyers and PLVs providing legal services on
all working days. Inmates may also be trained as
PLVs.
• Legal literacy classes on rights and duties of
prisoners and on availability of free legal aid. Use
law students, PLVs and legal aid lawyers
• Ensure implementation of 463A

9. MODEL PRISON MANUAL 2016
• UTC comprising the District Judge, the District
Magistrate, the District Superintendent of Police and
Secretary, DLSA to be constituted to identify under-
trial prisoners who are eligible for bail under 436A.
• SLSAs to instruct the panel lawyers to urgently meet
such prisoners and move appropriate applications
for their release.
• SLSAs to take steps for compounding of
compoundable cases and for expeditious disposal of
other cases

10. MODEL PRISON MANUAL 2016
• Magistrate under a duty to inform accused of
their right to have a lawyer, whether of choice or
at state expense
• Panel lawyers to be deputed as remand /duty
advocate in every court dealing with criminal
cases.
• Superintendent to inform convicts of their right
of appeal against conviction.

11. THE REALITY

12. • Most UTPs have a lawyer – whether legal aid or
private
• Most UTP legal aid beneficiaries do not know their
lawyers well – may have a name or in some cases a
phone number. Some do not even know that they
have a lawyer
• Lawyers do not visit prisons
• With the VC coming in, meeting lawyers during
remand stage rare
• Non-production before courts is an issue, which is
rarely raised by lawyers or noticed by judiciary

13. • Some positive Impact on UTPs eligible under s.436
and s.436 A CrPC
• Those within prison under 436 and 436A , primarily
– Who cannot afford monetary surety
– Who cannot produce local surety
• Link between poverty and denial of liberty
• Interestingly, this link between poverty and denial of
liberty exists irrespective of whether legal
representation by private lawyer or state legal aid
lawyer

14. • Quality of representation by legal aid lawyers,
their appointment process, their monitoring and
(no) consequences for non-performance remain
issues of concern
• Legal aid lawyers often demand money on
different pretexts
• Non-payment of dues By LSAs and low
remuneration cited as justification of poor quality
of legal representation – by lawyers and often
also by LSAs

15. • LSA Monitoring Committees - for close monitoring of
the court based legal services rendered and the
progress of the cases in legal aid matters - either not
appointed or non-functional
• Legal aid in talukas and rural areas worse with no full
time secretaries and meagre resources
• Linkages with university legal aid clinics non-existent,
with some sporadic work done here and there
• System is not client oriented or rights based.
Feedback is not taken from clients on their experience
with LSA lawyers. Lack of appropriate grievance
redressal mechanism

16. AGENDA FOR ACTION
FROM BENEFICIARIES TO RIGHT HOLDERS: WORKING
TOWARDS A CLIENT CENTRIC LEGAL AID SYSTEM

17. RECOGNISING THE CHALLENGES
• Bar: Apathetic
• Subordinate Judiciary: overburdened
• University Legal Aid Clinics: not sustained efforts
• Legal Aid Authorities: Not proactive
• NGOs: aid dependent and not long term
• GOVERNMENT POLICIES OFTEN DO NOT HELP –
MHA GUIDELINES ON ENTRY IN PRISONS

18. USING THE OPPORTUNITIES
• The Law (including NALSA regulations and recent SC
cases): ensure compliance through advocacy with
LSAs and, if necessary through court orders
• Model Prison Manual: Ensure adoption by states
• Ensure the prison system is open and transparent:
use RTI, challenge MHA notification, ensure the
prison visiting system works
• Importance of forming cross-linkages: universities,
commissions, LSAs and NGOs
• Champions within the system: find them and use
them

19. THANK YOU
FROM BENEFICIARIES TO RIGHT HOLDERS: WORKING
TOWARDS A CLIENT CENTRIC LEGAL AID SYSTEM