ABSTRACT
This article examines the intersection of pro bono legal services and prison reform in India, with a focus on undertrial prisoners. With 75.8% of India’s prison population comprising undertrials, persistent pre-trial detention represents a systemic failure of constitutional guarantees. Through analysis of judicial interpretation, statutory provisions, and empirical data, this article argues that pro bono legal services are constitutional imperatives essential for equitable justice. The article proposes institutional solutions, including mandatory pro bono requirements, specialised defence units, and technology-enabled platforms, to address the access-to-justice gap.
I.INTRODUCTION
As of December 31, 2022, India’s prisons housed 5,73,220 inmates, with 4,34,302 (75.8%) being undertrials awaiting trial.[1] This proportion has risen from 67.72% in 2013, representing an 8.05 percentage point increase.[2] Prisons operate at 131% capacity,[3] while 66% of undertrial prisoners belong to marginalised caste groups, specifically Scheduled Castes, Scheduled Tribes, and Other Backward Classes.[4] These statistics reveal how poverty and social marginalisation create a differentiated justice system where liberty correlates with the ability to afford legal counsel.
Pro bono legal services emerge as necessary interventions in this crisis. While Article 39A[5] of the Constitution mandates free legal aid, the Legal Services Authorities Act, 1987, establishes institutional mechanisms; implementation gaps persist. This article demonstrates that consistent pro bono engagement contributes towards equitable justice for India’s undertrial population.
II.HISTORICAL ANALYSIS AND JUDICIAL INTERPRETATION
The evolution of legal aid jurisprudence underwent a critical transformation with Hussainara Khatoon v. Home Secretary, State of Bihar,[6] wherein the Supreme Court held that a speedy trial is implicit in Article 21[7] and that free legal aid constitutes a constitutional imperative under Article 39A.[8] The Court ordered the immediate release of over 40,000 undertrial prisoners who had been illegally detained beyond permissible periods,[9] declaring that “free legal services are an inalienable element of reasonable, fair and just procedure”.[10]
The Parliament responded with the Legal Services Authorities Act, 1987, which established the National Legal Services Authority (NALSA), and it mandated the establishment of Prison Legal Aid Clinics.[11] However, NALSA’s budget declined from ₹207 crore to ₹ 169 crore between 2017-18 and 2022-23, with utilisation dropping from 75% to 59%.[12] Paralegal volunteers receive a range of payments from ₹250 to ₹750 across different states.[13] Between April 2023 and March 2024, only 15.50 lakh persons received legal aid services nationwide.[14]
Section 436A of the Code of Criminal Procedure (currently Section 479 of the Bharatiya Nagarik Suraksha Sanhita) mandates the release on personal bond of undertrials who have been detained for at least half of the maximum sentence prescribed for the alleged offence.[15] The Bharatiya Nagarik Suraksha Sanhita, 2023, enhanced this provision by requiring the release of first-time offenders after one-third of their detention period has been served.[16] In Central Bureau of Investigation v. Dayamoy Mahato,[17] the Supreme Court reaffirmed that prolonged incarceration proceeding at a high pace violates Article 21.
Despite the Undertrial Review Committees being established pursuant to the Supreme Court’s directions, only 7421 prisoners secured release in 2024 from among 24,100 identified for review, representing a mere 1.4% of the total prison population.[18]
III. CURRENT LEGAL FRAMEWORK AND THE SYSTEMIC FAILURES
The framework for pro bono and state-funded legal aid to undertrial prisoners in India is based on specific constitutional and institutional provisions. Article 39A instructs the State to promote justice on the basis of equal opportunity and to provide free legal aid so that access to courts is not denied for economic or other reasons.[19] This provision must be read in relation to Article 21, where courts have treated legal aid for indigent accused as part of a fair and just procedure, including in the context of undertrial custody.[20] Access to justice for undertrials can be traced back to this interpretation of Articles 21 and 39A.[21]
The Legal Services Authorities Act, 1987, provides the main statutory basis. Section 12 lists categories entitled to free legal services, and persons “in custody” are specifically included.[22] A Commentary on this provision notes that undertrial prisoners in prisons and other custodial institutions fall within this category and may claim legal aid without separate proof of indigence.[23] Such persons can seek representation for trial, appeal and other proceedings by approaching the relevant Legal Services Authority. Alongside this, Section 304 of the Code of Criminal Procedure, 1973 requires the Court of Session to assign a pleader at State expense where an accused lacks sufficient means.[24]
At the institutional level, NALSA and the State and District Legal Services Authorities run legal services clinics in prisons. Studies on prison legal aid and prison manuals suggest that jail authorities and legal services bodies have an obligation to identify unrepresented undertrials and connect them with legal aid lawyers.[25] Much research on state legal aid and undertrials records that, in principle, all persons in custody may approach the DLSA or TLSC for legal aid, and that magistrates should inform unrepresented undertrials of this entitlement.[26]
Pro bono work now supplements this structure. The Nyaya Bandhu (Pro Bono Legal Services) initiative, under the Department of Justice, registers pro bono advocates and connects them through a digital platform with beneficiaries who are already eligible under Section 12 of the Legal Services Authorities Act, including persons in custody.[27] Official descriptions record the number of volunteer advocates and the formation of pro bono panels in several courts, and locate Nyaya Bandhu within the broader access-to-justice programme (DISHA).[28] The Nyaya Bandhu program registered 9,776 pro bono advocates as of November 2024,[29] yielding an approximate ratio of 1:44 against 4,34,000 undertrial prisoners. This ratio demonstrates the inadequacy of volunteer-based service models.
IV.PATH AHEAD: INSTITUTIONAL SOLUTIONS
A.Mandatory Pro Bono Requirements
The Bar Council of India should establish a requirement of a minimum of forty hours of annual pro bono service for all practising advocates, with at least twenty hours dedicated to undertrial representation. There are approximately fifteen lakh advocates in India, and this requirement would generate six crore pro bono hours annually, enabling each undertrial prisoner to receive approximately seven hours of legal representation for bail applications and expedited trial proceedings.
B.Specialised Undertrial Defence Units
Establishing district-level Undertrial Defence Units with the following composition: (i) 3-5 full-time legal aid lawyers appointed through competitive examinations, (ii) 10-15 rotating panel advocates from the private bar serving three-month terms, (iii) paralegals for case documentation, (iv) social workers to address non-legal barriers and (v) law student interns providing research support. These units would conduct weekly prison visits, assess bail eligibility, prepare applications under Section 479 BNSS, coordinate with Undertrial Review Committees, and maintain digital case management systems.
C.Technology-Enabled Legal Aid Platforms
Development of an integrated digital platform termed the “Undertrial Justice Portal” incorporating: (i) automated identification of prisoners approaching statutory detention limits, (ii) algorithmic bail eligibility assessment tools, (iii) secure video-conferencing infrastructure for remote consultations, (iv) automated matching systems connecting prisoners with volunteer advocates, and (v) real-time case tracking interfaces. Technology-enabled systems can substantially reduce the transaction costs associated with delivering legal aid, eliminate reliance on manual processes, and overcome geographic barriers to access to legal aid.
V.CONCLUSION
The current frameworks for undertrial detention represent a systemic failure of constitutional governance, wherein the constitutional promise of liberty and justice remains unfulfilled for hundreds of thousands of vulnerable citizens. Pro bono legal services constitute not charitable alternatives but essential components of constitutional compliance, serving as the mechanism through which all other rights are vindicated.
While India possesses extensive legal frameworks, spanning from Article 39A to Section 479 of the BNSS, implementation remains substantially inadequate. There can be institutional reforms, such as mandatory pro bono requirements, specialised Undertrial Defence Units, technology-enabled platforms, and the integration of clinical legal education, that represent a comprehensive strategy for mobilising our collective capacity to address this crisis.
The treatment of undertrial prisoners provides the definitive measure of whether there is a collective responsibility for ensuring the justice system’s legitimacy and accessibility. Pro bono engagement in undertrial defence constitutes not charity but rather the obligation to constitutional governance, its contribution to social justice, and its investment in the legitimacy of the legal system it serves. Only through systematic and institutionalised pro bono commitment can India transform its prisons from facilities that warehouse the unconvicted to institutions where procedural justice operates equitably, regardless of any discrimination, specifically economic status.
[1] National Crime Records Bureau, Ministry of Home Affairs, Prison Statistics India 2022 (Government of India, New Delhi, 2024).
[2] Sonal Matharu, “Indian Prisons Saw A Surge In Undertrial Prisoners Over A Decade”, IndiaSpend, Jan. 2, 2024, available at: https://www.indiaspend.com/police-judicial-reforms/indian-prisons-saw-a-surge-in-undertrial-prisoners-over-a-decade-887939 (Last visited on Dec. 19, 2024).
[3] Supreme Court of India, Centre for Research and Planning, Prisons in India 2024 (Supreme Court of India, New Delhi, 2024), available at: https://cdnbbsr.s3waas.gov.in/s3ec0490f1f4972d133619a60c30f3559e/uploads/2024/11/2024110677.pdf (Last visited on Dec. 19, 2024).
[4] Vivan Eyben, “Majority of Prison Undertrials Youth, From Oppressed Communities”, NewsClick, Jan. 9, 2024, available at: https://www.newsclick.in/majority-prison-undertrials-youth-oppressed-communities (Last visited on Dec. 19, 2024).
[5] Constitution of India, 1950, art.39A.
[6] AIR 1979 SC 1369.
[7] Constitution of India, 1950, art.21.
[8] Id.
[9] Lekshmi Priya S., “The ‘Mother of PIL’ Fought 100s of Cases to Provide Relief to Millions”, The Better India, Aug. 7, 2021, available at: https://www.thebetterindia.com/263231/kapila-hingorani-mother-of-pil-interview/ (Last visited on Dec. 19, 2024).
[10] Hussainara Khatoon, supra note 5.
[11] The Legal Services Authorities Act, 1987 (Act 39 of 1987), ss. 3-9.
[12] Lok Sabha Unstarred Question No. 2054, Ministry of Law and Justice (Mar. 28, 2023), available at: https://sansad.in/getFile/loksabhaquestions/annex/1710/AU2054.pdf (Last visited on Dec. 19, 2024).
[13] Id.
[14] Lok Sabha Unstarred Question No. 3045, Ministry of Law and Justice (Dec. 11, 2024), available at: https://sansad.in/getFile/loksabhaquestions/annex/1813/AU3045.pdf (Last visited on Dec. 19, 2024).
[15] The Code of Criminal Procedure, 1973 (Act 2 of 1974), s. 436A (inserted by Act 25 of 2005).
[16] The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 45 of 2023), s. 479.
[17] 2024 SCC OnLine SC 4189.
[18] “Over 7,400 Undertrials Released Under BNSS Provision in Last 4 Months: Centre”, Deccan Herald, Jan. 2, 2025, available at: https://www.deccanherald.com/india/over-7400-undertrials-released-under-bnss-provision-in-last-4-months-centre-3322838 (Last visited on Dec. 19, 2024).
[19] Government of India, Equal Justice and Free Legal Aid(Publication on Article 39A, Ministry of Law and Justice, New Delhi,2025).
[20] “Right to Free Legal Aid,” Manupatra RoundUp (2025) discussing Articles 21, 39A of the Constitution of India and Section 304 of the Code of Criminal Procedure, 1973.
[21] “Access to Justice for Undertrial Prisoners in India,” Lawjournals.org, Vol. 11, Issue 5 (2025).
[22] Legal Services Authorities Act, 1987, s.12.
[23] Supreme Court Legal Services Committee, Entitlement to Legal Services (New Delhi: SCLSC, 2025).
[24] Code of Criminal Procedure, 1973, s.304.
[25] Department of Justice, Government of India, National Legal Services Authority (NALSA) – Access to Justice for the Marginalized (2025).
[26] Project 39A, “Undertrial Prisoners, Legal Aid and Maharashtra Prison Manual 1979” (23 November 2022) Project 39A Blog, National Law University Delhi.
[27] Project 39A, “State Legal Aid and Undertrials: Are There No Takers?” (2022) Project 39A, National Law University Delhi.
[28] Press Information Bureau, Department of Justice, Government of India, “Nyaya Bandhu Legal Aid Programme” (29 June 2025).
[29] Press Information Bureau, Government of India, “Tele Law Services 2.0” and “System for Recording Pro Bono Legal Work” (2025).
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