Towards a new paradigm of intervention in criminal justice

Legal Aid on the Ground: Report of the Fair Trial Programme, by Monica Sakhrani, The Square Circle Clinic, NALSAR University of Law, Hyderabad, 2025. Pp. 164. Licensed under Creative Commons Attribution–NonCommercial–ShareAlike 4.0 International.

Spanning six years of sustained engagement across two major prison–court ecosystems in Pune and Nagpur, a recent report from the Square Circle Clinic undertakes a task far more demanding than documentation. It anatomises how legal aid functions on the ground and exposes the routine manner in which constitutional guarantees are denied to India’s undertrial prisoners.

Undertrial incarceration in India is not merely the outcome of harsh laws or judicial conservatism. As the report demonstrates with empirical clarity, it is equally the product of administrative neglect and inertia. Bail applications are not filed in time, legal representation is delayed or absent, sureties cannot be produced and information fails to reach families, courts and legal services authorities. 

The Fair Trial Programme (FTP) was first initiated in 2018 at Project 39A of the National Law University, Delhi and later housed at the Square Circle Clinic at NALSAR University of Law, Hyderabad. Through legal fellows and social work fellows who regularly visited prisons in Pune and Nagpur, FTP facilitated undertrial prisoners’ access to state sponsored legal services. The value of the report lies in using this intervention to illuminate structural difficulties, opening up a broader dialogue on the quality of legal aid and institutional accountability. Between 2019 and  2024, FTP handled 5,783 cases involving 4,649 undertrial prisoners across both cities, aiding the releasing of around 1700 inmates. Of these, many received detailed intervention while others were provided targeted one-time assistance. 

One of the report’s most striking findings concerns the procedural status of cases at intake. Nearly 92 per cent of detailed intervention cases were still at the pre-trial stage and almost half were at the remand stage when prisoners approached the programme. This reveals a critical paradox: the earliest moments of the criminal process—arrest, first production, and remand—are the most decisive for liberty, yet remain the stages at which legal aid is most absent.

The client profile that emerges is that of the structural underclass of undertrial prisoners. Most clients were young men under 30, from disadvantaged communities, with education limited to primary school or below. The majority earned less than ₹10,000 per month and were engaged in precarious forms of work that made sustained engagement with legal processes difficult. Most possessed no moveable or immoveable assets. Nearly one-third were migrants, half were not in contact with their families, and many lacked identity or residential documentation.  For many clients, therefore, legal assistance alone was insufficient; they required sustained non-legal support during incarceration and after release.

Access to bail

It is to the programme’s credit that approximately half of its clients secured release, with bail granted in over three-fourths of applications filed by it. Yet the report is unsparing in its analysis of why release remains elusive even after favourable orders. Trial courts frequently impose cash bail conditions that clients cannot meet, fail to transmit bail orders promptly to prisons, or continue to impose onerous conditions despite repeated Supreme Court admonitions. In over two-thirds of cases, no bail application had been filed at the time of intake. In many cases, undertrials remained incarcerated despite being granted bail simply because compliance requirements such as sureties, documentation and verification were treated as the prisoner’s private responsibility. Poverty, migration, mental illness, and social fragmentation rendered such compliance practically impossible.

Here, the interdisciplinary design of FTP’s socio-legal mediation assumes central importance. While legal fellows drafted applications and argued cases, social work fellows traced families, arranged documentation, coordinated with prisons and courts, and ensured that judicial orders translated into actual release.

Guilty pleas

One of the report’s most troubling sections concerns the institutional push towards encouraging undertrials accused of petty offences to plead guilty. Guilty pleas serve multiple systemic interests: they manage prison overcrowding, increase disposals, and reduce docket pressure. However, as the report demonstrates, this practice has generated a sharp divergence between law in the books and law on the ground. Most guilty pleas are entered in petty offences, particularly theft. FTP counsels clients against pleading guilty, explaining the long-term legal consequences, including rearrests and cascading vulnerabilities. Yet many clients prefer guilty pleas because they are unable to comply with bail conditions, fear prolonged incarceration, or remain unaware of the implications of a conviction.

The report characterises this phenomenon as a form of “malignant paternalism”and recommends greater use of the Probation of Offenders Act, 1958 and a more substantive functioning of Undertrial Review Committees. The concern is sharpened by recent legislative changes under the Bharatiya Nyaya Sanhita, 2023 particularly enhanced punishment for repeat offences of petty organised crime through Section 303(2) and the introduction of Section 112. These provisions disproportionately imperil those being informally nudged into guilty pleas.

Mentally-ill and women prisoners

The report reveals that the Bharatiya Nagarik Suraksha Sanhita, 2023 fails to take cognisance of the Mental Healthcare Act, 2017 and continues to infantilize persons with mental illness. The standard question most trial judges ask the accused to determine mental illness is merely what they had for breakfast over the last two days. Even in cases where statements of the witnesses disclose that the offence was committed due to mental illness, no cognizance is taken by the police and the courts. 

Women prisoners and those with mental illness were disproportionately arrested for serious offences, including murder, often in cases where victims were family members, further eroding the possibility of familial support. Not only were their crimes intrinsically linked to disempowerment and violence within the family structure, the report also records that they are subjected to greater surveillance and moral policing. 

Institutional analysis

Beyond individual cases, the report’s most enduring contribution lies in its detailed institutional analysis and thorough examination of District Legal Services Authorities (DLSAs), Prison Legal Aid Clinics (PLACs), Undertrial Review Committees (URCs), and the Legal Aid Defence Counsel system. It notes inconsistency in the functioning of these mechanisms due to high dependency on local leadership, bureaucratic delay and weak monitoring. PLACs emerged as a cautiously optimistic space while URCs often function mechanically, despite repeated Supreme Court directives.

The report’s intellectual honesty is most evident in its reflexive conclusion. The authors do not present FTP as a substitute for the state. They acknowledge high staff attrition, intensive training demands, and the emotional toll of prison work. The programme’s shift away from direct intervention towards institutional strengthening reflects realism rather than retreat. Framing legal aid as essential infrastructure rather than charity, it pushes for institutionalisation of this labour.

For judges, legal services authorities, policymakers, and scholars, this report is less a celebration of a programme than a mirror held up to everyday criminal justice. Its most unsettling message is also its most valuable: the denial of liberty in India is procedural and banal but as a result, eminently preventable.

Justice Vikram Nath put it succinctly at the report launch in New Delhi: “The measure of our legal system lies not in the elegance of our jurisprudence or the efficiency of our procedures, but in how we treat the most vulnerable within it. Every undertrial languishing beyond his due, every person denied effective legal aid, is a reminder that our work is far from complete.”