Abysmal Legal Aid, Untrained Jail Officials the Bane of Undertrials

Effective, free legal aid and release from prison if half the sentence has been served in pre-trial detention: these are the twin pillars which, according to criminologists and legal experts, form the bulwark of the mechanism for reducing the undertrial population in India..However, a report released on July 12 by the human rights organisation Amnesty International has found that both these twin pillars are gravely plagued by ills. The ratio of legal aid lawyers to the undertrial population is a poor one, the status of lawyers’ visits to jails is abysmal, and a large number of prisoners are wrongly deemed eligible for release while the really deserving ones continue to languish in jail, the report has found..Poor Legal Aid.23 prisons lacked a single legal aid lawyer. Out of 1544 undertrials in 254 prisons shown as being eligible for release, the cases of 1286 were wrongly decided for reprieve..The report, Justice Under Trial: A Study of Pre-trial Detention in India, analysed data available with the National Crime Records Bureau and records collected by Amnesty from the country’s 500-odd district and central jails through nearly 3,000 Right To Information applications..On February 5 last year, in an order passed by the Supreme Court in the Re: Inhuman Conditions in 1382 Prisons case, legal aid lawyers were directed to engage with the system in order to release undertrials. The Court remarked that the State and District Legal Service Authorities should empanel competent lawyers in order to prevent ‘legal aid for the poor’ from becoming ‘poor legal aid’..However, these salutory words of the apex court seems to have had no effect on the lawyers tasked with providing legal aid, the data reveals. Abysmal pay is one of the reasons such legal aid lawyers shirk their duty..The adequacy (or otherwise) of the number of lawyers per prison is not so much of an issue compared with the number of visits they pay to those they are supposed to represent. For instance, Maharashtra has 84 lawyers for 13 prisons. But they have paid only 1.28 monthly visits on average. The number is particularly shocking for Haryana – 11 prisons, 478 legal-aid lawyers, with only 0.22 monthly visits on an average. Kerala is the other one, with 217 lawyers for 13 prisons, clocking only 0.45 average monthly visits..The same is highlighted in the tables below:.StateNo. of prisonsNo. of legal aid lawyersAverage monthly visitsDelhi8731.12Tamil Nadu182471.07Assam21511.04Kerala132170.45Andhra Pradesh11690.26Haryana114780.22Gujarat5420.12.The relatively low number of legal aid lawyers in many states (compared to the undertrial population), coupled with the low frequency of lawyer visits, creates a situation where many undertrials are unable, and sometimes unwilling, to access legal aid..For every bail application, a lawyer in Andhra Pradesh is paid Rs. 100, while she is paid Rs. 1500 in Tripura. Several lawyers complained to Amnesty about the grossly inadequate pay, and the delayed, cumbersome procedure of obtaining paymnent. A lawyer in Patna said that a couple of years ago, he was paid only Rs. 500 for a case which went on for three years..State/UTRemuneration per bail application (in Rs.)Tripura1,500Madhya Pradesh1,100Chandigarh1,000Kerala750Uttarakhand500Delhi500Assam500Tamil Nadu450Telangana400Andhra Pradesh100.Wrongly Determined Release Cases.Section 436A of the CrPC provides that where an undertrial has been detained for a period equal to half of the maximum sentence specified for the offence for which they are charged, they are eligible for release on personal bond, with or without sureties..In 2014, the Ministry of Home Affairs issued detailed guidelines to the governments of all states and UTs on how eligibility for release under section 436A was to be determined. The guidelines clarified that where an undertrial is accused of multiple offences, the “half-time” is to be calculated for the offence that has the longest sentence. If the undertrial is accused of multiple offences and his dates of arrest are different, then the dates of detention will be calculated separately for each offence..Using the information received about the offences each undertrial was suspected of, Amnesty calculated the maximum sentence that each undertrial faced, and whether they had been in prison for at least half that time and were therefore eligible for release under section 436A. These figures were then compared to the information given by the prison authorities, to determine if prisons had correctly applied section 436A..The results were startling. In Madhya Pradesh, RTI responses from 24 prisons stated that 409 undertrials were eligible for release under Section 436A, but independent calculations by researchers indicated that only one undertrial was actually eligible for release. In Uttar Pradesh, 71 were wrongly deemed eligible, while 227 deserving ones were waiting..StatePrisoners incorrectly deemed eligibleNo. of prisoners actually eligibleMadhya Pradesh4081Assam3343Chhattisgarh2393Maharashtra2206Uttar Pradesh71227.Amnesty has recommended that the process of legal aid be significantly overhauled- with standardised payments across states, and also to ensure that only dedicated and competent lawyers are allocated. The organisation has also called upon prison officials to be trained properly in the law, so that instances such as the Section 436A travesty can be averted and avoided in future..Read the report: