State legal aid and undertrials: are there no takers?

 

Abstract

While the crisis in India’s legal aid system is well documented, the extent of utilization of legal aid lawyers for representation in court has received little attention. In this article, based on existing public data, we seek to demonstrate the extent of underutilization of legal aid services among prisoners nationally. The data reveals that over a period of 4 years, between 2016 and 2019, only 7.91% of the undertrials admitted into prisons utilized the legal aid services they were entitled to. This phenomenon of underutilization raises uncomfortable questions about the performance of India’s legal aid system, particularly in the context of socio-economic vulnerability of prisoners. However, the limitations of the data mean that it is not possible to determine the reasons for such underutilization – whether underutilization is being driven by lack of awareness of legal aid or by socio-economically vulnerable undertrial prisoners choosing other options despite being aware of free legal aid.

I. Introduction

The crisis in India’s legal aid system is well documented and is often recognized as a major failing in our criminal justice system. The prominent issues that have emerged in the discourse on India’s legal aid system include poor quality of legal representation, insufficient payments to legal aid lawyers, rampant corruption, and poor administrative systems.1 However, the extent of utilization of state legal aid lawyers for representation in court has received very little attention. In this article, based on an analysis of existing public data, we seek to demonstrate the extent of underutilization of legal aid services among prisoners at a national level. The data reveals that over a period of 4 years, between 2016 and 2019, only 7.91% of the undertrials admitted into prisons utilized the legal aid services they were entitled to. This phenomenon of underutilization raises uncomfortable questions about the performance of India’s legal aid system, particularly in the context of socio-economic vulnerability among India’s prison population. While providing prima facie evidence of the existence of underutilization of legal aid, the article argues that the limitations of the data prevent any analysis of the reasons for such underutilization. As a result, it is not possible to know whether underutilization is being driven by lack of awareness of legal aid or if it is a consequence of socio-economically vulnerable undertrial prisoners despite being aware of free legal aid.

The Indian legal aid system provides legal aid, free of cost, to various marginalized groups for both civil and criminal cases, which can be in the form of representation in court or simply legal advice and assistance. Eligible beneficiaries may avail of legal aid in any case before trial courts, High Courts or the Supreme Court. This article largely focuses on concerns associated with legal aid in the form of the appointment of an advocate on behalf of undertrial prisoners in criminal matters.

For the purpose of this article, “underutilization” is when a significant proportion of persons entitled to free legal aid do not utilize these services. To empirically establish whether there is underutilization of the legal aid system, we first compute the utilization proportion, that is, the proportion of the population eligible for state legal aid that in fact utilize state provided legal aid services, as explained in Section-II. This article focuses on utilization among undertrial prisoners, as a population that is entitled to legal aid and would necessarily require legal representation.

To compute utilization of the legal aid system, we relied on publicly available data from the National Crime Records Bureau (“NCRB”) and the National Legal Services Authority (“NALSA”) from 2016 to 2019.2 As documented in Section-III, we calculated the utilization proportion by computing the percentage of prisoners who utilized legal aid in a year as per the NCRB from the number of “inmates admitted” in the year, as per the NCRB for the period 2016–2019. While NALSA does provide data on the number of legal services beneficiaries, this could not be compared with NCRB figures on the undertrial prisoner population due to variations in the methodology of recording data.

The statistics used have various limitations, as explained in Section-III, including that “legal aid” need not be restricted to representation in court, and prisoners other than those admitted during the period of analysis could utilize legal aid. But resolving both these specific concerns would only drive the utilization proportion lower: excluding cases of legal advice would reduce the number of persons provided legal aid, and including convicts or undertrials from previous years would increase the population of potential legal aid beneficiaries, which, in combination, would result in a lower utilization proportion. We have chosen to engage with the limitations in some detail both to emphasize the limitations of the claims being made, as well as to highlight the necessity of further research that could overcome these concerns.

The analysis of the data in Section-IV revealed that over a period of 4 years, between 2016 and 2019, only 7.91% of the “inmates admitted” into prisons utilized the legal aid system.3 This is indicative of widespread underutilization of the legal aid system by undertrial prisoners. The finding of such minimal utilization assumes significance in the light of the socio-economic vulnerability of a majority of the undertrial prison population, as contextualized in Section-V. The discussion on socio-economic vulnerability of India’s undertrial prison population is not to suggest or establish a causal relationship between such vulnerability and underutilization but instead to present a context within which such underutilization must be viewed. In this article, we argue that the extent of underutilization established in the context of such socio-economic vulnerability demonstrates the urgent need for the examination of the causes of underutilization.

The insufficient attention to the issue in academic research and policy work means that there has been little investigation of the reasons that could animate such massive underutilization. There have only been sparse anecdotal references to possible causes of the phenomenon, attributing it to either difficulties in accessing the legal aid system or mistrust of the legal aid system in response to its dismal quality.4 Existing research cannot provide an answer on the relative influence of either factor, which means we understand very little of the phenomenon itself. However, as we argue in Section VI, the possibility of either factor so heavily impacting utilization is a serious cause for concern.

If access to legal aid is so limited that less than 10% of the eligible beneficiaries are utilizing its services, it is indicative of the extent of the failure of the system to reach the persons it is intended to serve. However, we argue that the second possible factor of mistrust of the system has received even lesser attention and is equally, if not more, concerning in its implications for the legal aid system at large. If underutilization occurs in spite of sufficient access to and awareness of legal aid, it means that a large proportion of undertrial prisoners would choose not to rely on state legal aid despite their socio-economic vulnerability. Such an understanding of underutilization would require moving beyond the limited framework of quality assessment that dominates discussions on state legal aid in India.5 This framework of quality assessment is limiting because it focuses only on the performance within cases that have come into the state legal aid system and is not interested in the perspective of persons who choose not to utilize state legal aid. Focusing only on quality assessment without an in-depth assessment of underutilization and its causes would severely inhibit the designing of comprehensive and effective reform.

Finally, in the light of the various limitations of existing data in computing underutilization and understanding its causes, we propose the need for and methodology for future research in Section-VII. Although the exercise attempted in this article has limitations, the scale of underutilization in prisons it reveals ought to precipitate further research that overcomes these limitations and investigates the factors that influence this phenomenon.

II. Measuring underutilization

The first step in examining the existence of underutilization of the legal aid system is to empirically determine the utilization of legal aid services. While there are allusions to the issue of underutilization in existing literature, these have remained largely anecdotal or restricted to unrepresentative and limited populations.6 This article represents the first attempt to measure the extent of utilization at a national scale, by analysing the proportion of utilization across the undertrial prisoner population. We make no claims of the reasons animating this phenomenon, and only discuss possible influencing factors in Section-VI.

We refer to this measure of utilization as the “utilization proportion”, that is, the proportion of persons entitled to state-provided free legal aid services who in fact utilize it. Computing the utilization proportion requires comparing two data points: the population eligible for legal aid and the number of such persons that utilized state-provided legal aid services. Prisoners represent the ideal population for such an analysis: unlike other categories such as women or disabled persons, all members of the population would require legal representation for their criminal trials, and all are eligible for legal aid by virtue of their status in custody. The focus of this article is on undertrial prisoners, as persons comprising7 a majority of the prison population, while also necessarily requiring legal representation for their trials, unlike, for instance, convicts who could choose not to appeal.8

At present, the NCRB and NALSA publicly release reports that provide cumulative state and national data compiled from local prisons and legal services authorities on these data points. The NCRB has, since 1995, annually released Prison Statistics India (“PSI”) Reports providing data on the prison population of India.9 NALSA has also released statistics and reports of its work in legal aid and legal services since 2016, such as the number of legal services beneficiaries under various categories.10 From these reports, it is possible to calculate the utilization proportion by comparing the undertrial population to the number of prisoners that utilized legal aid services.

It is important to note that there are concerns about reliability with the data that is currently published,11 such as the lack of background information provided about the data. The variables are not defined, which makes it difficult to determine their significance. For example, the NCRB provides a figure of “inmates admitted” but neither defines nor provides the methodology for computing it. Concerns about the lack of uniformity in the methodology of collecting, recording and processing data across all districts must also be factored in while assessing the reliability of the data.12

An ideal analysis of underutilization would rely on the raw data that forms the basis of such reports, which can provide information on prisoners and their actual utilization of legal aid services in order to determine the utilization proportion. However, such data are presently unavailable publicly. The methodology adopted in the present article has inherent limitations in the light of its reliance on cumulative government statistics, but remains the best available source for such a discussion, in the absence of access to such raw data.

Considering the data that is available, we have defined the utilization proportion as the percentage of prisoners who utilized legal aid in a year as per the NCRB from the number of “inmates admitted” in the year as per the NCRB. Although there is data from NALSA that is relevant for this discussion, the reasons for not utilizing it are outlined in the subsequent section. In the next section, we explain the different sources of data that are available and their specific limitations for the exercise we are undertaking. We have chosen to engage with the limitations in some detail both to emphasize the limitations of the claims being made, as well as to highlight the necessity of further research that could overcome these concerns.

III. Contextualizing the data and its limitations

In this section, we discuss the data that are available for computation of the utilization proportion and outline the reasons for choosing the statistics relied upon for the present analysis. It first documents the data available on the undertrial population in prisons, highlighting the reasons for using the figure of “inmates admitted” from the NCRB PSI Report. It then presents the data available on utilization of legal aid by undertrial prisoners, presenting concerns with the NALSA data and outlining the reasons for relying on the data from NCRB on utilization of legal aid by prisoners in order to calculate the utilization proportion.

Determining the undertrial population

The first variable is the undertrial population of the prison, of which the only source of data is the PSI Report released by the NCRB each year. Although the “undertrial population” figure is repeatedly referred to in the PSI Report, as the Report itself in its glossary and other authors13 have pointed out this figure is only a “stock” number. This “stock number” is the undertrial population as on 31st December each year.

For example, if a particular prison had an undertrial population of 2000 prisoners on 31 December 2018, it does not mean that only 2000 prisoners entered that prison in 2018. There could be, for example, 5000 prisoners that entered the prison at some point in 2018, but 3000 were released on bail or for other reasons by 30 December 2018, leaving 2000 undertrial prisoners on 31st December of that year. Therefore, the figure in the PSI Report is a “stock” figure and not a “flow” figure. The undertrial population for that year that could have potentially accessed legal aid in that year corresponds to the “flow” of the undertrial population in the prison, meaning it includes any undertrial prisoner who was already in prison from previous years and those admitted into the prison in that year pending trial.

It seems possible to estimate this figure using data from the PSI Reports. Since 2016, the PSI Reports have published data on the number of “inmates admitted” in each state. Therefore, we can calculate the undertrial population “flow” figure from 2016 to 2019 (the latest available PSI Report).

The second column lists the figure that is published as the “undertrial population” of that year but is actually only the stock figure at the end of that year. The correct figure, by our estimation, is actually the figure in the final column, which is the sum total of all “inmates admitted” in that year and all undertrials that would have been present in the prison from the previous year (from the stock figure of the previous year’s PSI Report).

While this is our best estimation of the relevant figure, without access to the primary data or details of the methodology adopted by the NCRB, it is not possible to be certain of its accuracy. For instance, as per this estimation, if the number of undertrials released in the year is subtracted from the flow figure, we should arrive at the stock figure of that year. But when we attempted this calculation, it did not add up.14 We could not determine the source of this error and would be unable to do so without access to the primary data. Using the raw data, we are able to determine how each figure was calculated and then be able to compute the undertrial flow figure accurately.

For the purposes of this article, in calculating the utilization proportion, we have therefore used the figure of “inmates admitted in the year”. Although the term “inmates admitted” has not been defined, we presume that it would largely, if not solely, represent undertrial prisoners. We argue that this is a reasonable presumption in the light of the high proportion of undertrials compared to other types of prisoners, comprising 70% of the “total inmates” stock figure as per the NCRB,15 making it likely that the proportion of undertrials being admitted would also be far higher than other categories, such as convicts and detenues.16 Another group that could be included in this figure are prison transfers though they are unlikely to constitute a majority of “inmates admitted” due to limited numbers: in 2019, only 1,435 convicts and 5,728 undertrials were transferred to prisons in other states.17

We chose to restrict our analysis to this figure because of the difficulties in identifying the flow figure as well as the complexities in computing utilization of legal aid when compared with the flow figure of the undertrial population. There is no method to determine if the undertrial prisoners admitted in previous years utilized legal aid in any of their previous years of incarceration. “Inmates admitted”, on the other hand, could only have accessed legal aid in the year under consideration (on being admitted) and so can reasonably be compared with the number of prisoners who utilized legal aid in that year. The process for analysing the utilization proportion using the flow figure of undertrial population, which is not possible from the data currently available, is detailed in Section-VII on future research.

Number of prisoners that utilized legal aid

The second variable in this comparison is the number of undertrial prisoners who accessed the legal aid system in that year. Again, this particular figure is difficult to establish, but there is data available that can be used to estimate this. There are three sources that publicly release data related to this: the NCRB, NALSA and the State Legal Services Authorities (“SLSAs”). Before discussing specific sources of data, it is important to clarify the process of legal aid for undertrials.

Process of legal aid for undertrials

All undertrials are entitled to legal aid by virtue of being in custody, which can be in the form of representation in court or legal advice.18 If an undertrial is unrepresented, there is an obligation on the magistrate to inform them of their right to legal aid.19 As with other legal aid beneficiaries, they may approach the District Legal Services Authority (“DLSA”) or the Taluka Legal Services Committee (“TLSC”) to appoint a panel lawyer on their behalf.20

To facilitate this process, there are legal services clinics in jails that prisoners can visit.21 These clinics have paralegal volunteers, either fellow prisoners or civilians, who will help them with their applications for legal aid or any other assistance they can provide. Lawyers empanelled with the State Legal Services also visit jails, usually on a weekly basis, and similarly assist prisoners by providing information or advice on their case or any other legal matters.22 Some prisons maintain records of these visits and interactions with prisoners.23 Similar data is maintained with the DLSAs.24 It is worth mentioning that while this is the official process, it may not be effectively implemented across all prisons and states, but only serves as an indication of the manner in which undertrial prisoners could access legal aid.25

In addition, under Section 304 of the Code of Criminal Procedure, 1973, Sessions Courts can appoint a lawyer on behalf of an accused who cannot afford one.26 The procedure of recording these appointments is not clear, and it remains uncertain if the publicly available statistics on legal aid account for these cases. Presumably, such cases are outside the scope of the present study and remain a limitation of the present analysis.

Available data

The primary concern with the present data is that the different authorities, with the exception of the Mizoram SLSA, fail to specify the nature of services provided to the beneficiaries in their statistics on beneficiaries of legal services, that is, whether it is legal representation or simply legal advice. It is worth mentioning that while there are other SLSAs that provide information on the number of beneficiaries who have been assigned panel advocates, this information is either not within the time period of the present analysis or not further disaggregated by case type and thus includes civil cases.27

The NCRB in its data on “rehabilitation and other support to prisoners” provide state-wise data on the number of persons that were provided legal aid in that year. Legal aid here is not defined and could include both representation in court and legal advice/counselling rendered in the legal services clinics in prisons. In addition, the prisoners that used legal aid could include both undertrials and convicts. There is no indication of the process followed by prisons in compiling this data in order to arrive at these figures.

Since 2016, NALSA has provided state-wise figures on the number of legal services beneficiaries in custody.28 The data on legal services beneficiaries seemingly does include legal advice – for example, the data for 2016 to 2017 specifies that it is a “statement showing the number of persons benefited through legal services and advice”.29 Since 2017, it has also provided the figures for the number of persons who visited the legal service clinics in jails across each state and the number of those persons who provided assistance.30

The primary issue with using NALSA data for the present exercise is that this data is presented in terms of the financial year, while NCRB data is in terms of the calendar year. This variation makes cross-tabulation and analysis difficult. However, there are other difficulties in interpreting the data from NALSA. The statistics on legal services beneficiaries and jail clinics do not correspond, despite the fact that both figures are expected to include legal aid and legal advice, with no explanation provided for why that may be.

In the light of all these discrepancies, we attempted a comparison of the NCRB data with the data from SLSAs and NALSA in order to locate the source of the variation. SLSAs provide data similar to NALSA but in varying time frames and across different variables. Since the data from NALSA was financial year wise, we compared the SLSA data for the five states where this information was categorized by calendar years (Chandigarh, Delhi, Jammu & Kashmir, Rajasthan and Sikkim) with NCRB data for 4 years.31 Other states either did not provide statistics within the relevant time period or did not further disaggregate by case type and thus included civil cases within the data.32 The data, as presented in Appendix A, reveals that the figures fail to tally up on each variable for all five states. There is also no indication of where this discrepancy may arise from as neither body clarifies the source of their data nor the method of computing it.

For the NALSA data, since we could not directly compare it with NCRB statistics because of the difference in time period, we instead compared the aggregate figures for 4 years, 2016 to 2019. The NCRB has only published PSI Reports up to the year 2019, while NALSA has only released data on the number of legal services beneficiaries in custody since Financial Year 2016–17.33 We have excluded the figure of the number of persons assisted by jail clinics since it is only available from Financial Years 2017–18. As per NALSA, 641,616 persons in custody were assisted from the Financial Years 2016–17 till 2019–20, while NCRB’s data states that 511,498 prisoners were provided legal aid from 2016 to 2019.

While of course the figure cannot tally up perfectly since the time periods vary between both variables, the discrepancy is quite large. The state-wise figures, presented in Appendix B, reveal varying disparities. States that have assisted fewer prisoners show small variations, such as Himachal Pradesh, which assisted 1843 persons as per NALSA, and 1583 as per NCRB, or Odisha, which assisted 3395 persons as per NALSA and 2617 as per NCRB. But then there are many states with vast unexplained differences such as Delhi, which assisted 63,604 persons as per NALSA and 200,985 as per NCRB, and Madhya Pradesh, which assisted 131,309 persons as per NALSA and 17,610 as per NCRB.

In data available from SLSAs, Mizoram is one state that specifies whether legal services beneficiaries in custody were provided legal aid or advice/counselling during the time period under consideration in the present analysis.34 However, the information is recorded as per the financial year. Therefore, we compared the data from the Mizoram SLSA and NCRB in aggregate for 4 years, as presented in the Appendix C. However, with the low number of prisoners assisted, Mizoram falls within the category of states that have smaller discrepancies and does not help in understanding the discrepancies in larger data sets.

One issue that stands out when examining this data can be illustrated with the example of Delhi and Madhya Pradesh mentioned above while discussing the NALSA data. Within Delhi, the total from NCRB far exceeds that of the data from NALSA, but it is the opposite with Madhya Pradesh. This is a persistent issue when comparing the data on legal aid from different authorities and even when comparing between NALSA statistics on legal services beneficiaries and persons assisted by jail clinics. There is no visible pattern to the variations that might help explain the source of the inconsistency.

It is possible that this may simply be a result of errors in compiling information: that each state or even each district, adopts its own method for computing these figures and that results in variations in the data. Ultimately, it highlights the need for both bodies to provide clarifications on the source of the data they provide as well as the methods of computing, which might help explain such stark disparities in data.

In the light of these variations and discrepancies, we decided to focus on one figure to compute the utilization proportion: that of the NCRB statistics of prisoners provided legal aid. We chose the NCRB figures over the NALSA data for two reasons: first, it would not be possible to compare the “inmates admitted” figure from NCRB (of which the only source is NCRB) with the NALSA data due to the time period variation, that is, the NCRB data being recorded as per calendar year and NALSA data being recorded as per financial year. Second, when the figures vary so widely between the two sources, with no indication of the collection process or limitations of either source of data, it would be more appropriate to cross tabulate data from the same source. However, in the interests of being comprehensive, in Appendix D we have presented the utilization proportion in aggregate using the NALSA data for 4 years, from 2016 to 2019.

In summary

Thus, in order to establish the proportion of undertrials that utilized the legal aid system in the year, we chose to compare two figures: the number of “inmates admitted” in the year as per NCRB and the number of prisoners provided legal aid in the year as per NCRB. While there are limitations to relying on these two data points, we believe these do not take away from the conclusions of this piece. In summary, these limitations include:

  1. The number of “inmates admitted” in the year does not include the complete prison population that could potentially have accessed the state legal aid system in that year. That population would cover any prisoner in the prison in that year, including convicts and undertrials from previous years, who could choose to utilize legal aid in that year.

  2. Legal aid need not mean only representation in court and the data could include those prisoners who visit clinics in jails for advice or counselling that does not result in the appointment of a panel lawyer for the prisoner.

However, neither of these limitations impacts the conclusions of this article on the phenomenon of underutilization. If these limitations were addressed, it would only serve to lower whatever utilization proportion the data reveals: including convicts and undertrial prisoners who were previously admitted would increase the prison population under consideration; conversely, restricting the definition to representation in court, if it has any impact, would only lower the number of prisoners provided legal aid (by excluding those who were only provided legal advice). In this way, the proportion of utilization would only drop further. Thus, the data we present is the best-case version for the utilization proportion of legal aid in prisons, and as we will show, this best case is cause for serious concern.

IV. Analysis of the data

This section presents the data on the utilization proportion, calculated as the percentage of prisoners provided legal aid from the number of “inmates admitted” each year. The analysis covers 4 years, from 2016 to 2019, in which data on “inmates admitted” are available from the NCRB. The data available show that of the total number of “inmates admitted” each year, less than 10% of the prisoners utilized the legal services they were entitled to.

Before proceeding further, please note that 2016, as the first year where data on “inmates admitted” was included, has several errors in the data on the number of “inmates admitted”. Haryana, Himachal Pradesh, Mizoram, West Bengal, Dadra & Nagar Haveli and Daman & Diu did not furnish data. In addition, Jharkhand states that “inmates admitted” in that year were 870, likely an error since this figure for Jharkhand is 13,508 in 2017, 20,629 in 2018 and 45,937 in 2019. This particular error is one possible explanation for the utilization proportion being so high in 2016.

While the overall figures are worryingly low in and of themselves, the state-wise data presents a starker reality. For this section of the analysis, we included only 19 states in which the number of prisoners admitted was greater than or equal to 10,000, in at least three out of the 4 years. West Bengal has been excluded because it only submitted data on “inmates admitted” in 2017.35

The average utilization proportion for these 19 states is marginally higher than the national utilization proportion, at 16.14% for 2019, 14.19% for 2018 and 9.77% for 2017. While 2016 has the highest average utilization proportion in 4 years, it is worth noting that this is heavily skewed by erroneous data from Jharkhand.36 If Jharkhand is excluded in calculating this figure, then the average utilization proportion for 2016 drops down to 9.91%.

The average utilization proportion is higher because of a select number of high performing states. Delhi stands out for consistently achieving high utilization proportions in all 4 years, with a utilization proportion over 100% in 2019 (which could be explained by additional populations of convicts and undertrials from previous years accessing legal aid). While Kerala had an unexceptional utilization in 2016 at 17.16%, it increased to 42.16% in 2017 and then 82.69% in 2018. However, the proportion dropped in 2019 to 32.90%. It seems the high proportions from these two states are responsible for the average proportion for 2018 and 2019 being above 10%.

There are six states, other than Delhi and Kerala that show a utilization proportion above 10% in at least one out of 4 years. It is worth noting that Chhattisgarh is the only state in this category that has a utilization proportion above 20%, at 23.06% for 2018 and 29.93% in 2019. NCRB records show that Assam provided legal aid to no prisoners in 2017, which is possibly, an error in reporting.

There are five states where the utilization proportion is between 5% and 10% for at least one year and not above 10% in any year.

Finally, there are seven states where the utilization proportion is below 5% for all 4 years. The abysmal utilization of legal aid over a four-year period raises significant concerns about the structure and delivery of such services.

V. Socio-economic vulnerabilities of undertrial prisoners

The data, with all the accompanying limitations, reveal that in aggregate over a period of 4 years, 2016 to 2019, only 7.91% of the undertrial prisoners admitted into prison utilized the legal aid they were entitled to. This is preliminarily indicative of the underutilization of legal aid services among the prison population. The minimal utilization of legal aid needs to be examined in the context of another reality of India’s criminal justice system – the widespread socio-economic vulnerability of India’s prison population.

The effort here is not to suggest a causal relationship between the socio-economic vulnerability of incarcerated persons and the underutilization of state legal aid. We examine socio-economic vulnerability in Indian prisons in some depth in order to make the argument that underutilization needs to be taken a lot more seriously than it has been in academic and policy discussion thus far. Looking at these two realities of India’s criminal justice system side-by-side – one, the socio-economic vulnerability of the prison population, and two, the extent of underutilization of state legal aid – ought to spur urgent research on the causes for underutilization among undertrials. Towards making this case, the following section presents existing research on the underlying vulnerabilities among the prison population as well as the factors that lead to the over-incarceration of such socio-economically vulnerable undertrial prisoners.

Prisons in India are overcrowded,37 and undertrials constitute 69.05% of the prison population as on 31 December 2019, as per the NCRB’s latest PSI Report.38 Based on the data available from the PSI Report, around 70% of the undertrials in 2019 were socially vulnerable: approximately 29% were illiterate, and 41% had not completed class X, while 72% of the undertrials belonged to socially vulnerable categories of Scheduled Castes, Scheduled Tribes or Other Backward Classes.39 Muslims are overrepresented in prisons, comprising 20.43% of the prison population while constituting 14.23% of the general population as per the 2011 Census.40


While the NCRB does not provide information on the economic profile of prisoners, empirical studies set up in specific prisons (not limited to undertrials) have presented evidence of the economic vulnerability of prisoners.41 Specifically, some studies found that a majority of prisoners, at the time of their arrest, earned a monthly income in the range of Rs. 1000 to Rs. 5000 (in 2010 and 2011) or belonged to a family of “low-income level”.42 In addition, there are multiple studies set among the civilian population that establish a link between social vulnerabilities of caste or religion and economic vulnerabilities, finding that socially vulnerable groups in India are more likely to be impoverished.43 Cumulatively, the data indicates that a majority of undertrial prisoners are both socially and economically vulnerable.

The fact that our prisons comprise primarily persons who have not been convicted of any offence, with a majority belonging to socio-economically vulnerable categories, is a result of a confluence of factors. A range of legislations criminalize economic impoverishment and targets marginalized communities. For instance, beggary laws across different states criminalize “ostensible poverty” (the criminalization of visible displays of poverty in public spaces such as begging) and the Immoral Traffic (Prevention) Act, 1986, is used to target sex workers.44 Many of these laws are used to target vulnerable communities such as hijras and “denotified tribes”.45 Impoverished and marginalized groups often bear the brunt of arbitrary arrests, detentions and custodial violence46 while procedural protections built into the law through medical practitioners and magistrates are often violated.47 The range of structural barriers plaguing the system, including indiscriminate arrests, a restrictive bail regime and delays in investigations, all result in the large proportion of socio-economically vulnerable undertrials in India’s prisons.48

Further worsening the situation, an overburdened court system resulted in massive delays in trials, leading to long periods of incarceration.49 In addition, nearly a quarter of those that remain in prison after accounting for release on bail, release on appeal, and extradition are eventually acquitted.50 While there are no data available on the ratio of acquittals at the appellate court level, one indication of its prevalence is a finding in the Death Penalty India Report (“DPIR”) that 29.8% prisoners sentenced to death between 2000 and 2015 were acquitted either by the High Court or the Supreme Court.51 Cumulatively, this data reflects that a troublingly large proportion of prisoners unjustly languish in prison, despite being ultimately found innocent of the offence they are accused of.

In this way, at each step the system fails those who cannot afford the long and expensive processes of combating its excesses. While it is clear that there is a confluence of factors responsible for this dilemma, access to quality legal representation is a key element in addressing these documented failings of the criminal justice system. The support of effective and affordable legal assistance could help in guaranteeing fair trial rights by protecting persons from police abuses, in securing release on bail and in ensuring that the trial is heard on a timely basis, though it is by no means the only solution. In this way, a well-functioning legal aid system is integral to addressing these persistent concerns plaguing the criminal justice system. However, if the legal aid system is looking at the minimal utilization presented in this article, it raises serious questions about the structure and impact of the existing access to justice system.

Without suggesting any causal relationship, the underutilization of state legal aid established in Sections IIIV needs to be seen alongside the socio-economic vulnerability discussed in this section. Looking at these two realities, raises an obvious and urgent question – why are incarcerated persons with significant socio-economic vulnerabilities not accessing India’s state legal aid system? The current state of data and research is in no real position to answer that question. However, any meaningful reform of India’s state legal aid system in the criminal justice system is a non-starter without first finding credible answers to that question. There have been some indications of the factors that might be at play, as discussed below, but there is no empirical evidence on the extent of their influence. Identifying the causes for underutilization is crucial because it would have a direct impact on the design and prioritization of reforms of the legal aid system.

VI. What this means

The data reveals that over a period of 4 years, only 7.91% of largely socio-economically vulnerable “inmates admitted” into prison utilized the legal aid they were entitled to. It would be stretching plausibility to argue that the remaining 92.09% could all comfortably afford private lawyers. While the undertrial prisoner population, primarily comprising persons belonging to impoverished and marginalized communities,52 is not utilizing the legal aid system to this extent, it raises questions about whether the system is achieving the purpose for which it was created. With presently available data, it is not possible to establish the reasons for such underutilization. However, existing literature does briefly allude to possible factors, providing some guidance that can help us better understand the implications of this phenomenon.

Discourse on the underutilization of the state legal aid system has remained insufficient in both academic research and policy work. There exist brief allusions to the reality that a minimal number of prisoners rely on the state legal aid system, without any attempt to measure the extent of underutilization.53 The few reports that do engage quantitatively with the phenomenon focus on limited samples or on specific groups and therefore provide no indication of utilization across the national prison population, which this article attempts to do.54 In addition, while there are brief mentions of the factors that could be influencing this phenomenon, no attempts have been made to empirically investigate the reasons for this phenomenon.55

Amongst the sparse references to factors influencing this phenomenon, Dr. Muralidhar says:

The reasons could be general lack of awareness of the availability of legal aid, the belief that a person who gets help for ‘free’ is disabled from demanding quality service and thirdly, the disinterestedness of lawyers and legal aid administrators in providing competent legal assistance.56

However, engagement on the causes and impact of this phenomenon has remained anecdotal, with a near-complete failure to distinguish between these varied reasons for underutilization and to independently assess the extent of influence of each factor.57 We would classify the influencing factors highlighted by Dr. Muralidhar into two broad categories: the inaccessibility of the legal aid system and the unwillingness of eligible persons to utilize such services in the light of its poor quality. We argue that either factor contributing to such large-scale underutilization raises concerns for the functioning of the legal aid system as a whole and ought to precipitate fundamental reimagination and reform.

Outside of the context of underutilization, the issue of inaccessibility has received extensive coverage, with much of academic and policy literature on the legal aid system generally highlighting issues that impede prisoner’s awareness of or access to the system. These issues include gaps in the functioning of legal services clinics in jails, jail visiting lawyers, prisoners being unaware of who their lawyer is or of their right to legal aid and difficulties in accessing legal aid services because of administrative gaps in processing applications.58 However, existing literature in this regard gives no indication of the extent to which this lack of awareness and access might be influencing utilization of state legal aid. Any such quantitative engagement on the issue of access and awareness has focused on the number of prisoners that do not have legal representation and thus require legal aid, failing to compute the underutilization of legal aid among the rest of the prison population and the role that lack of awareness or access may have had on any such underutilization.59

While there is no way to establish this based on existing research, if only 7.91% of “inmates admitted” are utilizing legal aid services largely due to lack of awareness and difficulties in access, it would reveal a large-scale failure of penetration of legal aid services within Indian prisons. In this way, the framework of underutilization provides an important measure of the accessibility of the system, which could then facilitate further investigation of the failures that could have resulted in such minimal utilization. However, it first requires establishing the extent to which such underutilization is a result of incarcerated persons in India being unaware of or unable to access their right to free legal aid.

However, the second possible factor of prisoners choosing not to avail legal aid, despite being aware of their rights has remained understudied. We argue that this concern is equally, if not more important, in assessing the performance of the legal aid system. Here, we understand the lack of demand as the choice of eligible persons not to utilize the state legal aid system, in spite of sufficient awareness of and access to the system.

We must first consider the reason that such a socio-economically vulnerable population would choose to eschew free legal services in favour of private representation, which they would likely find difficult to afford. Limited anecdotal evidence indicates that this is a result of a loss of faith in the system in the light of perceived corruption, inefficiency and poor quality of services provided.60 If this is true, the implications of this are manifold.

At one level, the rejection of the provision of free legal aid services by such a vulnerable population would likely have a devastating impact on many prisoners and families. The findings of the Death Penalty India Report, a socio-economic survey of prisoners sentenced to death in India, published in 2016, are illustrative of this concern. The study revealed underutilization of state provided legal aid services among prisoners sentenced to death, with 70.6% represented by private lawyers in the trial court and only 36.6% represented by legal aid lawyers.61 But 70.6% of the prisoners sentenced to death who were represented by private lawyers were also economically vulnerable.62 The families of these prisoners borrowed money or sold assets like their houses, land, jewellery, livestock, or other belongings, in order to pay for this private legal representation, ultimately impoverishing themselves and remaining in debt for years after.

Of course, this need not be representative of the criminal justice system at large, as there may be other considerations that influence the choice of legal representation in a case that could result in a death sentence. An anecdotal account by CHRI based on a 2018 study in Rajasthan raises the possibility of its prevalence in other prison populations.63 Even without definitive evidence of the prevalence of such lack of demand, the extent of underutilization established in this article necessitates a deeper assessment in this direction.

The in-depth study of underutilization, in terms of lack of demand, provides an important framework to analyse the failures of the legal aid system. While awareness of and access to legal aid is a serious concern, if underutilization occurs despite sufficient access and awareness, it means that a large proportion of vulnerable persons would choose further impoverishment rather than trusting their fate to the state legal aid system. This is indicative of the scale of the failings of the system, but also provides a different roadmap for reform.

Although issues of the quality of the system and of the panel's lawyers have been the subject of repeated criticism,64 this evaluation has focused on the performance of cases that have reached the state legal aid system.65 We argue that the implications of such a lack of demand are that any quality evaluation of the system also requires engaging with potential beneficiaries unwilling to use the state legal aid system. Only through such an analysis can a complete picture of the gaps in the legal aid system, both perceived and factual be identified and accordingly addressed. While ensuring the quality of legal services provided to people who approach the system is important, of equal importance is ensuring trust in the system among persons who are entitled to the services and have not utilized it. This is to prevent the exploitation and impoverishment that can follow from such rejection in favour of private representation, which one can argue is the very purpose of state legal aid services.

In conclusion, we argue it is important that we distinguish between barriers to access to justice, on the one hand, and the lack of demand for state-provided free legal aid on the other, as the implications of each factor on the system at large substantially differ. We make no claim on the relative prevalence of either factor, as there is no data available that could help answer that question. We simply argue that studying the phenomenon of underutilization, as well as its influencing factors, is an integral component of the effective reform of the legal aid system. While there has been an intuitive sense in existing research that this is a concern, the lack of empirical research on this aspect prevents any real understanding of the issue. There is an urgent need to conduct quantitative and qualitative empirical research in order to develop an in-depth understanding of the utilization of legal aid or the lack of it.

VII. Need for further research

The primary purpose of this article was to provide prima facie evidence of the existence of underutilization of state-provided free legal aid services and to make the case for further research in the light of these preliminary findings. It is integral that much deeper quantitative and qualitative research be undertaken, which both overcome the limitations of the data presented in this article and conducts an in-depth investigation of the factors influencing the phenomenon. Towards this end, in this section we suggest a methodology for, and the benefits of such future research. We focus on research that would engage with the issue of lack of demand, as contextualized in Section-VI, in the light of the absence of empirical research on this issue, particularly in contrast to issues of access.

The first step would be to overcome the specific limitations of the data presented in this article in order to accurately compute the utilization proportion. Presently, a major concern is the reliability of statistics released by both the prisons and the legal services authorities, in the light of last mile variations in collecting, recording and processing data, as well as the absence of transparency in the methodology. Therefore, accurate calculation of the utilization proportion requires access to the raw data used to prepare the NALSA and NCRB reports.

Prisons across the country generally maintain an “undertrial register” that records details of the undertrials in prisons and the cases they are involved in.66 Legal services authorities at the district level maintain registers that track the cases in which a panel advocate has been appointed on behalf of a beneficiary.67 By cross tabulating the undertrial register from prisons and the register recording appointment of panel advocates from DLSAs, the utilization proportion can be accurately calculated. Doing so would address the concerns with the data utilized in this article in terms of identifying the relevant figures of legal aid utilization and the undertrial population.

In addition, this exercise allows the utilization proportion to be computed as against the undertrial flow figure. Such cumulative analysis across several years is useful as a year-wise analysis may not capture the reality of the appointment of legal aid lawyers. It is not necessary that an undertrial prisoner utilizes legal aid on being admitted to prison or even in the first year. For instance, one factor that could be influencing this decision is the length of trial, that is, while a prisoner may be able to afford a lawyer in the beginning of the trial, if the trial continues for a long time, then the prisoner may find that they can no longer afford a private lawyer and may be forced to switch to the legal aid system. Therefore, by studying the data cumulatively across several years, one would be able to determine at what point in the period of incarceration undertrials utilize the legal aid system.

This process would also allow us to study the phenomenon in more depth. With the data presently available, we are still grappling with determining whether the legal aid provided involved the appointment of a lawyer or was simply legal advice. In this context, we can say very little about the utilization of legal aid services. Using the data from both registers and cross-referencing this with data from court orders, we can study representation at different stages of the pre-trial and trial process and more systematically examine the performance of the legal aid system.

One important issue that should be studied is representation during the first productions, and in the pre-trial stage of the proceedings.68 Using primary data from these different sources, it would be possible to analyse the representation at each stage of the pre-trial and trial process including the first production, the remand proceedings, the framing of charges, and at different stages of the trial itself. It would also allow us to evaluate the impact of the length of different proceedings on the representation. It is important to be able to move beyond the simple binaries of whether a prisoner is represented or not, and whether the representation was by a private lawyer or a legal aid lawyer. For instance, it allows us to examine when prisoners change from private representation to legal aid and vice versa and evaluate factors that influence this change. It is also necessary to examine the representation at the appellate level, studying the capacity of convicts to afford legal representation for appeals and the accessibility and utilization of legal aid for this purpose. Such a study could therefore examine the links between legal representation and each stage of the criminal trial and appeal process.

One aspect that needs greater engagement is an analysis of outcomes as against legal representation.69 Outcomes are not necessarily representative of the quality of legal representation, as there are a range of factors that may influence decision-making at each stage of the pre-trial and trial process. However, a more in-depth analysis that considers the outcome within the context of the performance in cases, may be instructive on the quality of representation provided by lawyers, both for private and legal aid. For example, it would be very revealing to compare the proportion of bail applications filed by private lawyers and legal aid lawyers in the same category of offences. While the outcomes themselves, devoid of context, would tell us very little about the quality of representation, examined in conjunction with performance, they could be instructive in understanding the perception of the quality of state-provided legal aid counsel and the consequent links with underutilization of legal aid services.

Such a study must also develop socio-economic profiles of undertrial prisoners who utilized state-provided legal aid services, as well as those who did not. One goal is to identify the factors that influence the utilization of legal aid services, such as the undertrial’s economic profile, domicile status, and their relationship with their family. Prisoners who do not have families to help coordinate with private lawyers may be forced to turn to the legal aid system.70 It is also important to locate the socio-economic context of prisoners who reject legal aid, to determine their capacity to afford private representation and the financial impact that paying for this private representation had on them and their family. This exercise will set a socio-economic context for the utilization of legal aid services, towards understanding the circumstances that govern the choice of representation and that lead to the utilization or rejection of this welfare service. An in-depth study of underutilization requires qualitative and quantitative analysis, engaging with all stakeholders: the prisons, the legal services authorities, paralegal volunteers visiting prisons, as well as prisoners and their families.

While there is an intuitive and experiential narrative about the phenomenon of underutilization, there is undoubtedly a need to study it comprehensively. It requires evaluating factors that drive prisoners access legal aid or private representation, perceptions of the quality of legal aid, delays in the appointment of legal aid lawyers, the performance of prison clinics, the capabilities within the legal services authorities that influence their effectiveness, and the interaction of panel lawyers with the clients they represent. Of course, many of these issues have been studied and discussed previously.71 However, a framework for underutilization requires examining these issues through a different lens: not only examining these problems individually but also assessing their quantitative and qualitative impacts on the perception of the system by those who use it as well as those who reject it.

VIII. Conclusion

Undertaking a comprehensive analysis of underutilization using primary data from prisons and legal services authorities along with intensive qualitative work will provide us with a necessary and deeper perspective of the problems plaguing the legal aid system towards reforming it more effectively. While the flaws of the legal aid system are widely acknowledged, after more than three decades of this system, a utilization ratio in the range of 10% of the undertrial prisoners in the country must deeply concern us. If the most marginalized and vulnerable sections of our society within prisons are either unable to access or are shunning the legal aid system in such large numbers, it must trigger very serious conversations on the design and performance of legal aid services along with the institutional dynamics between police, prisons, courts and legal aid authorities. A combination of factors ranging from regressive laws, alienating and violent institutional practices to a lack of imagination combine to frustrate the constitutional vision of equal justice.

Disclosure statement

No potential conflict of interest was reported by the author(s).

This article first appeared in Indian Law Review and can be accessed here.