1. An Undertrial & The Criminal Justice System

2. Judiciary Prison Police Oversight Lawyer Undertrial & the Criminal Justice System

3. Right to Legal Representation 1 1

4. Article 22(1), Constitution of India Right to consult, and to be defended by, a legal practitioner of his choice Article 39(A), Constitution of India The State to provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Section 304, Code of Criminal Procedure In a trial before the Court of Session if the accused is not represented by a pleader, and the accused has not sufficient means to engage a pleader, Court shall assign a pleader for his defense at the expense of the State Right to Legal Representation in Indian Law

5. Legal Backdrop Ranchod Mathur Wasawa v. State of Gujarat (1974) 3 SCC 581 Duty of a Judge is to inform an indigent regarding his right to counsel. Competent advocates to be appointed, able to handle complex cases, not patronizing gestures to raw entrants at the Bar. Khatri v. State of Bihar AIR 1981 SC 928 State is constitutionally bound to provide free legal aid to an accused who is unable to secure legal services on account of his poverty.

6. Legal Backdrop Hussainara Khatoon (II) v. State of Bihar AIR 1979 SC 1369 If free legal aid is not provided to accused who require it, then the trial will run the risk of being ‘vitiated’ as it will be in contravention to Article 21. Ranjan Dwivedi v. Union of India (1983) 3 SCC 307 Government should implement legislation that has appropriate schemes for free legal aid.

7. National Legal Service Authority Chief Justice of India State Legal Service Authority Chief Justice of the High Court District Legal Service Authority District Judge Established by the Legal Services Authorities Act, 1987 NALSA SLSA DLSA Legal Services Authorities

8. Mandate of LSAs To provide free and competent legal services to eligible persons To hold Lok Adalats To conduct legal awareness programmes Persons Eligible for Legal Aid (Section 12) Member of SC/ST Woman / Child Human Trafficking / Begar Disabled Person Mass Disaster Victim Industrial Workman Person in Custody Economic Means Test

9. Process to acquire Legal Aid Eligibility Criterion Existence of Prima Facie case in favour Provide State Counsel Pay Court fee and other expenses Under Section 2(1)(c) ‘Legal Service' includes… Rendering of any service in the conduct of any case, and Giving of advice on any legal matter.

10. PitfallsPossibilities No Lawyer Application to LSA Inform Prison Staff Inform Magistrate Legal Aid Clinic in Prison Lawyer not Efficient Inform LSA Inform Magistrate Unable to meet Lawyer Involve Prison Staff Specify Separate Place Liberalize Rules The Way Forward

11. Educating Inmates and their families about legal processes? Get involved in Counselling and Conciliation Centres at Districts? Get involved in community participation in prisons? Possibility of publicizing case studies? The Way Forward

12. Bail…Not Jail! 2 2

13. Whether one has a right to bail depends upon the kind of offence that the person is accused of having committed. Does one have a right to Bail?

14. What are Bailable Offences? 1 1 Minor Offences: Simple Hurt, Criminal Intimidation, etc. 2 2 Bail is a Matter of Right 3 3 Police is Duty bound to Inform right to Bail [Section 50(2), Cr.P.C.] 4 4 Release on Personal Bond, if bail not furnished within 7 Days [Section 436(1), Cr.P.C.]

15. What are Non-Bailable Offences? 1 1 Serious Offences: Murder, Rape, Dacoity, etc. 2 2 Bail is NOT a Matter of Right 3 3 It is the discretion of the court whether to grant or not

16. Considerations for Grant of Bail Nature / Enormity of Charge Nature of Evidence Against Accused Likelihood of Person Absconding / Commit Crime Likelihood of Tampering Evidence Likelihood of Influencing / Threatening Witnesses Criminal Record / Previous Convictions Larger Interest of Public / State 1 2 3 4 5 6 7

17. Special Considerations for Bail Under the Age of 16 Accused is a Female Accused is Sick / Infirm Court finds it just and proper for any reason 1 2 3 4 Under Section 437 (1), Criminal Procedure Code Limitations may be overlooked if the accused is:

18. Right to Bail Section 167, Criminal Procedure Code Where the police fails to complete investigation within… 90 60 DAYS In respect of offences punishable with death, life imprisonment or more than 10 years For other offences, i.e., equal to or less than 10 years On the expiry of 90 or 60 days, as the case may be, the accused shall be released on bail

19. Right to Bail Section 436A, Criminal Procedure Code Detained for Half of the Maximum prescribed imprisonment as an Undertrial shall be released by the Court on his personal bond with or without sureties Offences punishable by sentences other than death penalty No person to be detained for more than the maximum prescribed imprisonment

20. Right to Bail Section 437(6), Criminal Procedure Code shall be released on Bail Charge of a Non-Bailable offence triable by a Magistrate 60 DAYS Trial cannot be completed within after the first date fixed for taking evidence accused has been in custody during the whole period

21. Right to Bail Section 437(7), Criminal Procedure Code Person should be released on Bond without sureties for his appearance to hear judgement Person accused of Non-Bailable Offence under Custody Reasonable grounds to believe that the person is not guilty Conclusion of trial but judgement is yet to be delivered &

22. PROBLEM 1 Q. Does the surety/accused have to deposit the money pledged in his/her bond at the time of release on bail?

23. SOLUTION 1 A. NO! The money is to be given only if s/he defaults in appearing before the court.

24. PROBLEM 2 Q. Can a surety be rejected on the ground that the person is from a different district or state?

25. SOLUTION 2 A. NO! A surety cannot be rejected on the ground that the person is from a different district or state. (Moti Ram v/s State of M.P. AIR 1978 SC 1594)

26. PROBLEM 3 Q. What if the person applying for bail cannot furnish the bail amount or is unable to find a surety?

27. SOLUTION 3 A. Regard to the circumstances of the case and bail amount should not be excessive. [S.440, Cr. P.C.] Convincing the court to release her/him on personal bond [Hussainara Khatoon v/s Home Secretary, State of Bihar, AIR 1979 SC 1360]

28. PROBLEM 4 Q. Can the court impose any condition while granting bail in cases of non-bailable offences?

29. SOLUTION 4 A. NO! Conditions imposed on person should not be unreasonable or too harsh or amount to virtual denial of bail.

30. Prison Visiting System 3 3

31. Government Prison Staff Board of Visitors Main Agencies that make PVS work

32. Closed nature of the Prison System: no public participation, no scrutiny Atmosphere of secrecy: public information on prisons is scanty Complete control & supervision of the prison staff: potential for corruption and human rights violations State’s supervision: a mere formality Why do we need PVS?

33. Initial talk with the Superintendent / Jailor Visit the prison premises Consult the registers Interview the prisoners in private Talk to other prison staff Make notes in the Visitors’ Book Concluding talk with the Superintendent/ Jailor Steps to a Prison Visit

34. Material Conditions (i) Capacity and occupancy of the establishment (at the time of the visit) (ii) Cells (iii) Food (iv) Personal hygiene Regime and Activities (i) Administration of time (ii) Activities offered (iii) Contacts with the outside world Checklist for Prison Visitor

35. Medical Services (i) Access to medical care (ii) Medical staff Prison Staff Treatment Protection Measures (i) Informing detainees (ii) Disciplinary procedure and sanctions (iii) Complaint and inspection procedures (iv) Separation of categories of detainees (v) Registers Checklist for Prison Visitor

36. Thank You!