"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

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.

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

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]

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]

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.

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

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

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.

THE REALITY

• 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

• 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

• 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

• 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

AGENDA FOR ACTION

FROM BENEFICIARIES TO RIGHT HOLDERS: WORKING TOWARDS A CLIENT CENTRIC LEGAL AID SYSTEM

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

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

THANK YOU

FROM BENEFICIARIES TO RIGHT HOLDERS: WORKING TOWARDS A CLIENT CENTRIC LEGAL AID SYSTEM