2024 INSC 813 1

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION NO. 1082 OF 2020

SUHAS CHAKMA PETITIONER(s)

VERSUS

UNION OF INDIA & ORS. RESPONDENT(s)

J U D G M E N T

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

REPORTABLE

2

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

3

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

15

th

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.

4

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 and Others (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

5

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 and Others (2) v. State of Bihar and

Others, (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)

6

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

7

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?”

xx xx xx

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…..

8

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

9

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

10

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

11

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;

12

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;

13

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

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.

15

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

16

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.

17

“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)

18

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.”

19

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

20

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

21

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.

22

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 vs

State of A.P. & Ors. (AIR 2006 SC 1946).

23

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

24

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

25

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 vs. 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

26

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

27

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 vs. 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.

28

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)

29

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%

30

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

31

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;

32

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;

Χ. 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

33

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.”

34

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.

35

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

36

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

37

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

38

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

39

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

40

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.

………........................J.

[B.R. GAVAI]

……….........................J.

[K. V. VISWANATHAN ]

New Delhi;

23

rd October, 2024.