Legal-assistance-at-early-stages-in-India.pptx

Law

1. Legal Assistance at early stages of Criminal Justice in India Ashok Kumar Jain Sunil Chauhan National Legal Services Authority

2. 2 Legislative Framework Legal Services Authorities Act Act enacted in 1987 Came into force on 09.11.1995 Establishes Legal Services Institutions at National, State, District and Taluk level Mentions eligible categories for free legal services

3. NALSA Patron-in-Chief Hon’ble Chief Justice of India Executive Chairman Hon’ble Judge, Supreme Court Member Secretary District Judge level Judicial Officer SLSAs SCLSC Patron-in-Chief Hon’ble Chief Justice of High Court Executive Chairperson Hon’ble Judge of High Court Member Secretary District Judge level Judicial Officer Chairman Hon’ble Judge, Supreme Court Secretary Addl. District Judge level Judicial Officer DLSAs TLSCs HCLSCs Chairperson Hon’ble High Court Judge Secretary Addl. District Judge level Judicial Officer Chairperson District Judge Secretary Civil Judge Rank Judicial Officer Chairman Senior Most Judicial Officer ORGANOGRAM OF LEGAL SERVICES AUTHORITIES/COMMITTEES IN INDIA 3

4. Presence of Legal Aid Institution s 4 Number of Panel Lawyers and Para Legal Volunteers are as on December 31, 2020.

5. Key Programmes 5

6. Total Arrested 5,213,404 Criminal Cases Pending as on 21.05.2021 28,199,605 244,841 Undertrial prisoners with duration of confinement upto 12 months As on December 31, 2019 “

7. Constitutional & Legal Framework for providing legal assistance at early stages Right to Life: Article 21 of the Constitution of India Article 22 of Constitution of India Section 12 of Legal Services Authorities Act, 1987 Section 41 D Code of Criminal Procedure

8. Nandini Sathpaty versus P.L.Dhani AIR 1978 SC 1025 : the right to legal assistance to any accused under circumstances of near-custodial interrogation. Custody can be without arrest. Shobharam Vs State of Madhya Pradesh 1979 SC 1377 : Article 22(1) is mandatory Khatri (II) versus State of Bihar AIR 1981 SC 928 : Constitutional obligation to provide legal aid not only when trial commences but also when the accused is remanded from time to time Mohammad Ajamal Kassab versus State of Maharasthra AIR 2012 SC 3565 : Right of arrested person to get legal assistance Judgements of Supreme Court M. H. Hoskot v. State of Maharashtra (1978) 3 SCC 544 , right to free legal Services was recognised as an essential component of procedural justice. D.K. Basu v. State of West Bengal AIR 1997SC 610 , the Supreme Court held that the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation

9. NALSA’S steps in evolution of legal assistance at early stages of Criminal Justice Year Process 1998 NALSA adopted a Model Scheme for Legal Aid Counsel in all Courts of Magistrate, which mandated the appointment of remand and bail lawyers (also known as legal aid counsels) to be attached to each court. 2015 NALSA amended the NALSA (Legal Services Clinics) Regulations 2011, to enable the constitution of legal aid clinics in prisons. 2016 in 2016 NALSA prepared the Standards Operating Procedures for Representation of Persons in Custody to streamline the functioning of prison legal aid clinics. 2019 NALSA sought to streamline and strengthen the functioning of remand lawyers, and developed a protocol - Early Access to Justice at the Pre-Arrest, Arrest and Remand Stage for providing legal assistance to suspects and arrestees.

10. EARLY STAGES OF LEGAL ASSISTANCE Pre-Arrest Stage Arrest Stage Remand Stage

11. 16,833 Police Stations 8,083 Remand Advocates 2.08 Average number of Police Stations under a Remand Advocate Remand Advocates & Police Stations

12. OBJECTIVES OF EARLY ACCESS TO JUSTICE To assist in avoiding unnecessary arrests. To assist the arrestees in filing bail applications and furnishing bail bonds. To provide legal assistance to needy suspects and arrestees during interrogation and other early stages of investigation. To decrease the vulnerabilities of suspects and arrestees.

13. Features of legal aid to persons in custody Seven categories including prisoners in custody, women and Children are entitled to free legal aid irrespective of their income Merits test is not strictly applied in case of persons in custody. It is assumed that they have prima-facie case for legal aid Judicial officers are manning Legal Services Institutions Legal aid is available in police stations, trial courts as well as in appellate courts Available on all days including holidays Government gives the entire budget for legal aid programmes

14. Five-point strategy for providing legal aid at early stages Spreading awareness amongst people about procedural safeguards and right to legal assistance Training of legal aid lawyers for rendering timely and effective legal assistance. Sensitization of police officers about the right to legal assistance at police station. Ensuring quality of legal assistance, keeping in view the performance indicators. Deputing male and female lawyers as per the perceived requirement, and sharing their contact details in advance with police stations and courts.

15. LEGAL ASSISTANCE AT THE PRE-ARREST STAGE The police has to inform the suspect that free legal assistance can be availed from the LSA. All suspects shall be given a copy of a leaflet of rights upon arrival at the police station and shall be allowed to keep it with them for the duration of their stay. The person to be interrogated must be given adequate opportunity to read and understand the information. Notifying the suspect of the right to a lawyer Upon receiving the intimation of the request of the suspect to have free legal assistance during interrogation, the legal services authorities as per the duty roaster prepared with regard to various police stations, shall inform the deputed lawyer who, shall go to the concerned police station for providing legal assistance. Deputing a lawyer to the police station At the pre-arrest stage, the lawyer shall advise and assist the suspect in the police station by apprising himself of the allegations against the suspect, explaining the alleged offence, providing legal advice and assistance, advice the police when necessary, intimate concerned High Commission, Embassy / Consulate in case the suspect is a foreigner, make arrangements for interpreter, if necessary, etc. Role of the lawyer

16. LEGAL ASSISTANCE AT THE ARREST STAGE Section 41 D Cr.P.C mandates the police to intimate the arrestee of his right to have legal assistance. A letter of rights in the form of a leaflet may be given to the arrestee. In case the arrestee wants to avail the legal assistance, an intimation of such requirement shall be given by the police to DLSA and the duty lawyer. In case of women and children in conflict with law, intimation in all cases be given to the DLSA and duty lawyer. Notifying the suspect of his right to legal assistance Upon receiving the intimation of request of the arrestee to have free legal assistance during interrogation or interview, the legal services authorities shall inform the deputed lawyer, as per the duty register who, shall go to the concerned police station for providing of legal assistance. Role of DLSA The duty lawyer shall provide legal assistance to the arrestee for which he shall apprise himself of the allegations against the accused, grounds of arrest, explain the alleged offence, provide legal advice and assistance, take necessary steps for securing bail in case of bailable offences, intimate the concerned High Commission, Embassy / Consulate, in case of a foreigner, make arrangements for interpreter, if necessary, etc. Role of a Duty Lawyer

17. LEGAL ASSISTANCE AT THE REMAND STAGE Arrested person has a right to be represented during remand. The right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. Right of representation DLSAs shall depute Remand Advocates in the Magisterial Courts, Sessions Court and also in the courts of Executive Magistrate as per the requirement. Duty rosters may be sent to the police stations and to the courts so as to give prior information of the Remand Advocates. DLSA shall ensure that duty lawyers attend to the remand work even during holidays and after court hours as and when unrepresented arrestee is produced for remand. Role of DLSA To obtain copy of application for remand, to interact with the arrestee, to challenge the arrest, to file for bail application, to furnish sureties, to translate the documents, to intimate the concerned High Commission, Embassy / Consulate, in case of a foreigner, to make submissions before the Court on non production of accused on a subsequent remand, to provide assistance through video conferencing, to represent during preventive detention proceedings, etc. Role of the Lawyer

18. ROLE OF STATE LEGAL SERVICES AUTHORITIES (SLSAs) SLSAs, to publicize the rights of persons at pre-arrest, arrest and remand stage including right to free legal aid through leaflets, hoardings, workshops, etc. SLSAs to coordinate with the State Department of Home and Director General of Police to mutually workout the modalities for effective implementation of the early access to justice framework. SLSAs, to plan and implement capacity building programs for panel lawyers touching upon essential aspects of law pertaining to Arrest, Remand and Bail.

19. Legal Assistance at… Legal Services to Suspects & Arrestees 2020( Year affected by pandemic)

20. Challenges in implementation timely information of suspects and arrested persons not received from the police officers, primarily due to non-awareness on the part of the police officers, Hesitancy on the part of suspects to avail legal assistance due to poor understanding of its significance Providing of Legal Services at odd hours in hilly and remote areas Monitoring challenges in monitoring progress of every case

21. Challenges during Covid Difficulties in conducting interactions with suspects and arrested persons Lack of information about suspects and arrestees from police stations Restricted working of Courts Lack of information as to whether suspects and arrestees were informed of their right to legal aid Monitoring could not take place during lockdown period

22. Quality assurance measures

23. Other supportive methodologies

24. Number of meetings of the Under Trial Review Committees by DLSAs

25. the way forward Future strategies to effectuate the implementation of the protocol, include frequent consultations among legal services authorities for addressing gaps in legal assistance provided during the early stages; enhanced capacities of legal service providers on rights of suspects and accused; improved coordination between legal services authorities and police departments through joint trainings and workshops, improved monitoring over services provided sharing experiences; strengthened documentation and reporting

26. Thank You…