S.V. Ghopesh & Siddhanth Shamindran

Abstract: The primary purpose of this article is to contend the existence of a Constitutional blind spot in the interpretation of the intersection of Articles 21 and 39-A, with respect to an emerging class of proactive liberty-determining and executive-driven legal aid that suffers immensely from basic procedural deficiencies. It is argued that this blind spot results in the application of due process in such legal aid being a mere policy decision of the State as opposed to operating as a Constitutional guarantee.

Introduction

In India, legal aid has transformed progressively, from being an area of neglect by the State to the establishment of a nationwide network for legal services, NALSA. In its three decades, NALSA has 20 different schemes, offering a wide array of services, institutionalising legal aid uniformly across the country. The institutionalisation and development are attributable to the constitutionally driven activism from the Supreme Court. Now, the State plays an active role in legal aid through a variety of systematic, executive-driven legal aid schemes governed through individual Standard Operating Procedures (SOPs). However, when such schemes delve into determining the liberty of individuals, it is paramount that they safeguard basic fundamental rights through the incorporation of procedural safeguards. Without such incorporation, the lives of thousands are at risk.

This article does three things. Firstly, it aims to highlight an emerging class of systematic executive-driven legal aid that renders liberty-affecting decisions, which are governed by SOPs severely lacking in their procedural fairness. Secondly, it analyses the current jurisprudence on legal aid, highlighting how it is ill-equipped to handle inefficiencies that can arise out of this class of legal assistance, as it has effectively focused purely on trial-based legal aid. Finally, it argues that this class of legal assistance, removed from trial-based processes, is situated in a Constitutional blind spot where they simultaneously fulfil the obligations of the State under Article 39-A and, at the same time, are free from the necessity of due process to be followed in right-determining processes. This final argument is presented using recent judgments, orders, and SOP modifications to demonstrate how the broader isolation of due process to trial-based legal perpetuates in such a class of legal aid to be viewed as mere State administrative endeavours independent of their ramifications on fundamental rights.

An Emerging Class of Assistance

To identify and elaborate upon this class of legal aid, it is first imperative to distinguish it from legal aid that determines the liberty of an individual, but through a trial. For instance,  a scheme such as NALSA’s Legal Aid Defence Counsel Scheme  provides representation in criminal matters to vulnerable sections of society, who, without representation in the trial, risk deprivation of their liberty before the complex legal apparatus.

On the other hand, take NALSA’s Under Trial Review Committee Scheme (UTRC) and the Support for Poor Prisoner Scheme (SPP) of the Ministry of Home. The UTRC is a body consisting of executives that recommends relief for certain categories of undertrials, such as release on bail, reduction of bail, or release on personal bond, etc. The Empowered Committee of the SPS, a similar executive body, sanctions the payment of bail or fine for those prisoners who, owing to their impoverishment, are unable to pay for it themselves. 

Now, what makes these schemes different from the Defence Counsel is that they do not at all deal with the trial; instead, the service offered by them is carried out through administrative actions of the authorities under the Scheme. These actions determine the liberty of individuals but are removed from the Courtroom. However, despite the differences in their objectives and the intricacies in the SOP, at their core, both operate through a series of three staged processes involving various authorities:

1. Firstly, there is a prison authority that is to identify prisoners eligible to be beneficiaries within its jurisdiction. After identification, this authority is to communicate the identified prisoners to the second authority, the District Legal Service Authority (DLSA). Under the UTRC, the Jail Superintendent collects all relevant information on undertrials and provides it to DLSA. While under the UTRC, the jail authority is required to inform the DLSA of all prisoners who have not been released due to non-payment of fine or bail within 7 days.  
2. Secondly, the DLSA is to review the forwarded cases and determine eligible prisoners. Then it recommends the selected individuals to a specially constituted third authority, which is either the UTRC or the Empowered Committee in SPS.
3. Thirdly, the UTRC and Empowered Committee ultimately exercise their discretion in accepting or rejecting the DLSA’s recommendations for each case.

The flow of these schemes is centred on communication from one authority to another. Between each of these communications, decisions are made, and prisoners are filtered out. The rights of prisoners, as well as administrative efficiency, are necessarily contingent on a strong conceptualisation of procedural safeguards around these communications and decisions.

Top-Down Opaque Filters

Procedural safeguards are dubbed the handmaids of justice, guaranteeing the liberty of an individual by limiting the wide powers of the Government. They condition the State’s power by limiting its discretion and ensuring accountability in decision-making processes that affect individual rights. They are sine qua non whenever the liberty of an individual is under threat and are particularly relevant in the criminal justice system. However, the UTRC and the Scheme suffer from an abject lack of safeguards, particularly with the completely opaque decision-making envisioned.

Communicatory channels, as provided in the SOP, exist purely between the three authorities, with the prisoners being completely left out of this communication. The result is that the prisoner does not even know whether the jail authority has forwarded his case, let alone the status of his case at various points of the case processing journey. This results in non-transparent decision-making, where the complete opacity of the communication channels prevents monitoring of the decisions made by any of the authorities, leading to a systemic inability to identify the decisions issued and the authorities responsible.

As pointed out earlier, between each stage of authority, many get filtered out, and there is no provision for recording the reasons for any course of action taken by any of the authorities in the SPS. Only recently, a marginal directive in this regard has been taken, with the Empowered Committee required to inform the DLSA and jail authority if it decides to sanction funds for a prison. Again, this only applies to the Empowered Committee, and there is no need to disclose the reason for accepting or rejecting a recommended prisoner. The UTRC is better in this regard, as the final authority is to provide reasons for the action taken by it. Still, the need to reason only arises in cases where the UTRC recommended a prisoner for benefit, and it need not disclose its reasoning for rejected cases. Moreover, the DLSA and the prison authority, much like in the SPS, need not disclose reasons for any action or inaction taken.

The opaque decision-making gets aggravated by the lack of any appeal or challenge mechanisms in both of these schemes. This means that any error or fault committed by any of the authorities cannot be corrected.  Additionally, the liberty of the prisoner in these schemes is entirely contingent upon identification, either that of financial position, as in the case of the Poor Prisoner Scheme, or of belonging to a certain category of under-trial prisoner, as in the case of UTRC. Any incorrectness in such an assessment without appeal risks the prisoner languishing in prison. This absence of a challenge mechanism also means that these prisoners have no remedy in the case that they get filtered out at any stage.  

Such a top-down state-centric approach disregards basic principles of natural justice, with individual rights being determined by administrative actions. The ramifications of the opaque decision-making on rights do not exist only in theory.  The then programme director of Fair Trial Fellowship at Project 39-A (presently, the Squared Circle Clinic), Medha Deo, notes that despite UTRC’s ad-hoc process for identifying beneficiaries being difficult, there is no way to challenge an eligible person who is not recommended, and even if recommended, there is no way to ensure implementation. The latest official data from UTRC shows that almost 3000 prisoners, who make up almost 30% of the total prisoners identified by DLSA, have been rejected by UTRC. In the Suhas Chakma Case, NALSA itself acknowledged that there could be major unintentional lapses in its administrative processes and, crucially, acknowledged significant filtration between those identified by the DLSA and recommended by UTRC (¶23). Again, this applies only to those rejected by UTRC; the difference in those filtered by the DLSA itself before being forwarded to the UTRC is significantly higher, as out of 500,000 prisoners, only 2.50% were identified by the DLSA. There is no record of the rationale behind rejecting any of the other almost half a million prisoners filtered by the DLSA.

With the Poor Prisoner Scheme, the scenario is significantly worse, as the MHA itself has pointed out the failure of State/UT authorities to utilise the funds made available by the Centre despite repeated follow-ups from the Centre. The latest available official data paints a dismal picture, with only 12 out of a total of 36 UT/ States having implemented the Scheme and a mere 144 prisoners benefiting overall during the course of two and a half years. This has resulted in only twenty-eight lakhs out of the sanctioned twenty crore rupees being utilised.  RTI reports received by India Spend serve to illustrate the inefficient functioning of the Scheme’s authorities at a micro level. In Odisha, for instance, only 3 prisoners were identified by the State despite a total of 84 district-level meetings being conducted. The situation has been so dire that the Supreme Court in Satendar Kumar Anil v. CBI  very recently issued directions to modify the SOP in October 2025, with the MHA complying for the most part and replacing the older SOP in December.

The procedural safeguards missing in these schemes are not extraordinary by any means and are simple measures that not only enable accountability on administrative authorities but also ensure procedural fairness, ensuring that the rights of prisoners are accorded minimum due protection by law. Before delving into the main thesis of this article, however, it is necessary to sketch a contextual framework of procedural safeguards in legal aid, from a constitutional perspective.

 39-A The Scope of Due Process

The State’s role in providing legal aid stems from Article 39-A of the Constitution, which mandates the State to ensure that “opportunities for securing justice are not denied due to economic or other disabilities”. True to the Article’s words, the judiciary has predominantly focused its interpretations of Article 39-A on access to legal aid based on socio-economic distributive justice, while emphasising the availability of legal assistance to everyone. This approach was well-established in cases like Husainara Khatoon v. State of Bihar and Khatri v. State of Bihar, where the Court held that the State should establish a dynamic and comprehensive legal aid programme, in which the State cannot be a passive actor waiting for a formal claim for legal assistance to act. The mandate under 39-A is to make available some form of legal representation to the people.

This is not to say that any legal assistance, even if inefficient, would be constitutionally sound. The Court has interpreted legal aid offered by the State to meet “reasonable, fair and just” procedure of law (Maneka Gandhi Due Process), required to deprive an individual of personal liberty under Article 21. The procedural due process is part of Article 21 and not Article 39-A. However, when the provision (or non-provision) of legal aid affects the liberty of an individual, this protection under Article 21 is read together with 39-A to impose certain obligations on the State’s legal aid. At this juncture, it is pertinent to ask what a “reasonable, fair and just” procedure even is. There is no definitive answer to this, as the Court has not clarified the term precisely. Instead, the Court has had to apply its mind in determining what due process is as applicable to the individual facts of a case. This applies just as much in the context of legal aid cases, where the Court has not defined what due process actually entails and has determined the same in individual cases as they arise.

The Court has clarified some procedural safeguards in this respect, which include the provision of counsel even in the absence of a formal request, a lawyer so provided to be reasonably remunerated, a certain level of competence and due diligence to be displayed by the counsel in the discharge of his duties, and the trial not to have been conducted in a manner prejudicial to the accused. As can be observed, all of these safeguards pertain to the trial alone, primarily due to the facts of these cases, which primarily involve trials. In this respect, Sekhri has pointed out how the Court’s focus, despite this right-based approach, was not on ineffective assistance but rather on the state’s obstruction of legal aid (for instance, failure to provide counsel), and invoked judicial duty to secure a fair trial with ineffective claims rather than assert that ineffective legal assistance amounts to a violation of Article 21. What this means is that the duty of the State under 39-A is fulfilled as long as some form of legal representation is provided, and in the case such representation is ineffective, the Court would bridge that gap by individually invoking the right to a fair trial. Both these factors have effectively led to due process being confined to trial-based legal assistance, much of which is dependent on Court intervention upon litigation.

In Mohd. Hussain, it was unequivocally held that the denial of assistance in a meaningful sense would be a violation of due process of law, explicitly noting the need incorporate bare minimum standards of due process in assistance. Nonetheless, much like its predecessors, Mohd. Hussain also pertained to trial-based legal aid. There have been no major developments since then. Thus, there is a crossroads where ineffective legal assistance is acknowledged to be a deprivation of liberty, attracting protection under Article 21. At the same time, however, this protection only really pertains to trial-based legal aid.

The Myth of Fair, Just and Reasonable

Thus far, it has been established that a fair trial is the only true procedural safeguard in jurisprudence, primarily as a result of the facts of the case. Cases where the Court was presented with inadequacies of the new class of legal aid in the manner discussed are rare, owing to the novel nature of such schemes. Nonetheless, the aforementioned Suhas Chakma and Satendar Kumar Antil are valuable in understanding the Court’s attitude to when such inadequacies do arise.  

Suhas Chakma is the strongest contender here, as in this case, the Court reviewed the working of free legal aid schemes under NALSA and was directly presented with instances of huge liberty-depriving lapses. Throughout the judgment, the Court constantly iterated the importance of quality legal aid, due process to be followed, etc., by citing the classical jurisprudence on legal aid. When NALSA admitted unintended lapses in identification and recommendation, however, the Court was simply satisfied in issuing directions that these lapses be self-corrected and that the SOP be revised by NALSA (¶34), unconcerned with the substance of these lapses, which again are purely internal administrative processes that deprive the liberty of prisoners. Admittedly, there was no challenge to the UTRC’s safeguards in the case, which may have contributed to the Court’s directions. Nonetheless, when it has been recognised that these were indeed significant lapses, to then view these as devoid of their impact on fundamental rights, leaving them to be corrected by the State, is to dichotomise rights under Article 21 and obligations of the State under 39-A. 

By contrast, the Court issued directions to periodically inspect and audit the functioning of lawyers under LADCS, even in the absence of any admissions by NALSA on the lack of quality in that scheme. This highlights that the well-established requirement of trial fairness in legal requires active judicial intervention to uphold the rights of prisoners. On the other hand, the administrative design of legal aid, regardless of whether such a design infringes on the liberty and freedom of the individual, is a mere policy choice.  

In Satendar Kumar Antil, the Court, owing to the paltry condition of the SPS’s functioning, had suggested numerous modifications to the SOP. These include the presence of a nominee in place of a district collector in the empowered committee, arranging a meeting with the prisoner, or using a form to ascertain financial position, acknowledgement of the Empowered Committee’s decisions via email, etc. As can be seen, all of these directions pertain to streamlining the scheme’s procedures by removing administrative bottlenecks, and the SOP is still functionally very similar. Still, most, if not all, of the procedural deficiencies persist patently, and the only changes made have been to basic administrative flow.

The approaches in these cases highlight how individual rights and procedural safeguards in the executive-driven legal aid are viewed distinctly from Article 21’s due process. Judicial intervention, if at all, is to examine the administrative processes in an isolated manner without considering the impact of the decision-making processes.  To be clear, this is not to detract from the need to improve administrative efficiency and implementation, which is very much the need of the hour in legal aid schemes (see here and here). However, these judgments ultimately set a precedent to view this emerging class as pure bureaucratic and policy-making endeavours.

The schemes are viewed as part of the policy domain of the State under 39-A, with ineffective functioning considered as a mere administrative default, and not as a direct determination or deprivation of liberty. Sekhri’s arguments on judicial focus on ineffective assistance are particularly relevant here. There is no prima facie obstruction to legal assistance in these schemes; in fact, it’s the opposite, as the State is voluntarily playing a proactive role targeting vulnerable persons, fulfilling the requirement under Article 39-A.  So as far as the Court is concerned, the State is fulfilling its obligations. This, apart from being problematic on account of effective assistance being reduced to a mere formality, presents another problem, as the Court can no longer resort to invoking trial on a case-by-case basis, as the deprivation of liberty occurs not before the Courtroom but veiled in opaque decision-making, which cannot be individually litigated and brought before the Court. This effectively uniquely situates non-trial legal aid under the mandate of 39-A, but free from the protection accorded under Article 21. Such a dichotomy is constitutionally untenable. It is well-settled that due process operates even in administrative actions when there is a determination of personal liberty under Article 21. A brief comparison with the more developed jurisprudence on premature release serves well here. Government policies on premature release from prisons must be carried out objectively and transparently, with due consideration being given to all convicts, and orders must explain the reasons for approving or rejecting a case. This is a rights-based incorporation of safeguards, illustrating that the State, even in its benevolent actions, must take steps to protect individual rights. By contrast, the Court, in respect to executive-driven legal aid, has taken a siloed reading of Articles 39-A and 21, putting them in separate siloes whereby rights matter as much as the State deems them to. 

Conclusion & The Way Forward

The Court has played a major role in institutionalising proactive legal aid, and ironically, it is this very development that now leads to deprivation of liberty, not in the inaction of the State but in policies that do not incorporate appropriate safeguards. This new class of legal aid must be integrated holistically together with the Constitutional guarantees under Article 21, and not isolated as mere State policy by the judiciary.

To do so would be very simple too: a mandated disclosure of the rationale behind each filtering-out decision, proper record-keeping of all decisions, the ability to challenge any decision rendered at any stage, and follow-up support from legal service authorities for rejected cases. Moreover, these safeguards are already in place in the premature release process, which is also heavily executive-driven, and importing these is a simple yet consistent way to guarantee a bare minimum consistency in effective functioning.

Bureaucratised legal aid must not be viewed in isolation from its impact on human rights. It is imperative to harmonise assistance with Constitutional guarantees, to give at least the bare minimum protection to the most essential rights. To not do so would not only be tantamount to a violation of fundamental rights but also defeat the purpose of effective legal aid in the very first place. The blind spot, a result of judicial oversight and changing approaches to liberty-determining legal aid, needs to be judicially rectified. Until then, legal aid remains a Kafkaesque filter where thousands are silently excluded from basic guarantees.

S.V. Ghopesh is a third-year student at the Tamil Nadu National Law University (TNNLU). He has interests in constitutional and technological law. Outside academics, he is an ardent fan of Arsenal Football Club and enjoys gaming.

Siddhanth Shamindran is a third-year student at the Tamil Nadu National Law University (TNNLU). He is enthusiastic on topics related to constitutional law and labour law. Beyond academics, Siddhanth is interested in History, Cinema and Theology.