Justice Vikram Nath of the Supreme Court recently reiterated that the quality of legal aid for the poor cannot itself be poor. He said that if legal aid is only rendered in form but not in spirit, it may follow the procedure, but then it fails the Constitution and therefore, the true idea of justice itself. This is because an essential facet of Articles 21 and 39A of the Constitution is meant to ensure that justice is not denied because of poverty or ignorance, as it is not an act of charity, but an act of faith—faith in the Constitution and equality of all before the law.
"It needs to be understood that this is not merely a formality. It is a constitutional duty- one that can decide whether a person spends years in confinement or walks free with dignity. When legal aid is rendered in form but not in spirit, it may still comply with procedure, but it fails the Constitution. It fails the idea of justice itself. The Supreme Court has repeatedly emphasised that the quality of legal aid for the poor cannot itself be poor. This is an essential facet of Articles 21 and 39A- the twin pillars that ensure that justice is not denied because of poverty or ignorance. It is not an act of charity, but an act of faith - faith in the Constitution and faith in the equality of all before the law."
Justice Nath was speaking on 'Between Custody and Constitution: Field Lessons in Delivering Fair Trial Rights-Legal Aid for Undertrial Prisoners: Report of the Fair Trial Programme in Pune and Nagpur(2019-2024),' organised by the Square Circle Clinic, NALSAR.
Justice Nath remarked that we must try to make the legal aid truly accessible, and in order to achieve that, we must move from mere sympathy to structural empathy. It is to ensure that representation reaches not only those who can approach the Court, but also those for whom the Court must reach out. Stating this, he congratulated the Square Circle Clinic for its brilliant work in this field.
There is distrust in the legal aid system due to past experiences
Pointing out the key findings of the report, Justice Nath stated that there is a gap between the constitutional promises and the lived reality of lakhs of undertrial prisoners in this country, which unfortunately comprises over 70% of the total prison population. In this context, he said that Square Circle Clinic's work reminds us that justice does not end at the courtroom door; it continues in the lived experiences of those who depend upon it.
He emphasised that this is the challenge that our criminal justice system is currently facing-undertrial detention and legal aid. Despite the fundamental principle of innocent until proven guilty, more than 70% undertrials continue to languish in jail and in most cases, they don't even know they have a right to legal aid. Particularly, Justice Nath remarked that many do not want to reach out to legal aid as there is distrust owing to experience, so they would rather engage a private advocate than ask someone to fight for them for free.
"And what is more concerning is that, in most cases, they don't even know that they have a right to legal aid. Out of the 74% of undertrials, only 7.91% have utilized legal aid available to them. Even in cases where they do know, they often refrain from seeking it due to distrust stemming from past experiences. They rather go ahead with engaging some private advocate believing that if they pay someone, he'll do better than the person who is getting nothing out of it."
System responsible for failing the poor
Justice Nath also averred that in many cases of undertrial prisoners, bail applications are mechanically filed without support documents and without sureties because the poor accused can't afford it. Because of all this, he continues to languish in jail, and this results in them often spending time exceeding the maximum sentence.
"Bail applications are filed mechanically, without supporting documents, without sureties that the accused can actually produce. The accused cannot afford the bail amount, cannot find sureties and he is back to square one. He just waits, not because the law makes him, but because the system has failed him. There are undertrials who have spent time in prison exceeding the maximum sentence for the very offense they are accused of. There are undertrials charged with bailable offenses who remain in custody simply because they could not furnish bail. There are undertrials who would have been acquitted or given suspended sentences had their trials concluded promptly- yet they continue to languish."
Sharing his experience, he said that he comes across many such cases on a daily basis where even chargesheet is not filed despite the undertrial having suffered significant time in custody. He remarked that the Courts have given monumental judgments in the aspect of legal aid, but such judgments are not enough to restore faith in the system. It will only be restored if the legal aid system is made meaningful.
"I come across such cases on a day to day basis, where for even minor offences, people have been in custody for so long, with not even a chargesheet is filed, let alone the trial begun, and it pains me to witness this. Of course, the Courts do as much as they can. From the judgment in Hussainara Khatoon which led to the release of over 40,000 undertrial prisoners to the one in Sukanya Shantha, challenging the caste-based discrimination in Indian prisons, the Court has upheld the constitutional promise of liberty and dignity. But the faith of people in the justice system will not be restored by monumental judgments alone. It will be restored by the everyday decency of those who serve within it. When legal aid becomes meaningful, justice becomes visible. And when that happens, our democracy breathes a little easier."
Legal aid system should not work in separate boxes
Justice Nath suggested that the legal aid system, comprising courts, prisons, legal service authorities and others, needs to have a connection between them to ensure there is a line of responsibility from the first contact to the final representation.
"When an accused person appears before a Magistrate, the system should already know if they have a lawyer, if that lawyer has met them, and if the representation will continue. It is also important to realise that it is not enough to just provide a lawyer; we must ensure that the representation is effective. To ensure that the concerned authorities are performing their part, it is essential to maintain a system of checks and supervision. There is a need for checking performance, building skills regularly, and creating mentorship within the Legal Services Authorities."
Prison system must acknowledge needs of vulnerable class
Here, Justice Nath also averred that enough attention must also be given to those groups who are disproportionately affected in the prisons. He said that while the situation is difficult for all undertrials, it is far worse for women, for individuals with mental health concerns, and those from marginalised communities.
"For women, the prison becomes an extension of the same social control, moral scrutiny, and gender policing that governs their lives outside. The report points to a glaring deficiency that even the data we produce tends to invisibilise women and also, transgender persons. Their experiences remain undocumented, their voices unheard. When the intersection of gender with caste, poverty, and limited education is added to this, the degree of vulnerability becomes almost unimaginable. The statistics presented by the report are, in that sense, not merely numbers - they are a reflection of our collective failure to see and to respond."
Importantly, Justice Nath laid emphasis on the need for empirical data. He said that the Pune-Nagpur model stands as a living example of the transformative impact of evidence-based reforms.
"The data we presently rely upon to address these issues is, unfortunately, insufficient in both scope and quality. For instance, the Prison Statistics of India report does not even account for the health status of prisoners. Equally disheartening is the continued neglect of the provisions of the Mental Healthcare Act, 2017 and the guidelines laid down by the courts in several cases- a concern that this report highlights with clarity. As long as these institutional barriers remain unaddressed, no real or lasting reform can take root."
Databases must capture disaggregated data to see where the system particularly fails the community
Justice Nath said that we must move towards creating robust national and state-level databases that track undertrial prisoners longitudinally- from the moment of arrest through release or conviction. He especially focused on collective data based on demography, duration of detention, quality of legal representation and most importantly, disaggregated data by caste, economic status, religion etc.
"These databases should capture demographic profiles, nature of charges, duration of detention, quality of legal representation, reasons for delay, and final outcomes. Importantly, this data must be disaggregated by caste, religion, economic status, gender, and geography, so that we can clearly see where and how the system fails particular communities. For when we cannot measure a problem with accuracy, we cannot hope to design solutions with integrity."
He suggested that we must adopt a compassionate approach that recognises their particular vulnerabilities and provides the support they require through the lens of substantive equality.
"It is here that we must consciously adopt the lens of substantive equality. True equality demands that we account for the distinct burdens carried by women and other vulnerable groups, and shape our laws, policies, and institutions in a manner that enables them to stand on equal footing, whether it is through effective legal aid, access to healthcare, safe spaces, or institutional sensitivity. Only when these differences are accounted for can the right to a fair trial be meaningful."
He concluded by stating that law schools have a significant part to play in ensuring that justice comes alive and not as an extra work to be checked off a list.
About the report
According to the report released, the Square Circle Clinic initiated the Fair Trial Program (FTP) in collaboration with Project 39A for NLUD in 2018. It began intervention in the Nagpur Central Prison and the Yerawada Central Prison(Pune) in 2019. In March 2023, it set up the Legal Aid Defence Counsel Scheme in all districts in Maharashtra with the District Legal Services Authority.
From January 2019 to August 2024, it handled 5,783 cases, out of which 41.3% had no lawyer assigned for intake, around 51.5% were under 30 years old, and 58.7% identified as Hindus. Additionally, 67.6% belonged to disadvantaged caste groups. Overall, 79.2% had no family contact and 78.1% earned less than Rs. 10,000 and 79.8% worked in the unorganised sector.