(B.R. Gavai and K.V. Viswanathan, JJ.)
Suhas Chakma ___________________________________ Petitioner;
v.
Union of India and Others _______________________ Respondent(s).
Writ Petition No. 1082 of 2020, decided on October 23, 2024
The Judgment of the Court was delivered by
K.V. Viswanathan, J.
Brief Facts:
1. The present Writ Petition, under Article 32 of the Constitution of India, was filed primarily for issuance an appropriate Writ, Order or direction directing the respondents Union of India, States and the Union Territories to ensure that no prisoner is subjected to torture, cruel, inhumane and degrading treatment or punishment because of living in overcrowded and unhygienic conditions in jail. It also espouses the cause that all persons deprived of their liberty are entitled to be treated with humanity, and with respect for the inherent dignity and a prayer was made for creating a permanent mechanism to decongest the overcrowded prisons.
2. When the Writ Petition came up for hearing on 22.04.2024, this Court appointed Shri Vijay Hansaria, learned Senior Advocate as Amicus Curiae. Thereafter, on 09.05.2024, Shri K. Parameshwar, learned Senior Advocate (as Amicus Curiae) and Ms. Rashmi Nandakumar, learned counsel for the National Legal Services Authority (NALSA) were requested to assist the Court alongside the already appointed Amicus Curiae. On that day Shri Vijay Hansaria, learned Amicus Curiae tendered to Court the format of a letter to be submitted by the Jail Visiting Lawyers (JVLs) regarding information to convicts on free legal aid. Ms. Rashmi Nandakumar, learned counsel was asked to take instructions from NALSA in this regard. Thereafter, in its order of 17.05.2024, broadly two issues were identified- one pertaining to Open Correctional Institutions and the other with regard to modalities for visitation by lawyers in jail so as to ensure free legal aid to the deserving prison inmates. On 17.05.2024, Ms. Rashmi Nandakumar, learned counsel informed the Court that the format of letter initially handed over by the learned Amicus has been slightly modified in consultation with NALSA and the said modified letter to be filled by the JVLs were taken on record and approved.
3. By a note submitted by learned counsel – Ms. Rashmi Nandakumar on 15.07.2024, it was set out that the letter, as approved in the order of 17.05.2024, was circulated by the NALSA to all the State Legal Services Authorities (SLSAs) and a direction was issued to them to collate the data received by JVLs and compile the information as per the format prescribed by NALSA. Details of responses received till 15th July, 2024 were also set out and directions were issued to other States to file their responses. When the matter was taken up on 09.09.2024, a detailed note dated 06.09.2024 was placed on record by Ms. Rashmi Nandakumar, learned counsel on the aspect of access to free legal aid for the deserving prison inmates. This judgment deals with the aspect of access to free legal aid for prison inmates. The issue of “Open Correctional Institutions” will be heard and considered separately by the Court.
4. We have heard Mr. Vijay Hansaria learned Amicus Curiate and Ms. Rashmi Nandakumar, learned counsel. We have considered the detailed note submitted by the NALSA.
Constitutional Goal
5. Article 39-A of the Directive Principles of State Policy which talks of equal justice and free legal aid reads as under:
39-A. 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.
Relevant Judicial Pronouncements
6. This Court in Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98, held as under:
“6. …. It is not uncommon to find that undertrial 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 the undertrial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pre-trial detention…
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 [(1978) 1 SCC 248] 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 under 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 ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court’s process that he should have legal services available to him…..
(Emphasis supplied)
Further, this Court in Khatri (2) v. State of Bihar, (1981) 1 SCC 627, para 6, held as under:
6. But even this right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right.
….It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose. The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. Unfortunately, the Judicial Magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided. We would, therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State…..”
(Emphasis supplied)
7. This Court has held that free legal assistance for poor and indigent at the cost of the State is a fundamental right of a person under Article 21 even if the person does not seek legal assistance on his own. In Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401, this Court held as under.-
“6. But the question is whether this fundamental right could lawfully be denied to the appellant if he did not apply for free legal aid. Is the exercise of this fundamental right conditioned upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him? Now it is common knowledge that about 70 per cent of the people living in rural areas are illiterate and even more than that percentage of the people are not aware of the rights conferred upon them by law. Even literate people do not know what are their rights and entitlements under the law. It is this absence of legal awareness which is responsible for the deception, exploitation and deprivation of rights and benefits from which the poor suffer in this land. Their legal needs always stand to become crisis-oriented because their ignorance prevents them from anticipating legal troubles and approaching a lawyer for consultation and advice in time and their poverty magnifies the impact of the legal troubles and difficulties when they come. Moreover, because of their ignorance and illiteracy, they cannot become self-reliant: they cannot even help themselves. The law ceases to be their protector because they do not know that they are entitled to the protection of the law and they can avail of the legal service programme for putting an end to their exploitation and winning their rights…”
(Emphasis supplied)
8. In Madhav Hayawadanrao Hoskot v. State of Maharashtra, (1978) 3 SCC 544, this Court, while holding that right to counsel for a prisoner is a fundamental right traceable to Article 21, held that procedural safeguards are the indispensable essence of liberty. This Court held as under:—
“14. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer’s services. 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 supportive 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 needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said: [Justice and Reform, Earl Johnson, Jr. p. 11]
“What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee?”
xxxxxx
25. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under Article 142, read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual “for doing complete justice”. This is a necessary incident of the right of appeal conferred by the Code and allowed by Article 136 of the Constitution. The inference is inevitable that this is a State’s duty and not Government’s charity. Equally affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services…..
26. In the present petition, the party, though preferred legal aid by the court, preferred to argue himself. Even so we uphold the right to counsel not in the permissive sense of Article 22(1) and its wider amplitude but in the peremptory sense of Article 21 confined to prison situations.
(Emphasis supplied)
9. In Sunil Batra (II) v. Delhi Administration., (1980) 3 SCC 488 in Para 30 and 78(3), this Cout held as under.-
“30. We, therefore, affirm that where the rights of a prisoner, either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warrant for this vigil. The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration….
78(3). Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the visitatorial and supervisory judicial role. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court results which have relevance to legal grievances.”
(Emphasis supplied)
The Legal Services Authorities Act, 1987
10. To give effect to the constitutional goal under Article 39-A, the Legal Services Authorities Act, 1987 was enacted. As the preamble to the Act sets out, the Act was to constitute legal services authorities to provide free and competent legal services to the weaker sections of society, to ensure that opportunities for securing justice are not denied to any citizen by reason of any economic or other disabilities. Under Section 3 of the Act, the National Legal Services Authority (NALSA) is constituted. Under Section 4, the functions of the NALSA are set out and the relevant ones for the purpose of the present issue are (a) (b) (c) and (i). They are extracted herein below.
“4. Functions of the Central Authority.—
The Central Authority shall perform all or any of the following functions, namely:
(a) lay down policies and principles for making legal services available under the provisions of this Act;
(b) frame the most effective and economical schemes for the purpose of making legal services available under the provisions of this Act;
(c) utilise the funds at its disposal and make appropriate allocations of funds to the State Authorities and District Authorities;
(i) monitor and evaluate implementation of the legal aid programmes at periodic intervals and provide for independent evaluation of programmes and schemes implemented in whole or in part by funds provided under this Act;”
Section 6 and 9 deal with the constitution of State Legal Services Authority and the District Legal Services Authority respectively. Section 12 of the Act is a significant provision. Section 12, inter alia, sets out that every person in custody who has to file or defend a case shall be entitled to legal services under the Act. Section 13 mandates that persons who satisfy all or any of the criteria specified in Section 12 shall be entitled to receive legal services provided that the concerned authority is satisfied that such persons have a prima facie case to prosecute or to defend. Section 14 speaks of grants by Central Government and Section 15 speaks of the National Legal Aid Fund and the application thereof. In exercise of its power NALSA has been periodically laying down the policies and principles for making legal services available under the provisions of the Act and framing schemes and providing for utilization of funds.
NALSA-Standard Operating Procedures on Access to Legal Aid Services to Prisoners and Functioning of the Prison Legal Aid Clinics – 2022
11. As the note submitted by the learned counsel indicate, furtherance of this function NALSA has formulated the SOP on access to legal aid services to prisoners and functioning of the Prison Legal Aid Clinics (PLACs) (hereinafter referred to as NALSA SOP-2022). The NALSA SOP-2022 deals with (i) The setting up and functioning of the PLACs (ii) The purpose behind establishing the PLACs (iii) The Roles and responsibilities of different legal aid functionaries attached with the PLACs (iv) The monitoring of PLACs by DLSAs. (v) The process of application for legal aid and role of PLACs in facilitating appointment of legal aid lawyer (vi) The PLACs role in providing legal aid services and legal assistance to the vulnerable groups in prisons; (vii) The PLACs role in providing legal information to prisoners and their families; (viii) The PLACs role in imparting legal knowledge to prisoners about their rights and their grievance redressal mechanism; and (ix) The PLACs role in giving legal assistance for filing Jail Appeals before the High Courts and the Supreme Court by the convicts in prison.
12. As set out in the note, the NALSA SOP-2022 enumerates the following functions of the PLACs:—
“a. to ensure at all times that no prisoner is without legal representation at any stage of the criminal proceedings and to generate awareness about the same;
b. to bridge the information gap between the prisoner and the Court;
c. to facilitate communication between the prisoner and the lawyer, whether legal aid or private;
d. to ensure that no person is illegally or unnecessarily detained;
e. to ensure special needs of vulnerable groups (women, young offenders, mentally-ill, foreign nationals, persons from other states, etc.); in prisons are addressed;
f. to collaborate with local authorities, universities, academic institutions and civil society organizations to further strengthen legal aid services for prisoners;
g. to act as a One Stop Centre (OSC) to raise the grievances of the prisoners and direct the grievances to appropriate authorities through DLSA; and
h. to undertake the implementation of the NALSA and SLSA campaigns for prisoners or any other work assigned to fulfil its mandate of providing legal aid services and assistance to the prisoners.”
13. NALSA SOP-2022 also deals with the duties of the JVLs and the Paralegal Volunteers (PLVs). The duties of the JVLs, as set out in the note, are as follows:—
“a) To identify cases eligible for release under the mandate of the Undertrial Review Committee (UTRC);
b) To interact with inmates identified by the paralegal volunteers and provide legal advice;
c) To draft applications and petitions for parole/juvenility/bail etc. for the undertrials and convicts present in the clinic;
d) To ensure filling of legal aid application form for those who need legal aid lawyers and submit the same to the legal services authority, without any delay;
e) To conduct legal awareness camps inside prisons including apprising new entrants to prison about the free legal services provided by Tehsil Legal Services Committee (TSLC) or Sub-Divisional Legal Services Committee (SDLSC), District Legal Services Authority (DLSA), High Court Legal Services Committee (HCLSC) and Supreme Court Legal Services Committee (SCLSC);
f) To regularly inform the inmates about the status of their cases;
g) To communicate to the defense lawyer any pertinent information that an inmate has requested to be shared with his/her lawyer;
h) To also represent the inmates in courts in some cases, if appointed by the Legal Service Institution but not otherwise;
i) To prioritize and focus on personal interactions with the inmates in the PLAC during the visit and then document and prepare the petitions;
j) To assist the UTRC by coordinating with the inmates and the courts on cases eligible for release;
k) To follow the directions given under NALSA SOP for representing persons in custody;
1) To bring into notice of DLSA about the concern of inmates in respect of conditions in jail;
m) Updating information on digital platform of legal aid and legal aid e-prison.”
The duties of the PLVs are as under:
“a) To establish/manage Legal Aid Clinics inside prisons, as prescribed;
b) To take steps towards identification of prison inmates who are in need of legal assistance. This would involve reaching out to all prisoners whether beneficiary of legal aid or not, especially the new entrants;
c) To seek permission from the prison authorities to visit the wards/enclosures of prisoners to ascertain that no one remains unrepresented;
d) To fill out the legal aid application form and promptly send it to the concerned DLSA/TLSC & also ensure that the prisoners interact with the Jail Visiting Lawyer on his next visit to prison;
e) To coordinate and assist the Jail Visiting Lawyers in providing legal advice and aid;
f) To give updates on the proceedings in a case to the inmates;
g) To counsel inmates and explain any legal provision pertaining to their case. Where there are doubts, then refer the case to the Jail Visiting Lawyer;
h) To receive legal aid lawyer appointment letters, replies from legal service institutions and other authorities, maintain record and give copies to the concerned prisoner;
i) To submit reports to the DLSA about the Undertrial Review Committee on cases eligible under section 436/436A Cr.P.C.;
j) To keep track of non-production of any inmate in the Court as per the date given and inform the Secretary, DLSA/SDLSC or TLCS;
k) To assist the prison inmate in filing any complaint or grievances relating to their stay in prison; and
l) To send reminders/letters to the corresponding Legal Services Authority to seek information regarding status of case, name and contact details of the assigned legal aid lawyer.”
14. Under Para 15 of the NALSA SOP-2022, the procedure for ensuring smooth filing of petitions of the convicts in High Courts and the Supreme Court has been outlined as follows:
“a) As soon as the order rejecting bail or an order of conviction is pronounced by the Court (Magistrate Court, Sessions Court or High Court), a prisoner shall be informed by the PLAC regarding the right to bail/appeal/review/revision in the High Court/Supreme Court and the process of filing the same.
b) Steps must be taken promptly through the PLAC to apply for appointment of lawyer by the High Court Legal Services Committee (HCLSC) or the Supreme Court Legal Services Committee (SCLSC), as the case may be. A record of such application must be made in designated register/database.
c) Where copy of judgement is not available with the prisoner, the DLSA shall make available an extra copy of the judgement to the prisoner to enable filing of the petition/jail appeal.
d) Upon receiving a request for legal assistance, the HCLSC/SCLSC must immediately appoint a lawyer to the case, details of whom must be duly intimated to the prisoner via the Prison Superintendent, as per prescribed formats provided in the NALSA’s Handbook of Formats, 2020.
e) Details of the lawyer appointed by the HCLSC/SCLSC must be duly noted in the register/database maintained at the PLAC.
f) Regular interaction and communication between the counsel and the client/convict must be ensured by SCLSC, HCLSC, DLSA and SLSA in order to update the beneficiary as to the progress of the case. Where the prisoners complain of lack of interaction with lawyer assigned by HCLSC/SCLSC, the DLSA shall intimate the same to the HCLSC/SCLSC at the earliest.
g) The PLV shall provide updates to the prisoner on progress in his/her case. Information may be sourced directly from the HCLSC/SCLSC or through the relevant Court websites.
h) DLSA may undertake to jointly conduct camps with HCLSC/SCLSC to apprise prisoners of the various remedies in law for bail/appeal/review/revision as well as writ remedies.”
NALSA has also adopted methods to strengthen the monitoring of PLACs and to review their functioning.
Statistical Data
15. NALSA has stated that as per the information received from the SLSAs, there are a total of 1265 Jails (including sub jails and women jails), 1256 PLACs and 6663 Jail Visiting Lawyers. As of 2023-24, NALSA has interacted with 4,56,798 inmates and provided legal assistance to 3,24,867 inmates. Further, as of June, 2024, 880 appeals of convicts have been filed in the Sessions Courts, 1,593 appeals in the High Courts and as on date (that is up to 04.09.2024), 1309 convicts have been able to file special leave petitions in this Court.
Legal Aid Defense Counsel System
16. A pioneering measure adopted by NALSA since the year 2021-22 is the introduction of the Legal Aid Defense Counsel System with a view to strengthen and professionalize legal services delivered. At present, as per the report, around 611 of the 703 districts in the country have the Legal Aid Defense Counsel System in place. Just as there is a prosecuting office for the prosecution, this is an institutionalized method of providing defense counsel assistance in legal aid matters. The Legal Aid Defense Counsel System includes dedicated, full-time experienced lawyers to represent the accused. The lawyers exclusively deal with criminal legal aid cases ensuring effective and efficient representation, timely and effective client consultations, effective monitoring of legal aid cases, professional management of legal aid work in criminal matters and enhance responsiveness to the litigant. The modified Legal Aid Defense Counsel System Scheme of 2022 provides for the selection process of the Legal Aid Defense Counsels (LADCs), the number of human resources to be engaged, the infrastructural requirements, essential qualifications and the role of legal services institutions. The objective of the scheme is to (a) Provide qualitative and competent legal services in criminal matters to all eligible persons (b) To manage and implement legal aid system in a professional manner in criminal matters. As of 31.03.2024, the following are the statistics with regard to the number of Chief Legal Aid Counsels, number of Deputy Chief Legal Aid Counsels and the number of Assistant Legal Aid Counsels.
“Till 31.03.2024, Office of LADC was set up in 611 districts across India.
| Category of LADC | Human Resource |
| No. of Chief Legal Aid Counsels | 500 |
| No. of Deputy Chief Legal Aid Counsels | 713 |
| No. of Assistant Legal Aid Counsels | 1193 |
| Total No. of Legal Aid Defence Counsels | 2406 |
Special Campaign for Prisoners
17. The report indicates that NALSA has time and again undertaken special campaigns for prisoners to ensure timely access after recognizing the unique challenges faced by the convicts in accessing justice. The objectives of the Campaign are to:
(a) Secure appellate rights of the convicts;
(b) Ensuring that incarceration does not go beyond the period of their imprisonment or after remission;
(c) To secure parole/furlough and remission rights of the convicts. To fully ensure the appellate rights of the convicts, NALSA with the assistance of the DLSA, collects data of each of the convicts from (i) Jail authorities (ii) Courts (iii) High Court Legal Services Committee (iv) Supreme Court Legal Services Committee.
Steps are taken to ensure the communication of the status of the appeal filed and the next date of hearing; follow up with regard to the filing of appeals by the legal aid committee and the assigned counsel.
18. After collection of data, the following categorization is made:
“• Convicts who are not willing to file appeals/SLPs.
• Convicts who have already filed appeals/SLPs through private lawyers.
• Convicts who have not at all filed appeals/SLPs but want to file appeal/SLPs through Legal Services Institutions.
• Convicts who have sought legal aid for filing appeals/SLPs but their appeals/SLPs have not been filed due to lack of documents or other reasons.
• Convicts whose appeals/SLPs have been filed through legal services authorities but they are not aware about the name of their lawyers and the status of their appeals.
• Convicts who have moved bail applications through Legal Services Institutions (LSIs) but are not aware about the status of applications.
• Convicts who want to get their matter processed for parole/furlough/remission etc. but are not aware of the processes, and require drafting of applications for it.”
Awareness
19. The most important task in any legal service is spreading of its awareness to the needy. The status report of NALSA indicates that convicts were made aware about the availability of free legal services, availability of the right to file Appeals/SLPs and the process of filing the same. This guarantees and effectuates Article 21 inasmuch as for the convict in custody too, who is virtually incommunicado with the outside world, is positively made aware about his rights in the nature of the existence of a right of appeal and the facility available for availing free legal services. This brings into full play Section 341 of the Bhartiya Nagarik Suraksha Sanhita, 2023, which reads as under:—
341. Legal aid to accused at State expense in certain cases.-
(1) Where, in a trial or appeal before a Court, the accused is not represented by an advocate, and where it appears to the Court that the accused has not sufficient means to engage an advocate, the Court shall assign an advocate for his defence at the expense of the State.
(2) The High Court may, with the previous approval of the State Government, make rules providing for— (a) the mode of selecting advocates for defence under sub-section (1); (b) the facilities to be allowed to such advocates by the Courts; (c) the fees payable to such advocates by the Government, and generally, for carrying out the purposes of sub-section (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.”
Compilation and Translation of Documents.
20. NALSA report states that steps are being taken to ensure that necessary documents are collected along with the custody certificate and vakalatnama. Translation, interrogation through video conferencing and drafting of applications are also arranged by NALSA.
21. We are satisfied that insofar as provision of legal services are concerned, NALSA with the effective coordination of the SLSAs and DLSAs and assisting agencies are rendering yeomen service to realize the constitutional goal of Article 39-A. They are also striving hard for the effective implementation of the provisions of the Legal Services Authorities Act, 1987.
SOP- For (Under Trial Review Committees (UTRCs).
22. While NALSA SOP-2022 dealt with the provisions of legal aid services to the prisoners, NALSA has a separate Standard Operating Procedure for the smooth functioning of the Under Trial Review Committees (UTRCs). This is to ensure that prisoners covered under the following 14 categories, as directed by this Court, are released from jail without delay. The 14 categories of Undertrial Prisoners and the directions are as under:—
“3.3.1 In case UTPs covered under Section 436A Cr.P.C.:
UTRC may recommend to concerned trial court to take up the matter and consider him/her for release on bail if there are no special reasons to deny bail, with or without sureties.
3.3.2 UTPs released on bail by the court, but have not been able to furnish sureties:
The UTRC may recommend the trial court to examine the reason why the accused is not furnishing surety/bail bonds and if he/she is unable to do so due to poverty, then the trial court may consider reducing the bail amount on the application of the lawyer under S.440, CrPC or release on personal bond.
3.3.3 UTPs accused of compoundable offences:
The UTRC may recommend to the trial court to consider if the offence can be compounded between the complainant and the accused as per law.
3.3.4 UTPs eligible under Section 436 of Cr.P.C.:
The UTRC may recommend to the trial court to consider releasing such an accused on personal bond in case he is unable to furnish bail bond within seven days of bail order.
3.3.5 UTPs who may be covered under Section 3 of the Probation of Offenders Act, namely accused of offence under Sections 379, 380, 381, 404, 420 IPC or alleged to be an offence not more than 2 years imprisonment:
The UTRC may recommend to the trial court to consider invoking of Probation of Offenders Act in fit cases as also plea bargaining in appropriate cases.
3.3.6 Convicts who have undergone their sentence or are entitled to release because of remission granted to them:
The UTRC may examine the reason for non-release of the convict and the Officer in-charge of prison may be recommended to look into the matter so that the convict is released as soon as possible.
3.3.7 UTPs become eligible to be released on bail under Section 167(2)(a)(i) & (ii) of the Code read with Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (where persons accused of Section 19 or Section 24 or Section 27A or for offences involving commercial quantity) and where investigation is not completed in 60/90/180 days:
The UTRC may recommend to the trial court to consider release of the accused in cases where chargesheet is not submitted within the statutory time frame.
3.3.8 UTPs who are imprisoned for offences which carry a maximum punishment of 2 years:
The UTRC may recommend to the trial court to consider releasing of the UTP on bail in such cases.
3.3.9 UTPs who are detained under Chapter VIII of the Cr.P.C. i.e. under Sections 107, 108, 109 and 151 of Cr.P.C.:
The Executive Magistrate/District Magistrate court may be recommended to release/discharge such persons with or without conditions or to make an order reducing the amount of the security or the number of sureties or the time for which security has been required.
3.3.10 UTPs who are sick or infirm and require specialized medical treatment:
The UTRC may examine the medical condition of the inmate and if it is found that the inmate is very sick and specialized treatment is essential for survival, then the UTRC may recommend the trial court to consider granting bail on medical ground, as provided under S.437, CrPC, even for temporary period.
3.3.11 UTPs women offenders:
Women under trial prisoners who are not accused of serious offences may be considered for release on bail under S.437, CrPC, especially they are first time offenders by the concerned trial courts. The UTRC may also recommend suitable measures under the directions of the Hon’ble Court in R.D. Upadhyay v. State of A.P. (AIR 2006 SC 1946).
3.3.12 UTPs who are first time offenders between the ages 19 and 21 years and in custody for the offence punishable with less than 7 years of imprisonment and have suffered at least 1/4th of the maximum sentence possible:
The UTRC may request the trial court to consider granting bail to such young offenders. If the person is found guilty in the course of trial, benefit of S.3 or S.4 of the Probation of Offenders Act, 1958, may be given to the accused.
3.3.13 UTPs who are of unsound mind and must be dealt with Chapter XXV of the Code:
UTRC may recommend the trial court to take appropriate steps in accordance with Chapter XXV of the Code and provide adequate treatment to such inmates.
3.3.14 UTPs eligible for release under Section 437(6) of Cr.P.C., wherein in a case triable by a Magistrate, the trial of a person accused of any non-bailable offence has not been concluded within a period of 60 days from the first date fixed for taking evidence in the case:
UTRC may request the trial court to consider granting bail to such UTPs under Section 437(6) of Cr.P.C.
23. The Under Trial Review Committee meetings have resulted in the recommendation for release of 3,13,888 prisoners and the actual release of 1,52,570 prisoners across India. Acknowledging that there could be unintended lapses in the identification of prisoners, NALSA has taken corrective steps. NALSA also acknowledges the huge gap between the total number of persons identified and number of persons recommended for release and further the difference in the number of inmates recommended for release and the number of bail applications filed on their behalf. NALSA acknowledges that there has been continued detention of persons even when they are eligible for statutory bail under Sections 436A, 436, 167(2) CrPC, the continued detention of persons with mental illness despite statutory safeguards; the continued arrest and detention of persons under offences carrying less than 7 years punishment despite the directives of this Court. Limited use of liberal bail provisions for women and sick or infirm persons are some of the reasons, according to NALSA, for large number of persons continuing to remain behind bars.
Pre-Litigation Assistance
24. One of the important areas where legal aid, was in the initial days found wanting was in the pre litigation arena. NALSA has risen to the occasion by introducing “Early Access to Justice at Pre-Arrest, Arrest and Remand Stage Framework”, under which all DLSAs upon receiving the intimation of request of the suspect/arrestee to have free legal assistance during interrogation, shall inform the deputed lawyer as per the duty roster. The assigned lawyer is to then to go to the concerned Police Station to provide legal assistance to such persons. Specific duties have been cast on legal aid lawyers to challenge the arrests made in violation of the statutory framework or binding precedents; to move bail application expeditiously and keep the client informed about their status. More importantly, the legal aid lawyers have been asked to move applications, wherever necessary, for modification of bail conditions such as suretyship amount.
25. In a recent case, this Court in Girish Gandhi v. State of UP, 2024 SCC OnLine SC 2142 had the following to say on how excessive bail conditions virtually defeats the bail:—
23. From time immemorial, the principle has been that the excessive bail is no bail. To grant bail and thereafter to impose excessive and onerous conditions, is to take away with the left hand, what is given with the right. As to what is excessive will depend on the facts and circumstances of each case. In the present case, the petitioner is experiencing a genuine difficulty in finding multiple sureties. Sureties are essential to ensure the presence of the accused, released on bail. At the same time, where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate. As to what such an order should be, will again depend on the facts and circumstances of each case.
24. In Satender Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51, this Court held that “imposing a condition which is impossible of compliance would be defeating the very object of release.”
26. NALSA Lawyers step in to obtain translated copies of documents wherever necessary; ensure that in case of a foreign national, the concerned High Commission is informed and also make submissions if the suspect/arrestee appears to be a child/juvenile. Statistics reveal that as of June, 2024, 17,894 suspects have been given legal assistance at the pre arrest stage at the Police Station. Of them, 7,466 were not arrested. It is set out that 13,747 accused were provided assistance at the Police Station before producing them in Courts, 94,875 at the remand stage, 37,929 bail applications were filed at the remand stage in which 20182 accused were granted bail. While we commend NALSA for the steps taken, we also direct that they continue to keep up the momentum and plug the gaps, if any, which they themselves have fairly identified and placed before the Court.
E-Prison Module/E-kiosks in Prisons
27. NALSA has also stated that E-Prison Module for effective monitoring of cases has been implemented and under the modified E-Prison Module data regarding orders granting bail, the status of implementation of orders granting bail and orders of acquittal are uploaded. Similarly, NALSA has prepared a module called “Inmates Information Access to Relatives” – whereby the inmates and/or their relatives are able to access details relating to the prisoners. The prisoner and the nominated relatives can access the details through E-Kiosks installed inside the jails. Through these E-Kiosks, the prisoner/relatives can check the next hearing date, remission period, parole and furlough application status etc.
28. In an order passed as a chamber judge (one of us), Viswanathan K.V.J. in Sanjit Saha v. State of West Bengal, 2023 INSC 1085 made the following suggestion so that the data from prison is available on a click of a button to courts including this Court. The said Para is extracted hereinbelow.
“30. The long-term option would be in the digital era to evolve a mechanism whereby, the Jail authorities are vested with an obligation to upload on a customised web portal, the surrender and custody particulars of the convicts with the corresponding numbers of the Criminal Appeals/Special Leave Petitions. This will ensure that on a click of a button, all up to date information are available for the Court.”
29. NALSA, SLSAs and DLSAs can all help the prison authorities and the Courts by acting as a bridge in ensuring that the data is fed and made available to the Court.
Steps taken pursuant to the order of this Court on 09.05.2024 and 17.05.2024
30. Acting on the communication of NALSA and based on the convict information sheet received from the JVLs, SLSAs have sent their first quarterly report to NALSA. The following tables have been placed by NALSA in the report dated 06.09.2024.
The data regarding the legal services provided to prisoners at these PLACs over the years is as under:
| Years | 2019-20 | 2020-21 | 2021-22 | 2022-23 | 2023-24 |
| No. of Prison Legal Services Clinics | 1111 | 1076 | 1181 | 1177 | 1256 |
| No. of inmates interacted with | 369698 | 162670 | 259339 | 350265 | 456798 |
| No. of inmates provided legal assistance | 297708 | 143037 | 218501 | 264593 | 324867 |
The data regarding the legal services provided to convicts for filing appeals is as under:
| Years | No. of convicts whose appeals were filed in the Session’s Court | Number of convicts whose papers/applications were sent to the High Courts by DLSA’s for filing appeals | Number of convicts on whose behalf SLPs were filed through SCLSC (all SLPs) |
| 2021 | 1283 | 3181 | 810 |
| 2022 | 2101 | 4115 | 1153 |
| 2023 | 3504 | 4716 | 1262 |
| 2024 | 880 (from 01.01.2024 till 31.08.2024) | 1593 (from 01.01.2024 till 31.08.2024) | 1309 (from 01.01.2024 till 04.09.2024) |
The State-wise breakup of total convicts and convicts who filed appeals are as follows. Mr. Vijay Hansaria, learned Amicus Curiae has made the analysis and after adding two columns to the chart filed by NALSA, has placed the following before us:—
| State | Total Convicts | Appeals | Appeals not filed | Percent of appeals not filed |
| Andhra Pradesh | 1751 | 1415 | 336 | 19% |
| Arunachal Pradesh | 62 | 6 | 56 | 90% |
| Assam | 2180 | 2021 | 159 | 7% |
| Dadra & Nagar Haveli | 0 | |||
| Daman Diu | 0 | |||
| Chhattisgarh | 306 | 280 | 26 | 8% |
| Goa | 52 | 48 | 4 | 2% |
| Jammu and Kashmir | 131 | 118 | 13 | 10% |
| Jharkhand | 2942 | 2651 | 291 | 10% |
| Kerala | 596 | 532 | 64 | 11% |
| Lakshadweep | 0 | |||
| Manipur | 78 | 37 | 41 | 53% |
| Meghalaya | 308 | 150 | 158 | 51% |
| Rajasthan | 1890 | 1842 | 48 | 3% |
| Pondicherry | 102 | 9 | 93 | 91% |
| Punjab | 3159 | 2591 | 568 | 18% |
| Telangana | 297 | 243 | 54 | 18% |
| Uttarakhand | 1701 | 1683 | 18 | 1% |
| West Bengal | 2454 | 1561 | 893 | 36% |
| Chandigarh | 306 | 280 | 26 | 8% |
| Gujarat | 2740 | 1937 | 803 | 29% |
| Himachal | 869 | 663 | 206 | 24% |
| Madhya Pradesh | 16813 | 16149 | 664 | 4% |
| Tripura | 285 | 213 | 72 | 25% |
| Uttar Pradesh | 12858 | 11870 | 988 | 8% |
| Karnataka | 2071 | 1389 | 682 | 33% |
| Mizoram | 50 | 27 | 23 | 46% |
| Maharashtra | 2580 | 1739 | 841 | 33% |
| Ladakh | 4 | 3 | 1 | 25% |
| Bihar | 4382 | 4048 | 334 | 8% |
| Orissa | 3048 | 2820 | 156 | 5% |
| Tamil Nadu | 2829 | 2197 | 632 | 22% |
| Nagaland | 42 | 14 | 28 | 67% |
| Haryana | 4366 | 3600 | 766 | 18% |
| Sikkim | NA | NA | ||
| Total | 71,252 | 62,136 | 9,044 |
It has also been mentioned that insofar as the Union Territory of Dadra and Nagar Haveli is concerned, there was only one sub-jail where all the prisoners were undertrials. The convicts of the Union Territory have been sent to the Central Jail of nearby districts in Gujarat. Insofar as the Union Territory of Daman and Diu was concerned, the figure was Nil. In the Union Territory of Lakshadweep, no convict was lodged in its jail as all convicts are transferred to a jail in Kerala, post-conviction. In Sikkim, the data is still awaited.
31. The learned Amicus has also drawn the attention of this Court to the judgment of Justice Ajay Bhanot of the Allahabad High Court in Ramu v. State of U.P., 2024 SCC OnLine All 4618. Learned Amicus prays that the appeal of the 870 convicts who had expressed their willingness to file appeals, as recorded in the order of 15.07.2024, be filed within 4 weeks, if not already filed, and an updated status report be filed by NALSA giving details of the convicts who have consented to file the appeals through legal aid. Apart from the above, learned Amicus had also prayed for a direction that the judgment in Ramu (Supra) be made applicable to all States throughout the country.
Reasons given by convicts for not filing appeals
32. NALSA in its report of 06.09.2024 has opined that the convicts who have not preferred an appeal had adduced the following reasons:—
“i. Convicts were not interested in preferring an appeal as they were satisfied with the current judgment and order on sentence;
ii. Convicts had served a substantial part of their sentence;
iii. Convicts’ appeal was rejected by the High Court and hence, they didn’t want to file an appeal before the Supreme Court;
iv. Convicts lacked the financial resources to prefer an appeal;
v. Convicts wanted to consult their families before deciding whether or not to prefer an appeal;
vi. Convicts wanted to engage a private counsel;
vii. Convicts had a fear of enhancement of sentence in the Appellate proceedings;
viii. Convicts had originally pleaded guilty to the offence and were hence, not inclined to prefer an appeal;
ix. Convicts had multiple cases pending against them;
X. Convicts were not willing to state any specific reason for not preferring an appeal; and xi. Convicts had been recently convicted.”
NALSA has stated that regular interaction is on with the convicts who have not preferred the appeals and they have been informed of the availability of free legal aid and the convicts falling in the categories (i), (x), (xi) are regularly interacting with the JVLs about their rights. The DLSAs are also conducting monthly inspections of the PLACs. Periodical reports of the DLSAs are to be submitted to the SLSAs, and the SLSAs are periodically sending reports to NALSA. The concern of Mr. Vijay Hansaria, learned Amicus Curie, is duly addressed by NALSA.
AS WAS SAID:- “LEGAL AID TO POOR SHOULD NOT BE POOR LEGAL AID”.
33. This Court in Ramanand @ Nandlal Bharti v. State of U.P., 2022 SCC OnLine SC 1396, while discussing the quality of legal aid, in para 120, held as under:
“120. It is by far now well-settled for a legal proposition that it is the duty of the court to see and ensure that an accused put on a criminal trial is effectively represented by a defence counsel, and in the event on account of indigence, poverty or illiteracy or any other disabling factor, he is not able to engage a counsel of his choice, it becomes the duty of the court to provide him appropriate and meaningful legal aid at the State expense. What is meant by the duty of the State to ensure a fair defence to an accused is not the employment of a defence counsel for namesake. It has to be the provision of a counsel who defends the accused diligently to the best of his abilities. While the quality of the defence or the caliber of the counsel would not militate against the guarantee to a fair trial sanctioned by Articles 21 and 22 resply of the Constitution, a threshold level of competence and due diligence in the discharge of his duties as a defence counsel would certainly be the constitutional guaranteed expectation. The presence of counsel on record means effective, genuine and faithful presence and not a mere farcical, sham or a virtual presence that is illusory, if not fraudulent.”
Directions:—
34. In view of the above, we dispose of the matter by issuing the following directions:—
i. While commending the work already done by NALSA, the SLSAs and the DLSAs, we have no reason to doubt that the Legal Services Authorities at different levels will continue to work with the same momentum to achieve the constitutional objectives and objectives of the Legal Services Authorities Act, 1987.
ii. NALSA in cooperation with the SLSAs and the DLSAs will ensure that the SOP on Access to Legal Aid Services to prisoners and functioning of PLACs are operated efficiently in practice. NALSA will periodically update and improve the measures prescribed under the SOP-2022 so as to address any of the inadequacies that may emerge while operating the same at the field level.
iii. The Legal Services Authorities at different levels will adopt methods to strengthen the monitoring of PLACs and to review their functioning periodically.
iv. The Legal Services Authorities will periodically update the statistical data and after analysing the results take steps to address the shortcomings that may come to light.
v. The Legal Services Authorities, at all levels, should ensure that the Legal Aid Defence Counsel System, which is a pioneering measure, functions to its full potential. In this regard, periodic inspection and audit of the work of the Legal Aid Defence Counsels should be carried out. Steps should also be taken to improve the service conditions of the personnel working in the Legal Aid Defence Counsel system, whenever it is felt necessary and appropriate.
vi. For the success of the functioning of the legal aid mechanism, awareness is the key. A robust mechanism should be put in place and periodically updated to ensure that the various beneficial schemes promoted by the Legal Services Authorities reaches the nook and corner of the nation and particularly, to those whose grievances it has set out to address. Adequate literature including in the local languages in the States and appropriate promotional methods should be launched so that the consumers of justice to whom the schemes are intended can make best use of the same.
vii. In this regard, inter alia, the following measures to create awareness could be undertaken through the length and breadth of the nation to spread the message of the availability of legal aid:
(a) In public places like police stations, post offices, bus stands, railway stations etc. boards in prominent places be displayed furnishing the address for contact and the phone numbers of the nearest legal aid office. This should be done in the local language and in English.
(b) Promotional campaigns in the local language be undertaken through Radio/All India Radio/Doordarshan. This will be in addition to the promotional measures undertaken through the digitalization process – like hosting of websites and prominent mention thereon on the landing page of the legal services authority wherever permissible.
(c) To create complete awareness about the existence of legal aid schemes, promotional campaigns may include such other creative measures including organization of street corner plays (nukkad natak) in rural areas so that the poor rural masses comprehend the facility available to them through the legal aid scheme. These should be undertaken without dislocating the normal life of citizens. Further, these measures will not only create awareness about legal aid to the accused but will also create awareness for the victims and for those whose civil rights have been infringed.
viii. The Legal Services Authorities will periodically review and update SOP-2022 for the Undertrial Review Committee [UTRC].
ix. The huge gap between total number of persons identified by the UTRC and the number of persons recommended for release should be looked into and adequate corrective measures be taken. Similarly, the difference between the number of prisoners/inmates recommended for release and the number of bail applications filed should be particularly looked into by NALSA/SLSAs/DLSAs and adequate corrective measures taken.
x. The “Early Access to Justice at Pre-arrest, Arrest and Remand Stage Framework” established by NALSA for pre-litigation assistance should be diligently pursued and the work undertaken under the framework be periodically reviewed.
xi. Interaction by the Legal Service Authorities at different levels with convicts who had not preferred appeals should be periodically undertaken and the convicts be informed of their right to free legal aid.
xii. Periodic interaction should be held with Jail Visiting Lawyers (JVLs) and Para Legal Volunteers (PLVs). This is to ensure updation of their knowledge so that the system functions efficiently as a whole.
xiii. Steps for continuing education of lawyers involved in pre-litigation assistance and those associated with the Legal Aid Defence Counsel set-up should be provided by Legal Services Authorities. Apart from this, it should also be ensured that adequate law books and access to online libraries are available to lawyers engaged at the pre-litigation assistance stage and those involved with the Legal Defence Counsel set-up.
xiv. Periodic reports should be submitted by the DLSAs to the SLSAs and the SLSAs to the NALSA, if not already done. NALSA should digitise the whole process whereby at the central level NALSA can, on the click of a button, get details of the updates done by SLSAs and DLSAs on regular basis.
xv. The Union of India and the State Governments shall continue to extend their cooperation and assistance to the Legal Services Authorities at different levels for the effective implementation of the measures taken by them.
xvi. We direct the Registry to forward a copy of this judgment to all the High Courts in the country. The High Courts may consider the feasibility of issuing a practice direction to the effect that all courts including the High Court while furnishing the copy of the judgment of conviction/dismissal/reversal of acquittal/dismissal of bail applications, may append a coversheet to the judgment informing the convict about the availability of free legal aid facilities for pursuing higher remedies. The coversheet may set out the contact address and phone number of the legal aid committee attached to the court for seeking appropriate guidance. Similar information may be made available in the notices issued to the respondents by the concerned courts in appeals against acquittal. The High Courts may on their webpage carry information about the legal aid facilities available in the State.
35. We place on record our appreciation for the assistance rendered by Mr. Vijay Hansaria, learned Amicus Curiae.
36. We also place on record our appreciation for Ms. Rashmi Nandakumar, learned counsel for her effective presentation of the case before this Court and for filing detailed written submissions with the relevant data. We grant liberty to NALSA to move appropriate applications in this matter in case any further directions are required in furtherance of the goals and objectives set out hereinabove.
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