Mumbai: To ensure that the Indian legal system promotes justice and ensures no citizen is denied a chance to justice over financial or other disabilities, the Indian parliament, through the 42nd amendment, had introduced Article 39A as a directive principle in 1976.
Subsequently, with the establishment of the National Legal Services Authority in 1995, it became the state’s constitutional obligation to ensure free legal aid to its citizens.
But close to three decades later, the condition of legal aid in the country leaves much to be desired. A detailed study on the conditions and availability of legal aid in the state of Maharashtra shows that less than 8% of total undertrials lodged in Maharashtra jails were able to access legal aid services between 2016 and 2019. The joint report by Prayas, a field action project of Tata Institute of Social Sciences, and the Fair Trial Fellowship Program of National Law University, has made several concerning revelations.
Prayas, a 30-year-old organization has been working in many central and district jails of Maharashtra. The Fair Trial project has also made a significant intervention in the state in a short period. The report, named ‘Legal Representation for Undertrials in Maharashtra 2018-2021’, has identified a lack of confidence and poor quality of legal aid services as some of the primary reasons for poor utilization of the legal aid service by pretrial detainees.
The National Crime Record Bureau (NCRB) shows that the large majority of those incarcerated are unlettered, and belong to marginalized castes and religious identities. Their social status has a direct impact on their capacity to negotiate with the criminal justice system.
“They”, the report finds, “end up spending more time than they should be in prison”.
For this study, spanning over four years, Prayas and the FTF fellows analyzed data based on interventions by Legal and Social Work Fellows in the eight prisons where the two projects worked, covering over 9,500 undertrials.
In their experience of closely studying the system, the researchers found that there was a gross lack of coordination among the different criminal justice institutions, including the legal service authority, the police, the courts and the prison department. The lack of coordination means the prisoner, who already lacks resources or a network, is dependent on the broken system for his freedom.
The report, co-authored by Medha Deo, Sharli Mudaliyar, Saugata Hazra, Anup Surendranath and Vijay Raghavan was released at an event in Mumbai on January 28. Supreme Court judge, Justice PL Narasimha, along with Justice Ramesh D. Dhanuka of Bombay high court, also executive chairperson of Maharashtra State Legal Services Authority (MSLSA) were present too.
The study, Deo and Raghavan explained in their presentations, was an outcome of the work that the organizations have been carrying out in eight central and district prisons in Maharashtra over the past years. Both the state prison department and state legal services authority have been working in tandem with the organizations, they claim.
The data studied throws some interesting trends. The study says of the total prisoners reached out to, at least 15% of them were under the age of 20 and 86% were under 40. Over 75% had not completed matriculation, the study found.
Not every undertrial, the study finds, needs a legal aid lawyer for their trial and bail applications. Of the total undertrial prisoners studied, close to 65% approached legal aid for a change of lawyers or support with their existing lawyers. This, as Raghavan pointed out during this presentation was both peculiar and telling of the quality of the legal help that defense lawyers were willing to put in for their clients, especially when they come from vulnerable social identities.
Another concerning revelation is that more pretrial detainees, despite security bail, were not able to leave the prison unless they complied with the good conditions. They needed legal aid lawyers to simply negotiate the bail conditions in court.
Cross-border prisoners, prisoners who have lost contact with their family members, and women prisoners often find it difficult to comply with bail conditions. The study also points to the lack of a system to find out the flow of data of undertrials brought in and released from prison through the year. The existing data, the report says, doesn’t capture the accurate flow data under the prison statistics. The absence of this data makes it harder to get a sense of the actual number of applications received and allocated to legal aid lawyers.
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