Bail Pendency Is An Emergency Situation Needing Urgent Attention : Justice PS Narasimha

Justice Narasimha was delivering the keynote address at an event in Mumbai marking the release of the report ‘Legal Aid to Undertrials in Maharashtra (2018-2021)’ on January 28th, 2023. The report presents the experiences of the Fair Trial Fellowship (Project 39A, National Law University Delhi) and Prayas (Centre for Criminology and Justice, Tata Institute of Social Sciences, Mumbai) in an intervention programme instituted by Azim Premji Foundation in collaboration with the Government of Maharashtra to provide quality legal aid to undertrial prisoners in Maharashtra. The programme provided services to 9,570 undertrial prisoners, primarily from marginalised backgrounds, and secured the release of 4504 prisoners either on bail or through acquittal or discharge.

Justice Narasimha highlighted the importance of letting go of the focus current society has on the individual, which results in a few talented individuals working in silos. Instead, we should work towards developing effective institutions that can support and protect the rights of marginalised persons. The four institutions of the criminal justice system – the prosecution, the defence, the judge and the prison – currently operate independently and fail to recognise how interconnected they are in their impact on the individual who is accused of a crime. For example, defence counsel feel they are completely independent of the judge but fail to see their own responsibility when poor judgements are delivered. In his experience as a judge, the quality of a judgement is heavily impacted by the quality of representation in the matter.

He noted the importance of not creating alternate models that inevitably fall into the same trap that existing institutions do and praised the programme for its efforts to improve the current legal aid institution instead of creating a parallel one. The programme currently works in collaboration with the Maharashtra Prisons Department and the Maharashtra State Legal Services Authority. He also praised the programme for its unique and successful efforts in connecting the prison, judiciary and legal aid system – connections that have been otherwise lost in current practice. He also highlighted the Fellowship model of the programme, which acts as a link between the prisoner, the family and the lawyer, and suggested that such a model be integrated across district courts and High Courts. Referring to his personal experience as a legal aid lawyer in the Supreme Court, Justice Narasimha remarked how it was an acceptable practice for lawyers to routinely admit to lack of knowledge of even basic facts of the case in legal aid matters. He criticised the governance crisis that affects the current legal aid system, which results in basic information about legal aid clients being unavailable. Models such as the Fellowship could help remedy these concerns. He also noted that many of the gaps in the system can be sourced to a failure of implementation rather than an absence of provisions.

Justice R.D. Dhanuka (Judge, Bombay High Court Judge and Executive Chairperson, Maharashtra State Legal Services Authority) also spoke at the event and emphasised the necessity of providing competent legal representation to undertrials as a facet of the right to fair trial. He highlighted the importance of instituting a culture among lawyers of providing pro bono services to marginalised communities. He committed to complete cooperation from the Maharashtra State Legal Services Authority in securing equal justice for all undertrials.

Justice Abhay Mahadeo Thipsay (Former Judge, Bombay High Court) and Justice Dr. S. Radhakrishnan (Former Judge, Bombay High Court) were also in attendance and reflected on the importance of sensitising magistrates to the marginalisation of communities and the impact of the prison system as well as building awareness of the procedures under the law. Justice Thipsay also pointed out how a majoritarian mindset that demands for higher criminalisation and a regime of harsh punishments also influences the overall treatment of undertrials and adjudication in courts.

Justice Narasimha concluded that although the report raises fundamental concerns with the functioning of the present system, ‘knowledge is power’. He truly believes that we will be able to turn the tide in 6-7 years with a new generation that is capable and willing to take the steps that are necessary for reform. He ended by saying that ‘Our country will become a light for the rest of the world, guiding them on how institutions should be organised and run.’