Legal Aid
It is a well-known fact that around 70% of undertrials in India belong to economically marginalised sections and that it is undertrials that comprise a large proportion of India’s prison population (nearly 70% according to the NCRB Prison Statistics India 2018). Access to justice in India’s criminal justice system involves hurdles at multiple levels in terms of ineffective legal provisions, counterproductive regulatory frameworks and rampant malpractice and corruption. In such a system, effective legal aid lies at heart of the Constitution’s equal justice and rule of law commitments. Though an elaborate structure for legal aid, from the national level to the taluka, was set up through the Legal Services Authority Act, 1987, there have been significant concerns with the functioning of this system. It is a telling sign of the crisis that a significant majority of death row prisoners across the country, despite being overwhelmingly poor, opted for private representation in the trial courts by taking on huge debts in an attempt to avoid the legal aid system (Death Penalty India Report, May 2016). The effectiveness of representation, malpractices within the legal aid system, meaningful access, ineffective incentive structures have all been concerns that have been voiced in myriad ways. Other than the exceptional work carried out by the Commonwealth Human Rights Initiative, there are vast areas of research, analysis and intervention that still need attention.
As with our other areas of work, we seek to combine in-depth research and analysis with interventions in this area. Our work looks to develop frameworks of analysis to analyse the functioning of the legal aid system from multiple perspectives. Access to records and poor record keeping are often hurdles in this work but we are committed to ensuring that the most authentic data is used in analysing the functioning of the legal aid system. Our intervention in this area is through the Fair Trial Fellowship currently functioning in the districts of Pune and Nagpur. Working in collaboration with the Government of Maharashtra, we are seeking to build processes and adopt practices for effective legal representation within the district legal services.
Fair Trial Fellowship
With 30 Legal and Social Work Fellows in Pune and Nagpur, the Fair Trial Fellowship was established in 2018 as an intervention to provide legal assistance to undertrial prisoners in collaboration with the District Legal Services Authority (DLSA) and the Government of Maharashtra. By working closely with the state agencies and simultaneously developing processes and procedures that can improve legal aid, the Fair Trial Fellowship is a tremendous opportunity to learn and influence the system towards reforms.
The Fellowship has the following objectives:
Providing quality legal representation to undertrial prisoners and handholding the inmates through the legal proceedings.
Providing support to DLSAs and Taluka Legal Services Committees (TLSCs) and strengthening mechanisms for providing free legal aid to persons in custody.
Training, mentoring and building capacities of young professionals for improving quality of socio-legal services within the criminal justice system in the district.
The Legal Fellows are assigned cases of undertrial prisoners being represented by DLSA/TLSC panel lawyers and provide assistance in court hearings, legal research, drafting and prison visits (for client interviews) to the legal aid lawyer leading the case. Social Work Fellows focus on crucial socio-legal field work including visiting prisons to identify persons in need of legal aid, facilitating linkages between undertrials and DLSA/TLSC, working with families of undertrials and other stakeholders in the legal process.
Research
Audit of the Supreme Court Legal Services Committee
In 2018, we conducted an audit of internal processes of the Supreme Court Legal Services Committee (SCLSC) in order to evaluate its functioning and make recommendations to improve efficiency and effectiveness. We analysed the data available on applications for legal aid, interviewed staff to understand the administrative processes and interacted with prisoners and prison staff from four states on their perception of and experience with the SCLSC.
The audit revealed severe delays and bureaucratic hurdles that led to effective denial of the right to legal aid. We also found a severe underutilisation of the SCLSC, which was attributed to the various difficulties in the application process. Investment in improving these administrative processes by ensuring staff training, uniform procedures, and regular communication with both beneficiaries and lawyers would be an important step in guaranteeing access to legal aid.
Evaluation of District Legal Aid Systems
We are working on an empirical study evaluating the performance of the legal aid system at the district and taluka level. This study will focus on the utilization of legal aid by prisoners, the quality of representation and the administrative functioning of the legal services institutions. It seeks to quantify the utilisation of the legal aid system by undertrial prisoners, and analyse the structures that contribute to underutilisation of legal aid. This will involve evaluating the administrative processes followed by the legal services institutions and assessing the quality of representation provided by legal aid counsel in order to assess the failings that may be contributing to mistrust.