Legal Aid System In Prisons Ineffective; Many Languish In Jails Because Of This : Advocate Sudha Bharadwaj

Mehal Jain

29 March 2022 6:04 AM GMT

"I think that all of us must collectively fight for the stronger legal aid system. Without that, Article 21 and 39A do not exist for people in the jails"

Civil rights lawyer and activist Sudha Bharadwaj in a recent webinar spoke about the lack of effective legal aid system in prisons. Ms.Bharadwaj, who spent as undertrial in the Bhima Koregaon case for over three years before she was granted bail by the Bombay High Court in December 2021, recounted her experiences in prison. She gave a direct account of the difficulties faced by several prisoners, especially those hailing from marginalised sections, in availing legal remedies. She also said that during her custody period she personally wrote hundreds of bail applications for fellow prisoners.

"When I was moved to Byculla, the news went around that Aunty is a lawyer and she is very discreet, she does not spread any gossip, you can go and discuss your chargesheet and she will make applications for you and make them in duplicate for you in Hindi. And I was soon flooded with many, many requests", she said.

She was speaking on the Conditions of Prisoners in Indian Prisons in a webinar organised by All India Lawyers Association for Justice (AILAJ).

Excerpts :

No definition of political prisoner

"There is no definition of a political prisoner in most states. The only state I know with a definition is West Bengal. In Andhra Pradesh and Telangana, though it is not written into the rules or the jail manual, political prisoners in practice are treated as such. So in all other states, you are a criminal and not a political prisoner. A person becomes a political prisoner not by definition in the jail manual but by the perception of the society outside. In the same Yerawada jail when Gandhiji used to be there, he was allowed to have long meetings with Jawaharlal Nehru and Vallabhbhai Patel and the British would allow them. That speaks for how important they thought or how afraid of the public sentiment they were that they permitted such a thing. We cannot even imagine that. Different people have different definitions of political prisoners. Many people who may be called political prisoners would have fallen in the 'anti-national' category, I think. So many sedition cases were put during the POSCO moment, the Sterlite movement, 48,000 such cases were put on the farmers recently. To me, all of them would be political prisoners because it is in the course of a movement, an effort. We have to strengthen the human rights organisation, the lawyers organisation. The concept of political prisoners in the British times was that there were A class prisoners and B class prisoners and that was on the basis of your status. I would not like to be treated differently from someone who is sleeping next to me because I have a different annual income. I would like to have the same rights of reading newspapers, meeting relatives and friends, to discuss with lawyers. But I would not like an income or any other kind of hierarchy or occupational wise segregation among the prisoners", activist-lawyer Sudh Bhardwaj has said.

Ineffective legal aid in prisons

"When I came to prison (in connection with the Bhima Koregaon incident), I became quickly aware that the lack of legal aid is not only ineffective but criminal. Then you realise how many people are actually languishing in jail because of this. What is the degree of miscarriage of justice which is possible. I am going to talk about the condition of legal aid in prisons. If you look at Articles 21 and 39A, it is the task and duty of the State to provide effective legal aid. When I was in Yerwada, we were in a single cell as we were considered too dangerous to be surrounded by other people; it is only when we would travel to the court in a van that I would get a chance to hear people's stories.

When I was moved to Byculla, the news went around that Aunty is a lawyer and she is very discreet, she does not spread any gossip, you can go and discuss your chargesheet and she will make applications for you and make them in duplicate for you in Hindi. And I was soon flooded with many, many requests. According to the present statistics that we have, around 67% of the women prisoners are undertrials. Among these also, around 37% of all women are in murder cases. Women involved in murder cases particularly are very soon abandoned and if you have murdered your husband or mother-in-law, then you will be abandoned from both sides. Women like this are completely dependent on legal aid, they don't have money, they don't have any family to come and meet them, they have nobody to follow up with the lawyer on the outside, so it is basically legal aid or nothing. 302 (IPC) could result in life imprisonment or even a death sentence. It is really a life and death situation for them to get a good legal aid lawyer.

My period in Byculla also coincided with Covid that really exacerbated the problems of the prisoners regarding legal aid even more. But somethings seem to be endemic. I met numerous women who had filed vakalatnamahs but did not know the name of their lawyers or their mobile numbers or the address of the lawyer. If by chance they were taken to the court and if by chance their legal aid lawyer happened to come to court, that is how they were able to meet and it was absolutely one-sided. The lawyer could meet them but they could not meet the lawyer. They could not instruct the lawyer in any manner, they could not inform the lawyer of illness in the family or death or of how their children are doing or about the special problems", she told.

"The other thing that I found was that not only legal illiteracy but illiteracy per se- not just being able to read and write- was also very rampant. And it is the marginalised and poor who are landing up in jails in much larger numbers so I could say that atleast 80% of the people in Byculla were those who could not read the Marathi chargesheet. They might have been able to read Spanish, Urdu, Bengali, English, but reading a Marathi chargesheet was beyond 80% of the people there. And if it is a legal aid lawyer, perhaps they have picked up your chargsheet from the court and you don't even know them, you don't even know what you are charged with. Sometimes during the Covid you did not even know if your chargesheet had come in or not, your precious right of default bail would be denied to you, you did not know if your application for default bail was being filed at all by a lawyer. It was a very miserable condition.

The other thing which I found when I read the chargesheet and I talked to people was the enormous gap between the woman's story and the story of the police. A case maybe of kidnapping and child trafficking- and the woman is very frankly saying that I did not have children and there was this woman and she was pregnant and she was unable to take care of the baby and I decided to shelter her and once the baby was born, an NGO turned up and said that you are doing this for trafficking. A woman accused of murdering her two children, when she told her story- she was convicted at quick rate by the court but actually without much defence put up- she was a young woman who had been harassed, beaten by her in-laws, her husband and had been thrown out at midnight from her home. She just picked up her two children, one was an infant of two years and one was a baby, and she just walked and walked and walked in what condition of depression and she flung herself into a river. She obviously wanted to commit suicide and unfortunately for her she survived and the children died and the case of murder of her children was on her. Today she stands convicted in the Yerawada prison. The role of the legal aid lawyer in actually coming to know what is the story and how to defend that person is something very important. Most of the time the legal aid lawyers were not informed even if bails were rejected, if the bails were filed at all or what was going on there. And these would be cases pending for years and years. Even getting out the documents or the chargesheet was a difficulty.", continued Ms. Bhardwaj.

Cumbersome process of surety resulting in deprivation of liberty

"I know the difficulties of legal aid lawyers.They were not allowed to use the local trains in the pandemic and if they were to come by cab and pay Rs.1000 and they were being paid only Rs.3000-4000 for the entire sessions trial, it would be very likely that they would not come. It is not that the NALSA is unaware of it. There were a lot of people who had got bails, but because of surety, they were unable to get out. Process of surety is so complicated in Mumbai that you have to have a property and a ration card. It is contradictory in terms- if you have a ration card, it is unlikely you will have much property if you are using a ration card. If you have a property, then it is unlikely you will have a ration card probably because you have thrown it away or forgotten about it or probably your grandfather had it and you never got it renewed. The very cumbersome procedure of surety- one of the women who died during Covid from my barrack had already got bail for Rs. 15,000 when she died. It was an unnecessary death. That is where the legal aid lawyer should have applied to convert the surety to cash, to say that the person is indigent and even such cash is not possible and let her out on a personal bond. You need an active lawyer out there talking for her.

Courts follow conservative attitude in granting bail; personally wrote hundreds of bail applications

"Even when the issue of granting interim bail came up with the Supreme Court suo motu giving directions that an effort should be made to decongest jails and high-powered committees were constituted in all states, the HPC at least in Maharashtra made such restrictive orders. Many, many acts were simply left out of the purview of interim bail. I can understand UAPA, I can understand MCOCA. NDPS, POCSO, MPID, all kinds of acts were left out. It was also stressed that it should not be treated as automatic, the greviousness of the offence should be seen, this was stretched to such an extent that what the judges did was to treat the application as bail on merits"

I know this personally because I personally sat down and wrote hundreds of applications for bail- there were people with asthma, TB, HIV, all kinds of comorbidities, women above 75 years of age, women with infants, pregnant women- nobody got bail. Interim bail actually went to people who were in theft which is a very, very petty crime and having a maximum sentence of three years. This was not a failure of individual legal aid lawyers but the entire legal aid system at a time when even the jails were trying to decongest. Jail had power to give parole to its convicts and it was doing it very liberally but the courts were not being liberal. And this is where the legal services authority should have stepped in and made sure medical papers were made available and it was not just the police that the judge was hearing..."

Legal aid system in need of repair; Prisoners have poor opinion of lawyers

"The legal aid system as regards the prison is in great need of repair to make it functional, effective. Prisoners have a very poor opinion of lawyers in general- they say, 'Lawyers paisa loot ke bhaag jaate hain ('lawyers rob you of your money and run away')'. Their opinion of legal aid lawyers is very poor, they call him 'Sarkari' lawyer (government advocate). They feel there is actually no point in having a legal aid lawyer", discussed Ms. Bhardwaj

"I was trying to look up and see if the NALSA has really taken account of this. I found there was a legal aid defence counsel pilot project which was so sensible. It said that in a district you must have some lawyers exclusively dedicated to legal aid, and out of them you would have one chief defence legal aid counsel and one deputy legal aid defence counsel who would have 10 years and 7 years experience who would monitor everything and then you would have to two or three young lawyers with up to 3 years of experience who would actually be working under them and there would be an entire installed infrastructure and decent salaries. Those young students were to be paid Rs. 20,000-40,000 and the chief and the deputy legal aid counsel were paid more. This is a realistic scheme. You go to any High Court and find this huge imposing building of the advocate general with so many people being paid to defend the state, but what about the citizen? And this is the citizen versus the state, the poorest of your citizens versus the state. They need atleast a fraction of that efficacy.

The other very interesting Nalsa scheme was the scheme for protection and enforcement of tribal rights- Forest rights, PESA and so on. These schemes are not being implemented and they are not being given the due importance that they should get. I even found there was a women prisoners campaign dealing specifically with the problems of women with children, if they are having families outside, the question of being rehabilitated, their health issues, their mental health issues and there was a recommendation that such campaign should continuously happen which obviously it did not happen", she mentioned.

Need for collective fight for stronger legal aid system

"I think that all of us must collectively fight for the stronger legal aid system. Without that, Article 21 and 39A do not exist for people in the jails. Fighting for justice is not a very easy thing, we know that. In Mumbai, a very bright young advocate Shahid Azmi was murdered because he was defending Muslim youth who were being implicated in blast cases and he was getting them acquitted. Advocate Vanchinathan was arrested during the Thoothukudi struggle. Advocate Deepika Singh, advocate Talib Hussain had faced harassment and attacks because they were supporting the Kathua rape minor survivor. Advocate Rajat Kalsan in Haryana- he was trying to defend the Dalit and he was nearly mostly attacked. The victim in the Hathras case, the lawyer there. Advocate Miya Abdul Qayyum of the Jammu and Kashmir High Court bar Association- the President- he was in jail shortly after the revocation of 370. This system has not even spared advocate Indira Jaising and she has been targeted after she represented the victim of sexual harassment who made a complaint against the ex- CJI. So this is not going to be an easy job. There is no excuse for ineffective legal aid in prisons. That is a constitutional mandate considering that we are depriving them of liberty", urged Ms. Bhardwaj.

"Prisons disallow unity of any kind. When I was there, I was told by many people they don't know about the status of their case and their bail and I would request my lawyers to look it up online and send me order copies. I was reprimanded by the superintendent that I cannot do it and there cannot be such kind of unity between the prisoners. I found a way about it because I started writing letters on their behalf. But this suspicion...Even the system of paralegal volunteers being chosen- who could help when there is a language issue, when the person has a mental problem- even the paralegal volunteers within the jail are not given a free hand to really work. It is mere lip service. Once I have come out, I found that I am getting numerous letters from people in jail and one or two of us who were released are actually helping them. But it is an informal thing. We are trying to contact their lawyers, request them to expedite the case, we are trying to get them the chargesheet, we are trying to send them the order copies. But this is an individual effort. I don't know whether there can be any kind of institutional mechanism for this", she explained.

"We still don't have as harsh sentencing as the US. The sentencing in the US is very harsh and that is particularly also because there is a corporate vested interest in it. Because corporates are running prisons and people in prisons are actually working and that is the most ideal form of work, the most docile work you can ever get in the world, very paltry wages and no unionisation. A judge was indicted because he used to give deliberately harsh sentences under corporate influences. But we have not got that here yet. But we must definitely, in this time of privatisation, fight against any effort to privatise or corporatise prisons. The second thing is to stress that though there is an enormous Supreme Court order after order of bail not jail, but in principle we find there is a very conservative attitude of the judges. Actually the judge should be asking what is the purpose of keeping this person in jail, is it necessary to keep the person in jail. On the other hand, the thing they ask is 'okay, shall we release them or not'. That thing has to be turned on its head. More effective means so that people can be released on bail must come into existence. In some acts like the UAPA or the NDPS, it has been inbuilt into the law that it is very difficult to get bail. But even otherwise it is also the judicial mindset. That is something on which, through a movement of lawyers, we can sensitise the judges. Because these are the same people who, if convicted, are let out on parole for a whole month by the jail and they come back and report back to the jail. There are very few instances of persons skipping parole. So why should they skip bail when they are not even convicted. There is a tendency to deny rights of parole and bail and this comes from increasing authoritarianism. Also abolishing the death penalty is very, very important. Here we are finding in our country that in more and more offences, death penalty is being sought. People's notions are being aroused about it- if it is a child rape, there should be a death penalty. Who are the people who eventually get the death penalty? It is the Kolis of the world who get it and not the Pandeys of the world who get it...Life sentence is defined very differently in different places. In Maharashtra, life sentence under UAPA could be 40 years, whereas in the state of Chhattisgarh, it would be 14 years. There must be some standardisation and some humanitarian concerns. Should we be really thinking about reformation and rehabilitation of prisoners or do we just want to punish them?", she continued.

Legal aid lawyer expected to be more accountable to the system than the client

"We have a system where a legal aid lawyer is expected to be more accountable to the system and not to the client. For example, it is so ridiculous that the person visiting the jail is different and the person appearing in the court is different. The lawyers who are the prison lawyers are those who meet the accused in the prison and they are then supposed to coordinate with the court lawyer who does not go to the prison. This is a ridiculous system. That Court lawyer needs to interact with his client and needs to know the story, needs to know what their requirements are and should be on regular communication, at least every three months and definitely when any substantial hearing is going on. They don't do it. Also legal aid lawyers do take money from the families. Unfortunately the legal profession is not made of saints and not everybody is very ethical in their practice. But in the prison system, if a person really has to live by that and if you are going to be paid Rs. 3000-4000 for the entire sessions trial which is pending many years, the amount of effort that you are likely to put into it is very little. Though there is a problem with the lawyers themselves but the problem is more with the system. If these lawyers can be paid the way the government lawyers, the people in the prosecution or the people who are in the government panel in the High Court are paid, if they are paid even a fraction of that, we will get very good legal aid lawyers", elaborated Ms. Bhardwaj.

"Cr. P. C. section 107 is mostly in the context of movements, It is a preventive detention. Actually the Cr. P. C. says that if you are prepared to sign a bond, then you should be released within 24 hours. You are not supposed to be in jail then. But the thing is that in many of these cases- there was a case where Dalits were being removed in an encroachment exercise and many people were in jail and once they went to jail, there was no officer before whom you could file your bond and get your bail. It was a deliberate move to keep these so-called troublemakers out of the way for a little while so they could do whatever they wanted with the land...Under Cr. P. C. section 110, you are declared as a habitual offender and there is an enormous bias in deciding who is one. Enormous number of adivasis have been put in this bracket of habitual offenders, Muslims are lately facing a similar situation of being habitual offenders very easily, people who are homeless or beggars or the Pardhi community which is a denotified tribe", she continued.

"In Yerawada, we did see that there was a list of lawyers and those lawyers would come in a week. Being a Central Jail, Yerawada had better facilities. Byculla jail was an undertrial Jail, which was actually reason to have more legal aid facilities. In Byculla, the legal aid was also being dispensed through an NGO- so there was an NGO which was doing legal aid and social work. But that NGO also had certain guidelines that they could not take up the cases of people involved in PITA, human trafficking or in POCSO or in NDPS. That is the perspective of the social worker. That cannot be the perspective of a legal aid lawyer because everybody has a right to prove their innocence. A lot of this also depends on the attitude of the prison authorities, the NGOs and the particular Legal service authority. But we must press for prison lawyers. The HRLA had a system of prison lawyers and some of the best criminal lawyers including my lawyer came from there. One another problem was that they used to get bail but then they used to be left high and dry at the time of trial", canvassed Ms. Bhardwaj.

"We were discussing this in the jail that why do people not bother about us. Two interesting things came up. One was that a woman said we should also have vote in the prisons. Then you will see all the political parties canvassing for us and saying what it is they will do to improve our condition. The second thing was we have changed our name from prison to correctional service. But the staff of the prison is barely enough to herd them in, lock up and leave. Where have they appointed anybody who is a counsellor, an educator. There should be a variety of staff, there should be a librarian among them, a teacher, there used to be a psychiatrist. In Byculla, there was a psychiatrist but she was dealing with the persons who are uncontrollable as per the other women constables, who get aggressive and beat up. But people go through other normal forms of feelings-maybe they are silent, maybe they are not eating their food- but people don't bother about these kinds of people. The space for Democratic rights is going on shrinking and shrinking and shrinking. As we expand that space, prisons must be very much a part of it. We have to take it on as a conscious agenda", she signed off.

Legal Aid System In Prisons Ineffective; Many Languish In Jails Because Of This : Advocate Sudha Bharadwaj

Mehal Jain

"I think that all of us must collectively fight for the stronger legal aid system. Without that, Article 21 and 39A do not exist for people in the jails"

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