Legal Services Clinic Blog, Uncategorized

Legal Aid: Prisoners and Undertrials

Sharvari Kothawade gives you a low-down on access to legal aid for prisoners and undertrials:

The fundamental right to liberty of a human being in India can be taken away only by due process laid down by law. This right isn’t curtailed completely even with respect to prisoners and undertrials.

The Prisons Act, 1864 seeks to monitor the treatment of prisoners in India with a view to ensure that they aren’t mistreated during the period of trial and/or sentence. The maintenance and regulation of prisons is a subject to legislations by the respective states. However, some rights are available to all prisoners throughout the country such as the right to bail, rights against mistreatment and rights to speedy trails.

In light of Article 39A of the Constitution of India, the National Legal Services Authority (NALSA) seeks to provide free legal aid to the weaker section of the society. To give effect to its policies, legal services authorities are set up in every state and district. The Chief Justice of the High Court heads the State Legal Services Authority and the District Legal Services Authority is situated in the District Courts Complex to be headed by the District Judge.

Legal Aid for prisoners and undertrials

A person shall be entitled to free legal services if the annual income is less than ₹9,000 or any other amount prescribed by the state government.[1] The income ceiling is raised to less than ₹12,000 per annum, if the case if pending before the Supreme Court.[2] A person will be granted free legal aid if in custody.[3] The period of custody begins at the time of arrest and continues till the execution of the sentence. Once a person has been granted these services, he/she is not expected to pay any fees whatsoever with respect to the case. The Legal Services Authority will also be expected to cover all incidental expenses in connection with the cases.

Rights at the time of arrest

  • A person must be produced within first 24 hours of arrest, which doesn’t include the travel time.
  • A person cannot be kept in police custody beyond the first fifteen days of arrest.
  • The arresting police officer must be wearing nametags.[4]
  • Handcuffing of a person is not permitted unless the police officer has a warrant from the magistrate, which will be granted only under justifying circumstances.[5]
  • An arrested person has the right to be informed about his right to inform a friend or relative of his arrest.[6]
  • An arrested person has the right to be made aware of his right to bail.
  • A woman cannot be arrested between 6pm and 6am.
  • A female can be arrested only in the presence of a female officer and can be subjected to bodily examination only by a female officer.
  • The arrested person has a right to meet his lawyer during the interrogation, but not throughout the interrogation.
  • The police officer in-charge of a prisoner can grant the bail in case of a bailable offence. The magistrate, upon application, in case of a non-bailable offence, grants bail

Rights as an undertrial

  • An indigent person earning below ₹10,000 per annum is entitled to free legal aid from the court.
  • A person is entitled to a default bail if the chargesheet is not filed within the first 60 days of arrest if the offence is punishable to an extent of 7 years imprisonment (non-cognizable offence).
  • A person is entitled to a default bail if the chargesheet is not filed within the first 90 days of arrest if the offence is punishable beyond 7 years imprisonment (cognizable offence).
  • No custodial torture is permitted. The torturing police officer may be charged under Section 7 and 29 of the Indian Police Act.[7] This includes physical, mental and psychological torture.[8]
  • If an undertrial were to choose to confess, no police officer can be present.
  • No accused can be forced to confess to his/her crime by anyone and any forced confession will not be used against him/her.
  • Unless in exceptional circumstances, a person cannot be kept in solitary confinement or be subject to bar-fetters.[9]
  • No person can be forced to undergo narco-analysis or brain-mapping tests.[10] These tests may be conducted only with express consent of the accused.
  • A detainee, who is not a convicted prisoner, has the right to vote.

Rights as a prisoner

  • Prisoners are entitled to reasonable wages that are above the minimum wage limit for any work undertaken in their time in prisons.[11]
  • A prisoner has the right to write and receive letters.
  • A prisoner can meet his friends and relatives after necessary searches.
  • A prisoner can write books and get them published.[12]

[1] Section 12(h), Legal Services Authorities Act, 1987
[2] Section 12(h), Legal Services Authorities Act, 1987
[3] Section 12(g), Legal Services Authorities Act, 1987
[4] D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
[5] Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.
[6] Section 56(1) of the Police and Criminal Evidence Act, 1984.
[7] D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
[8] Arvinder Singh Bagga v. State of Uttar Pradesh, AIR 1995 SC 117.
[9] Sunil Batra vs. Delhi Administration – AIR 1978 SC 1675.
[10] Selvi v. State of Karnataka,
[11] Gurudev Singh v. Himachal Pradesh, (2010) 7 SCC 263.
[12] R.R. Gopal v. State of Tamil Nadu, AIR 1995 SC 264.

Sharvari Kothawade (III Year) is a law student at the National Law School of India University, Bangalore (NLSIU) and can be contacted at sharvarikothawade@gmail.com

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