Social Work And Legal Aid - The Role Of Collaboration In Access To Bail For Marginalised People
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Category: Criminal Law
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SOCIAL WORK AND LEGAL AID: THE ROLE OF
COLLABORATION IN ACCESS TO BAIL FOR
MARGINALISED PEOPLE
Avanish Kumar Sonkar, B.A.LL.B., Faculty of Law, BHU LL.M., National Law School of India University. Bengaluru
ABSTRACT
The research paper examines the systemic denial of bail to the marginalised communities in India by highlighting how poverty, caste, and poor legal support intersect to keep undertrial prisoners in jails for extended period of time. Through the real-life cases the paper explores how the bail system disproportionately impacts SCs, STs, OBCs, Muslims, and the illiterate— despite constitutional guarantees of liberty and existing legal reforms. The paper uses data from Prison Statistics India 2022 and drawing on critical legal theory, it reveals how monetary bail conditions and poor legal aid services violate Articles 19 and 21 of the Constitution. It critiques the ineffectiveness of the Legal Services Authorities Act, 1987, and highlights the shortcomings of legal representation, corruption, and wrongful arrests among vulnerable groups. A key contribution of this study is its proposal to integrate NGOs and social workers into the bail process to support poor undertrials. The paper also evaluates the ‘Support for Poor Prisoners’ scheme introduced by the Ministry of Home Affairs and applies Richard Vogler’s three-dimensional framework for bail reform. Using qualitative methodology and secondary sources, the paper offers practical, rights-based recommendations to ensure fairer access to bail for India’s most disadvantaged citizens.
INTRODUCTION
Shivendra Sah1, a 35-year-old daily wage earner from the marginalised OBC community, came to Patna in search of work, leaving behind his old mother in his village, Samastipur. He was working as a daily wage labourer and earning around 6,000-8,000 rupees per month. He was hardly earning money and was arrested by police for consuming alcohol and disrupting traffic. Since the day of his arrest, he has been kept in judicial custody, and the trial has not started. It was a shock for his old mother as she had no clue where her son had disappeared, and she was forced to survive at the mercy of neighbours. He has to spend 21 long months in prison as an undertrial. The story of Shivendra is not just one story; there are several, like Shivendra, who belong to marginalised communities and are suffering under the criminal justice system in access to bail. The plight of those belonging to the marginalised sections of society is immeasurable. Despite several reforms and interventions progressively initiated by the judiciary and the legislature, the duration and extent of incarceration of under-trial prisoners is consistently growing and producing inconsistent, unbalanced impact, influencing the most vulnerable section of social and economic aspects of society.2 In the criminal justice system, access to bail is one of the constitutive elements of legal justice3, and that is being denied to marginalised sections, which results in a long period of pretrial detention. The Prison Statistic India of 2022, released by NCRB, reveals that 66.08% of the undertrial prisoners belong to SCs, STs, and OBCs, 65.15% of the undertrial prisoners are illiterate or studied up to X, 19.33% of the undertrial prisoners are from the Muslim community4. Data shows that there are a disproportionate number of marginalised people who are undertrials in prison and not getting bail. The problems that appear are multi-fold. The Constitution of India provides for liberty, which can’t be denied except by just, fair, and reasonable provisions established by law, but long periods of incarceration violate their freedom. The bail system is discriminatory against these poor, marginalised sections who are languishing in jails just because of their poverty. After 1 Kumar, Praveen. ‘Undertrial Prisoners in Bihar: A Study of Liquor Ban Arrests.’ Economic & Political Weekly Journal, vol. 7, 2020, pp. 38-41. 2 Sharma, Ritu. “Right to Bail and Reform (a Mockery of the System) who gets Bail and who are Deprived.” International Journal of Professional Development International Journal of Professional Development vol. 9, no. 2, 2020, pp. 150-155. 3 Prasad, Gitanjali, and Mrinal Satish. &; Exclusion from Access to Legal Justice” India Exclusion Report, vol. 1, 2016, pp. 127-158.
4 Prison Statistics Report by National Crime Record Bureau, 2022.
seven decades of independence, the governments are unable to provide quality legal aid to the needy, marginalised people, which is one of the directive principles given in the Constitution under Article 39A. Due to all these, the marginalised section has to suffer from lots of agony and pain, which no one pays heed to. Alva5, in his paper, assesses how the law of bail, as per the Criminal Procedure Code, operates to the detriment of indigents, particularly due to the monetary conditions set for release, which leads to loss of liberty without due process and the contamination of undertrial prisoners.6 Setting monetary bail at amounts higher than defendants can pay leads to detainment of those who likely do not pose any risk to society.7 It violates the fundamental writes that have been enshrined in the Constitution of India which violates Articles 19 and 21.8 There have been several reforms and interventions made to bring the change, but despite that problem persists.9 Chandra and Medarametla examine the state of undertrial prisoners in India, using NCRB’s data, and delve into why the problem persists despite various interventions and reforms introduced by the legislature and judiciary.10 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.11 Also, marginalised sections are sometimes framed under false charges. The Centre for Equity Studies, in its study on under-trials in UP for the NHRC, found that a lot of people (from very poor and disadvantaged backgrounds) are often framed for crimes they have not committed.12 There are instances where Dalits, Adivasis, and Muslims were arrested on exaggerated charges 5 Alva, Rohan Joachin. “Between Poverty and a Hard Place in Prison: Bail and the Suffering Indigent.” National Law University Delhi Student Law Journal, vol. 1, 2012, pp. 124-134. 6 Krishnaswamy, Sudhir, Sivakumar, Sindhu K and Bail Shishir. “Legal And Judicial Reform in India: A Call for Systemic and Empirical Approaches.” Journal of National Law University, Delhi, vol. 2, 2014, pp. 1-25. 7 Scott-Hayward, Christine S., and Fradella, Henry F. Punishing Poverty: How Bail and Pretrial Detention Fuel Inequalities in the Criminal Justice System. University of California Press, 2019.
8 Kumar, Praveen. Contemporary Socio-Economic Challenges and Legal Intervention to Nomadic Tribal
Community: A Case Study of Nomadic Prisoners in Bihar” Journal of Social Inclusion Studies, vol. 7, 2021, pp. 34-50. 9 Sharma, Ritu. “Right to Bail and Reform (a Mockery of the System) who gets Bail and who are Deprived.” International Journal of Professional Development International Journal of Professional Development vol. 9, no. 2, 2020, pp. 150-155. 10 Vidyasagar, Shruti, Narasapura, Harish and Tirumalai, Ramaya Sridhar. Approaches to Justice in India. 1st ed., Eastern Book Company, 2018. 11 Muralidhar, S. “Appearing in Court in India: Challenges in Representing the Marginalised”; CASTE A Global Journal on Social Exclusion, vol. 3, 2022, pp. 421- 441. 12 Mander, Harsh. “Access to Justice – Contributory Factors for its Denial and Deprivation”; Journal of the National Human Rights Commission India, vol. 14, 2015, pp. 31-59.
and had to face the extremely difficult challenges of securing bail.13 In 2023-24, the Union Budget government announced the ‘Support for Poor Prisoners’ scheme under the promise to help marginalised under trials who are unable to secure bail due to poverty.14 There is no dearth of literature on the topic of challenges faced by marginalised sections in access to bail, systematic biases of laws against the marginalised section, and poor quality of legal aid and services in India. But the novel contribution of this research paper to existing literature would be that this paper after analysing why despite the Legal Services Authorities Act, 1987 marginalised people are languishing in jail, will argue for the integration of social workers and NGOs with government agencies and schemes to boost the process of securing bail and release of marginalised undertrial prisoners from jail. The paper will also analyse the Ministry of Home Affairs scheme ‘Support for Poor Prisoners’ to help the marginalised people who, despite getting bail, are in jails because they are unable to deposit the bail money. Finally,this research paper also provides a framework of a three-dimensional approach by Richard Vogler15 regarding bail reform. The paper employs the critical legal theory to study the structural biases in the legal system against marginalised people due to limited time and access to resources; this paper employs qualitative methodology and analyses the primary and secondary sources available, which include articles, research papers, books, and reports. It analyses the recent data on prison statistics from the NCRB. The research paper is divided into five sections, in the second section, followed by this introductory section, this research paper talks about the problem of bail and the challenges faced by the marginalised section in securing bail. In the third section this research paper talks about, despite the promise of the Legal Services Authorities Act of 1987, why marginalised people are unable to get quality legal aid and services and still languish in jails as undertrials. In the fourth section, this research paper talks about monetary and non-monetary bail systems and analyses the MHA initiative of helping monetarily in securing bail. In the last section, there 13 Kumar, Praveen. ‘Undertrial Prisoners in Bihar: A Study of Liquor Ban Arrests.’ Economic & Political Weekly Journal, vol. 7, 2020, pp. 38-41. 14 Press Information Bureau, “Under the leadership of Prime Minister Shri Narendra Modi and guidance of Union Home Minister and Minister of Cooperation Shri Amit Shah the Ministry of Home Affairs taking various steps to address the issue of undertrials in prisons”, Press Information Bureau April 7, 2023, https://pib.gov.in/PressReleasePage.aspx?PRID=1914528..
15 Vogler, Richard. A World View of Criminal Justice. Ashgate Publishing Limited, 2005.
are suggestions and a conclusion.
CHALLENGES FACED BY MARGINALISED COMMUNITIES IN ACCESS TO BAIL
‘It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but by its lowest ones. - Nelson Mandela We hear about the crippling pendency of cases from all over India, but we rarely hear about denying the meaningful access of marginalised people to the legal system.16 The concept of access to justice insinuates that justice is accessible to all irrespective of their standing in society, but marginalized sections due to various factors like illiteracy, corruption, destitution, lack of knowledge, and absence of awareness among people about their rights. It creates a disadvantage for people, and this group of people suffer as they become invisible to the established legal system and continue to suffer substantive inequalities that scourge their lives.17 Rich qualitative evidence points to the fact that it is most commonly the poor daily wage earners and migrants, women, youth, Adivasis, Dalits, Muslims, the elderly, children, transgenders, and the mentally ill who are excluded from access to justice.18 The people from marginalised sections are often arrested on exaggerated charges. The sociocultural conditions and perceptions of habitual offenders and criminal behaviour continue to plague institutions like the courts and police stations, which contribute to the creation of a pattern in which marginalised people are targeted. These institutions do not take into consideration the vulnerabilities that are pushing them into prisons in the first place. Arrest entails curtailment of personal liberty, the possibility of adverse effects on the individual’s material conditions, and an unquantifiable impact on dignity.19 Though SC, in several cases, cautioned against avoidable arrest and emphasised the importance of following due process if a person is arrested. A recent example is from Bihar, where following the liquor ban many people from Dalit and Adivasi backgrounds were arrested under prohibition law, and the majority of them were behind under exaggerated charges or because of procedural lapses by visiting legal aid lawyers.20 There has been biases towards specific communities, namely poor,
16 Mann, Jeet Singh. Comparative Legal Aid Systems and India. Routledge, 2023.
17 Shreya, Anshuman. “Prisoners and Their Right to Legal Aid in India” Indian Journal Law & Legal Research, vol. 5, 2023, pp. 1-16. 18 Prasad, Gitanjali, and Mrinal Satish. “Exclusion from Access to Legal Justice” India Exclusion Report, vol. 1, 2016, pp. 127-158.
19 ibid
20 Supra 13
religious minorities, and disadvantaged castes, and mention that among various factors, poverty and illiteracy had a strong bearing on the police perception of the criminality of individuals.21 The rule of law implies that no person could be denied liberty except by just, fair, and reasonable provisions established by, and this principle is very well incorporated in the Constitution of India, but the system of money bail discriminates based on wealth, exacerbates racial disparities, results in over-incarceration and, imposes unnecessary costs on individuals and society at large.22 The fact of not having money and socially well-placed people as friends falls heavily on disadvantaged groups, and it further contributes to the impoverishment of disadvantaged groups.23 The court in Hussainara Khatoon24 criticised the bail system, labelling it highly unsatisfactory and attributing extended pretrial detention to its flaws. The system, rooted in a property-oriented, monetary approach, disproportionately affects marginalised communities, imposing physical and psychological hardships. Even when accused individuals secure sureties, the courts' demand for local sureties systematically denies liberty to the marginalised. In desperation to avoid pre-trial detention, the underprivileged may resort to touts and professional sureties, leading to financial exploitation and entrapment in debt.25 Incarceration exacerbates the plight of marginalised individuals by depriving them of employment, worsening their already challenging circumstances. Harsh prison conditions lead to job loss, hindering their contribution to legal strategies. Families also bear the brunt, facing economic hardship and resorting to socially degrading work when the detained person is the primary breadwinner. In severe cases, the responsibility of providing for the family may shift to young, innocent shoulders.26 Indian prisoners are infamous for inhumane living conditions, very high rates of overcrowding, and terrible access to health, education, employment, and recreational facilities.27 The prison atmosphere causes prisonisation of the person kept in prison; he may be initially innocent and not a criminal, but when he comes out after longer
21 Supra 18
22 Khurshid, Salman, Luthra, Sidharth, Malik, Lokendra and Bedi, Shruti. Taking Bail Seriously. Lexis Nexis, 2023.
23 Ibid
24 Hussainara Khatoon & Ors v. Home Secretary, State of Bihar 1980 (1) SCC 98
25 Supra 7
26 Supra 18
27 Supra 7
incarceration as under trial prisoner, he may have become a hardened criminal.28 The Supreme Court, through various decisions, emphasises the need for prison reforms and safeguarding prisoners' rights. In response to PILs, the court issued directions to reduce overcrowding, including the timely release of undertrials under Section 436A of the Code of Criminal Procedure (CrPC) and the establishment of undertrial review committees (UTRCs). Despite Supreme Court orders and Home Ministry advisories, the implementation of these measures remains inadequate, leading to lukewarm results across states.29
LEGAL SERVICES AUTHORITIES ACT AND FREE LEGAL AID: PROMISE VS
REALITY
The legal landscape in India reflects a complex interplay between access to justice and the struggles of marginalised communities. The Constitution of India aims to rectify longstanding injustices faced by groups such as SCs, STs, and other socially disadvantaged classes. However, data suggests there is an over-representation of the marginalised section as under-trial prisoners. The high overrepresentation of Dalits, tribal people, Muslims, and the poor in general in prison populations suggests that they are unable to access justice because of both institutional bias and their inability to receive the quality of legal representation that is available to persons who are socially and economically stronger than them.30 The large numbers of poor and socially disadvantaged persons in prisons are not because they are guilty of the majority of the crimes; it is just that they are too powerless to free themselves from the grip of the law: they lack the necessary money, education, and political clout.31 Search for a solution to a problem can only begin by recognising that a problem exists.32 It begins when Talha Khan writes, in 1971, in the report of the Legal Aid Committee appointed by the Government of Gujrat, Justice PN Bhagwati, that it is a fallacy that financial loss is necessary to prevent an accused from fleeing. It recognised the problem of the monetary system of bail. In 1973, Justice Krishna Iyer’s Expert Committee on Legal Aid Processual 28 Singh, Pradeep Kumar. ”Plea Bargaining and Criminal Justice in India”; Athens Journal of Law , vol. 7, no. 1, 2021, pp. 33-52.
29 Kumar, Praveen. “Contemporary Socio-Economic Challenges and Legal Intervention to Nomadic Tribal
Community: A Case Study of Nomadic Prisoners in Bihar” Journal of Social Inclusion Studies, vol. 7, 2021, pp. 34-50.
30 Supra 12
31 Ibid
32 Supra 22
Justice to the People, which the Parliament of India constitutes, talked about the liberal policy of conditional release without monetary sureties or financial security and release on one’s recognizance with the punishment provided for violation will go a long way to reform the bail system and help weaker and poorer sections of the community. But these were never translated into the realities. Article 39 A of the Constitution of India contains a provision for free legal aid, which states that 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 because of economic or other disabilities. So, Article 39A entails providing legal aid to individuals who are inept to secure due justice because of their socioeconomic contributions. Under this Article, the LSA Act 1987 has been enacted to endorse and certify free legal aid and services to the poor and weaker sections of society. The Act also provides those who can avail themselves of the services for free under Section 12 of the Act. It also mentions the requirement for valid documents to be used to avail of one of the legal aid and services. However, the LSA Act, which was passed to provide legal aid and services, has not been effective. Only 7.91% of undertrial prisoners are utilising legal aid services.33 For the poor, the only accessible legal representation is through extremely slow-working and ineffective government-supported legal aid services, where lawyers are overburdened, poorly compensated, and rarely able to put adequate effort into the cases.34 Despite the LSA Act, which aims to provide legal aid and ensure access to justice for marginalised sections, the reality on the ground reveals persistent challenges in securing bail for these individuals. When we look into the instances, it becomes apparent that several factors contribute to the hurdles faced by the marginalised when seeking bail. Mrinal and Gitanjali mentioned the CES study, which sheds light on the glaring inadequacies and poor quality of legal aid services in five surveyed districts, primarily within the state of Uttar Pradesh.35 The findings exposed a disturbing lack of information and transparency within
33 Surendranatha, Dr. Anup, and Gale, Andrew. “State Legal Aid and Undertrials: Are
There No Takers?” Indian Law Review, 2022, pp. 23-31.
34 Supra 22
35 Supra 18
the legal aid system. The Uttar Pradesh State Legal Services Authority (UPSLSA) responded to RTI queries by stating that they had 'no information available' on crucial aspects, such as the number of individuals benefiting from legal aid schemes in various settings, the organisation of legal awareness camps, and the composition of separate panels of legal professionals, as mandated by regulations. The CES study revealed that the District Legal Services Authority (DLSA) offices were predominantly engaged in organising family mediation sessions for marital disputes rather than actively representing Trial Prisoners (UTPs) in their bail applications. The functioning of DLSA offices was marred by opaqueness, inaccessibility, and delays in appointing legal aid lawyers. Legal aid panels were reported to be inactive, and in some instances, lawyers allegedly neglected their duties due to non-payment of fees by the DLSA. The study contextualized these issues within the broader national scenario, highlighting that such deficiencies in legal aid services were not unique to the surveyed districts. Barriers to providing free legal aid included insufficient human and material resources, inadequate state remuneration for legal services, a near absence of resources in DLSA offices, a lack of monitoring and accountability, and, notably, an apparent lack of commitment from the state government and judiciary to optimize the functioning of the legal aid system. The findings underscored systemic challenges and gaps that compromise the effectiveness of legal aid services across the country. An empirical study of the quality of legal aid services as perceived by the beneficiaries, and the study found that, despite substantial funds spent on awareness programs it is found that 23% of the beneficiaries got to know about legal aid through DLSA or police authorities.36 Studies show that only 7% opted for the aid because of its quality. There is a delay in getting legal aid, 27% waiting for more than 15 days which affects the beneficiaries, particularly in urgent legal assistance in cases like bail. Most beneficiaries find the advice and assistance provided beneficial, but a notable percentage didn’t respond due to fear that legal aid would be abandoned. It also highlights that counsel shows no keen interest, commitment and in some cases demands for money. Awareness gaps and the perception of legal aid as charity rather than a right contribute to a lack of trust. As a result, many from marginalised communities hesitate to rely on legal aid, fearing that the quality of representation may not align with their interests.37 There is a lack of
36 Supra 16
37 Muralidhar S., Law, Poverty and Legal Aid: Access to Criminal Justice. LexisNexis Butterworths, 2004.
confidence in the legal aid lawyer, which is a reflection of the general approach to welfare services by the providers and the perception that this is an act of charity rather than the right of the person in receipt of such services.38 J. Muralidhar called it ration shop syndrome, i.e., the poor believe that if you are getting any service or benefit for free, or it is substantially subsidised, then you cannot demand quality. Kumar writes that the DLSA advocates, who are assigned, never visited the prison nor cared to attend the court hearing, and they were least interested in taking pro bono cases.39 When these lawyers don’t even go to court, these poor undertrials never meet with their lawyers and never know about their case status. The report by MARG (2012), in its study, states that there is no particular emphasis on empanelment of lawyers from marginalized sections, there is no central database available with LSAs showing the progress of the cases, and lawyers do not get their fees or very minimum amount. J. Muralidhar mentioned the study of Marc Galanter and Nick Robinson, India’s Grand Advocates, and they stated that despite repeated inquiries, they could not identify any SCs, STs, and OBCs advocates, who are regarded as part of the elite strata of lawyers.40 Furthermore, the economic burden on those involved in the legal system extends beyond legal aid itself. The problem of hidden and other costs that have to be inevitably borne by recipients of legal aid in the formal legal system.41 Hidden costs, such as bribes paid to court staff, additional fees to legal aid lawyers, and expenses related to transportation, create financial strain. Legal aid schemes often fall short of compensating for these hidden costs, placing an additional burden on the marginalised individuals seeking bail. Kumar, while talking about Legal Aid intervention with nomadic prisoners of Bihar, writes that the legal process is so tedious, cumbersome, taxing, and full of documentation that it makes the ignorant poor people a toy in the hands of justice.42 He further writes that one of the prominent issues in advocating legal rights is the lack of documents, be it of identification or residential, and hence, these poor and innocent nomadic tribes become easy fish to catch and incarcerate.43 Sometimes, the valid requirements that this Act asks for are to avail of the services these marginalised people don’t have. Ironically, the objective of the legislation was
38 Ibid.
39 Supra 29
40 Supra 11
41 Ibid
42 Supra 11
43 Ibid
to help the poor and ignorant. The provision of ‘free legal aid’ enshrined in our Constitution of India is only theoretically sound, while the pragmatic view is no less than a hole in the parachute.44 The challenges faced by marginalised sections in accessing bail under the LSA Act are deeply intertwined with economic disparities, systemic complexities, and a lack of confidence in the legal aid system. As we ponder on these issues, it becomes evident that addressing these challenges requires not only legal reforms but also a broader societal shift towards recognising and rectifying the deeply rooted inequalities within the legal landscape.
MONETARY AND NON-MONETARY BAIL SYSTEMS AND MHA’S SCHEME
‘SUPPORT FOR POOR PRISONERS’
It has been said that no man should be denied release because of his indigence and the accused may, under some circumstances, be entitled to a release without bail or on his cognisance.45 Imposing a massive amount for bail may amount to a denial of bail. When these marginalised people are unable to deposit the surety bond, they further languish in jails. So, could a solution be to abolish the monetary bail system? The difficulty, however, is that in the face of a bail reform movement that advocates the wholesale abandonment of monetary bail, courts and legislatures have turned to conditions of release as a substitute for monetary bail, particularly for defendants with criminal histories, past noncompliance with conditions of release (including bail jumping), or charges of non-eligible offences. Such conditions, however, carry their own set of under-explored consequences. Consider, for example, monetary costs, social costs, and criminogenic effects.46 Each of these conditions, by their very nature, curtail the defendant's liberty to some extent. Some curtailments are minor, others more severe. All carry some form of collateral consequence. These conditions, like their purely monetary counterparts, carry consequences that fall harder and faster on poor and minority defendants. Non-monetary conditions of release are imposed with the assumption that they will produce the desired mitigation of risk, yet there is no supporting data to show that they have accomplished their purported goals. The solution could not be the complete abolishment of the monetary bail system. Rather, there
44 Ibid
45 Pandya, Asim. Law of Bail Practice and Procedure. 2nd ed., Lexis Nexis, 2015.
46 Carroll, Jenny E. “Beyond Bail” Florida Law Review, vol. 73, no. 1, 2021, pp. 143-198.
should be reform that entails the conditions that should be imposed on securing bail based on the socio-economic conditions of the accused. Also, several NGOs are working for these marginalised people who are languishing in jails to help them secure bail by providing legal aid and monetary help. So, the government should, in collaboration with them, work for them. During the 2023-24 Union Budget, the Ministry of Home Affairs launched a scheme that will enable underprivileged prisoners, the majority of whom belong to socially disadvantaged or marginalised groups with lower education and income levels, to get out of prison. The scheme would provide financial support to marginalised section prisoners who are unable to get bail or secure release due to financial hardship. The announcement comes with the Union Budget of 2023-24, under the ‘Support for Poor Prisoners’ scheme. It will ask the State and the UT prison departments to direct their officers to activate the scheme, which requires empowered committees to identify deserving poor to be granted benefits under the scheme. The 'Support for Poor Prisoners' initiative, introduced by the Ministry of Home Affairs (MHA), endeavours to confront the predicaments faced by underprivileged prisoners, particularly those hailing from socially disadvantaged or marginalised backgrounds marked by lower education and income levels. The scheme's overarching goal is to streamline the release process for individuals confronting financial barriers hindering their access to bail or release. The 'Support for Poor Prisoners' scheme emerges as a targeted intervention designed to relieve the financial burdens that often obstruct the release of underprivileged individuals within the criminal justice system. Through strategic financial assistance, the scheme aspires to foster equitable access to justice and mitigate the pervasive impact of socioeconomic disparities. The empowered committees, established by the prison departments of both States and Union Territories, will wield the responsibility of identifying individuals meriting support under the scheme. These empowered committees are entrusted with assessing the socio-economic conditions of prisoners, thereby determining their eligibility for the benefits envisaged by the initiative. The financial support is meticulously tailored to empower individuals to surmount the financial impediments associated with securing bail or release, with a targeted focus on those grappling with economic challenges. Further, recognising the intricate nature of the challenges faced by the underprivileged, if the scheme calls for collaboration between the government and non-governmental organisations (NGOs) actively engaged in supporting marginalized individuals, then this scheme will play a
pivotal role in the implementation process, aiding in the identification of eligible cases and facilitating the seamless disbursement of financial support.
SUGGESTIONS AND CONCLUSION
In conclusion, our examination of the criminal justice system and legal aid services in India underscores the pressing need for comprehensive change. While the law serves as a foundational framework for societal conduct and justice, but its transformative power lies in the collaborative efforts of law and other societal aspects. In the domain of legal aid and bail, the realisation of justice for marginalised people necessitates not only legislative support but also concerted efforts in addressing systematic issues. Felice Balten talks about the importance of collaboration of social workers in legal aid. There is need for genuine collaboration, equitable partnership and comprehensive cross-training among legal and non-legal professionals. Legal aid societies that isolated themselves from social service agencies found that they were increasingly out of step with the spirit of the age.47 Firstly, addressing the issue of marginalised individuals languishing in jail despite being granted bail requires a collaborative effort from social workers, government bodies, and NGOs. Organisations like 'Prayas' and the 'Global Care Foundation' are playing a pivotal role in assisting these individual and with the government initiatives such as the 'Support for the Poor Prisoners' scheme offering significant support, their collaboration could boost the process of access to bail.48 Acting as a bridge between prisoners, their families, police officials, lawyers, and prison staff, these entities strive to reduce the time prisoners spend behind bars due to challenges in fulfilling bail conditions. Notably, the Global Care Foundation, since 2019, has facilitated the release of 200 undertrials imprisoned for petty crimes, providing both financial aid for bail and rehabilitation support Raghavan, emphasising the limited avenues for individuals in custody, highlights the crucial role of social workers in helping them navigate the legal system by assisting in drafting applications, filing petitions, and elucidating 47 Batlan, Felice. Women and Justice for the Poor A History of Legal Aid 1863-1945. Cambridge University Press, 2015. 48 Das, Mohua, “Fellowship of Social Workers, lawyers helps poor undertrials navigate legal maze get bail.” The Times of India, February 13, 2023, https://timesofindia.indiatimes.com/city/mumbai/fellowship-of-social-workers lawyers-helps-poor-undertrials-navigate-legal-maze-get and Pandharipande, Neerad, “Meet the social workers helping prisoners who languish in jail despite getting bail.”. Scroll.in, July 15, 2023, https://scroll.in/article/1052525/meet-the-social-workers-helping-prisoners-who languish-in-jail-despite-getting-bail https://timesofindia.indiatimes.com/city/mumbai/mumbai-foundation-helps 1st-time offenders-with-cash-for-bail-and-rehabilitation/articleshow/86130086.cms.
case details to lawyers.49 This integrated approach aims to empower marginalised individuals in safeguarding their rights through judicial processes. Secondly, with regard to legal aid services, the report by MARG, in collaboration with the Government of India and UNDP, identifies best practices based on information from SLSAs across India. Delhi and Haryana emerged as states with the largest number of commendable practices, including legal empowerment partnerships with government programs, training initiatives for panel lawyers, paralegal training involving community paralegals and students, and the establishment of a toll-free helpline. These practices showcase effective legal empowerment and accessibility initiatives. Recognising the lack of awareness among potential beneficiaries, proactive awareness programs are essential. Collaborations between SLSAs, local institutions, community leaders, and the media can effectively disseminate information about the availability and benefits of legal aid services. To address concerns about legal aid counsels' competence and commitment, implementing a robust monitoring mechanism involving regular evaluations, accountability measures, and prompt issue resolution is crucial. Sensitising legal aid counsels to the challenges faced by marginalised individuals is imperative, emphasising qualities like empathy and a client-centric approach. A need for legal literacy programs to empower beneficiaries, enabling them to comprehend their rights, understand the legal aid process, and engage effectively with counsels. This holistic approach aims to establish a more informed, accountable, and accessible legal aid system. Thirdly, with regard to institutional reform, J. Muralidhar emphasises that the essence of reforming the criminal justice system lies not just in increased resources but, more importantly, in the determination of institutions to adapt and evolve, emphasising a transformative approach towards justice and equity.50 Aparna Chandra underscores the need for a broader perspective on access to justice, extending beyond resource allocation to influence decisions on substantive rights, procedural norms, remedies, and the administration of the judicial setup.51 They call for a comprehensive overhaul of institutional practices, stressing increased service provision, adaptability, and a holistic understanding of access to justice that goes beyond resource allocation to encompass various facets of the legal process. 49 Wajihuddin, Mohammed, “Mumbai: Foundation helps first-time offenders with cash for bail and rehabilitation”. The Times of India, September 12, 2022, https://timesofindia.indiatimes.com/city/mumbai/mumbai-foundation helps-1st-time offenders-with-cash-for-bail-and-rehabilitation/articleshow/86130086.cms.
50 Supra 11
51 Supra 10
Apart from these additionally, with regard to Criminal Justice Reform, Richard Volger talks about the three-dimensional approach, the three great trial methodologies, which represent entirely legitimate interests in criminal justice, those of the state in the repression of crime, those of the individuals most involved and those of the community in expressing its collective interests.52 The three-dimensional approach to criminal justice offers a comprehensive framework that holds the potential to significantly contribute to the ongoing efforts of bail reform. It acknowledges and balances the interests of the individuals involved, the responsibilities of the state in maintaining public order, and the collective concerns of the society. The three-dimensional approach to criminal justice significantly contributes to bail reform by creating a nuanced and comprehensive framework. Firstly, it prioritises the interests of individuals, particularly the accused and victims. This ensures fairness in the bail process, upholding the presumption of innocence until guilt is proven. By incorporating restorative justice practices, the approach encourages dialogue and resolution, considering the needs of both parties involved. Secondly, it acknowledges the state's interest in the repression of crime. This involves a critical evaluation of resource utilisation, urging a more effective use of public resources. By emphasising risk assessment and individual circumstances, the approach seeks to minimise unnecessary and prolonged pretrial detentions, ensuring a judicious application of incarceration when required. Lastly, the approach recognises the collective interests of the community. Community involvement becomes integral to the reform process, fostering shared responsibility for justice. Additionally, it addresses the root causes of criminal behaviour by advocating for initiatives such as social programs, education, and community support.
52 Supra 15
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jail despite getting bail.”. Scroll.in, July 15, 2023, https://scroll.in/article/1052525/meet-the-social-workers-helping-prisoners-who languish-in-jail-despite-getting-bail.
4. Press Information Bureau, “Under the leadership of Prime Minister Shri Narendra Modi
and guidance of Union Home Minister and Minister of Cooperation Shri Amit Shah the Ministry of Home Affairs taking various steps to address the issue of undertrials in
prisons”, Press Information Bureau April 7, 2023, https://pib.gov.in/PressReleasePage.aspx?PRID=1914528..
5. Wajihuddin, Mohammed, “Mumbai: Foundation helps first-time offenders with cash
for bail and rehabilitation”. The Times of India, September 12, 2022, https://timesofindia.indiatimes.com/city/mumbai/mumbai-foundation-helps-1st-time offenders-with-cash-for-bail-and-rehabilitation/articleshow/86130086.cms. Statutes: