In order to ensure that the fundamental rights of prisoners are not violated, the role of legal services authorities is crucial. The importance of free legal aid has been emphasized by Supreme Court in several judgments.
(i) Right to Free Legal Aid
The Court, in Hussainara Khatoon v. Home Secretary, State of Bihar, recognized the “right to free legal services” as “an essential ingredient” of “reasonable, fair and just” procedure under Article 21 for a person accused of an offence. It is “a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation”.[1]
Later, in Sheela Barse v. State of Maharashtra,[2] regarding the plight of women prisoners in the jails of Maharashtra, the Court, while emphasizing free legal assistance, expressed its concern on
“the helpless condition of a prisoner who is lodged in a jail who does not know to whom he can turn for help in order to vindicate his innocence or defend, his constitutional or legal rights or to protect himself against torture and ill-treatment or oppression and harassment at the hands of his custodians”.
The Court declared in Mohd. Hussain v. The State (Govt. of NCT) Delhi[3] that Article 39A “casts duty on the State to ensure that justice is not denied by reason of economic or other disabilities in the legal system and to provide free legal aid to every citizen with economic or other disabilities”.
In Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State Of Maharashtra,[4] the Court held that the right to access to legal aid “flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced”.
The Court directed all the magistrates in the country to inform a person accused of committing a cognizable offence produced before their court, that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State.
The Court clarified that “any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceeding”.
(ii) Inspection by Legal Services Authorities
Section 12 of the Legal Services Authorities Act, 1987, provides that all “persons in custody” are entitled to free legal aid. In 2015, NALSA wrote a letter to all State Legal Services Authorities (SLSAs) to constitute a prison legal aid clinic (PLAC) in every prison under their jurisdiction.[5]
To further strengthen the functioning of PLACs, NALSA formulated the Standard Operating Procedures (SOP) on Access to Legal Aid Services to Prisoners and Functioning of the Prison Legal Aid Clinics, 2022.
Under this SOP, there are provisions for two types of inspection visits to the prisons. One shall be undertaken by the secretary of the DLSA, and the other is to be done by the chairperson of the DLSA, i.e., the district and session judge.
The inspections have to be undertaken every month by the Secretary, DLSA, and quarterly by the Chairperson, DLSA. During these inspections, the authority inspecting is supposed to look at the overall condition of the prisons.
Apart from this, a Board of Visitors is constituted, as per the Model Prison Manual 2016, at a district level.
The comments of the Board of Visitors are recorded in the visitors’ book of the prison and are forwarded to the Inspector General (IG) of Prisons. Any action on the comments is at the discretion of the IG Prisons.
The Model Prisons and Correctional Services Act, 2023 also envisages inspection of prisons, including by a Board of Visitors headed by the district judge/additional district judge/sub-divisional judicial magistrate. It also includes the provision for “free legal aid to the prisoners in accordance with the provisions of the Legal Services Authorities Act, 1987” and the relevant standard operating procedure.
Reference
Sukanya Shantha v. Union of India (2024)
[1] Hussainara Khatoon v. Home Secretary, State of Bihar [1979] 3 S.C.R
[2] Sheela Barse v. State of Maharashtra, 1983 INSC 9
[3] AIR 2012 SC 750
[4] 2012 INSC 357
[5] NALSA Standard Operating Procedures on Access to Legal Aid Services to Prisoners and Functioning of the
Prison Legal Aid Clinics, 2022, https://nalsa.gov.in/acts-rules/guidelines/nalsa-sop-functioning-of-prison-legal-aid
clinics-2022