The legal aid grenade

Having a dedicated legal aid unit could be the difference in whether an undertrial gets timely bail or ends up languishing in prison. Representational pic/istock

Three years after the National Legal Services Authority (NALSA) established a system of free legal aid to ensure fair criminal defence for all undertrials, irrespective of their means, the same body now seems set to roll back this crucial system.

In an August 4 directive, NALSA directed that Legal Aid Defence Counsel (LADC) contracts not be renewed - starting with Punjab, Haryana and Chandigarh from September, and then everywhere else as existing contracts expire. In the interim, district judges have been asked to assign legal aid cases to members of the Bar, preferably young lawyers. More than 8400 LADCs across the country could be affected, while nearly three lakh accused persons, including over 25,000 in Maharashtra, face uncertainty over the continuity of free legal representation.

For Mumbai, this is significant because the city has developed a dedicated LADCs structure specifically for criminal defence, rather than relying entirely on the traditional panel-advocate model system (in which cases are assigned to empanelled advocates who have their own private practice, but are assigned legal aid cases in exchange for an honorarium).

In Mumbai, LADCs handle critical matters including remand, bail, trials, appeals and prison legal aid work. The proposed shift to assigning cases to members of the Bar has raised questions over whether accused persons and undertrials - particularly the thousands who are economically vulnerable - will receive the same continuity of defence.

This will come into play not too far in the future; most Mumbai LADC contracts are due for renewal in the first or second quarters of 2027.

The uncertainty has already prompted one of Mumbai's Assistant LADCs to resign and move to private practice recently. A clear position from NALSA or the State law and judiciary system could help end the ambiguity. Until then, the uncertainty over the system's future could affect the functioning and morale of advocates working as LADCs.

2002
Year in which NALSA set up LADC scheme, which transitioned to a central sector scheme in FY2023-24

What's at stake for Mumbai?

The LADC model introduced by NALSA in 2022 (effective from 2023) was designed to address shortcomings associated with the older panel-lawyer system.

Instead of a lawyer taking up a legal aid case while also maintaining their private practice, LADCs were appointed as full-time, salaried criminal defence lawyers, as part of a free legal aid programme.

Mumbai LADCs hold a legal aid camp at Arthur Road jail for undertials and inmates. Pics/By Special Arrangement

Their responsibilities extend across the criminal process, including pre-arrest legal assistance, remand proceedings, bail pleas, trials and appeals, prison visits, and communication with accused persons' families.

The Mumbai framework comprises one Chief LADC (10+ years' practice), three to seven Deputy Chief LADCs (7+ years of experience) and approximately 16 Assistant LADCs (0-3 years). Accused persons can access them through prison paralegal volunteers, the District Legal Services Authority (DLSA), or courts directing the State to provide free defence counsel.

An LADCs departure can affect pending trials, bail applications, remand proceedings, prison visits, client consultations and defence strategies already developed over months or years.

This makes the possible transition considerably more complicated than simply replacing one lawyer with another.

The real concern then, is what happens to the undertrial?

For an accused who can afford a private lawyer, a change of counsel may be inconvenient.

For someone who cannot afford one, it can be far more consequential.

Continuity matters, because a person arrested in a criminal case may need legal assistance within hours, be it for remand, bail or communication with family. A lawyer appointed later may end up spending precious time just catching up with details of the FIR, remand papers, chargesheet and previous orders.

The August 4 directive does not mean that Mumbai's legal aid system disappears immediately. But it does put the criminal defence model on a countdown.

The question is whether the replacement system will preserve three things that matter most to an accused who has no money: speed, continuity and quality of representation. When a person is in custody and cannot afford a lawyer, will the legal aid system present an effective defence lawyer at the moment it matters most?

Here's how Mumbai's LADC scheme is different from the panel-lawyer system:

>>  LADCs are full-time criminal defence lawyers and salaried members of a dedicated legal aid cell. Salaries range from Rs 70,000-Rs 1 lakh for Chief LADC, to Rs 50,000-Rs 75,000 for the deputies, and Rs 25,000-Rs 45,000 for the assistant LADCs. LADCs do not have a private practice and dedicate all their time and resources to representation of the defendant until the case reaches its culmination.

>>  On the other hand, empanelled lawyers run their private practice alongside the individual legal aid cases they are allocated. They are paid an honorarium for the legal aid cases assigned to them.

>>  Since this is an LADCs full-time job, they are subject to performance reviews and are accountable for results, time spent working on a case, visiting the defendant. Recently, an Assistant LADC in Mumbai was even terminated for poor performance. On the other hand, there is no monitoring system for panel lawyers.

>>  The interim directive is to replace LADCs with several years of experience with younger members of the Bar, which raises yet another question of efficacy.

>>  The debate is not about whether independent advocates can provide good legal aid. Many do. The question is whether a distributed panel system can reproduce the availability, monitoring and continuity that LADCs was specifically created to provide.

LADC vs the Bar

The decision to stop renewal of legal aid defence counsel contracts is significant because the LADC system itself was created to address concerns with the earlier system. In the older system, since panel lawyers could simultaneously undertake private work, NALSA's 2022 scheme was aimed at providing effective legal assistance to even those who could not afford dedicated private representation.

The irony now is that a system introduced to make legal aid universal and free is being reconsidered because of concerns raised by another stakeholder - the Bar.

The Bar's objection

Lawyers in Punjab, Haryana and Chandigarh had raised concerns that the LADC network was creating a parallel, State-funded criminal defence structure and reducing opportunities for independent members of the Bar. This led to prolonged agitation by sections of the legal fraternity.

NALSA's August 4 decision appears to mark a significant policy response to these concerns. A committee has been constituted to revisit the LADCs framework, with Bar representatives asked to submit constructive suggestions regarding operational problems.

The eventual outcome could therefore be either LADC 2.0, or a return to the older panel system, or a hybrid model. For Mumbai, the hybrid option could potentially preserve a core dedicated criminal defence structure, while allowing more cases to be distributed among independent advocates.

8400
No of LADCs across the country

What does this mean for undertrials?

Advocate Samyak Narayan Gimekar, Chief LADC, Mumbai, explains the path ahead

Could weaker access to LADCs mean poor undertrials spend longer periods in jail simply because they cannot secure timely bail?
SNG: Yes, that is a genuine concern if the transition results in gaps in representation. For an accused who cannot afford a private lawyer, legal aid is often the only practical safeguard against unnecessary or prolonged incarceration. Bail and remand proceedings are particularly time-sensitive. The advocate must examine the case papers, obtain instructions from the accused, and make an effective submission before the court. If there is a delay in appointing competent counsel, an undertrial could remain in custody not because bail is legally unavailable, but because effective legal assistance has not reached the accused in time. The purpose of LADCs is precisely to address this problem by having lawyers whose principal responsibility is criminal legal aid.

Samyak Narayan Gimekar

For an accused who cannot afford a private lawyer, how critical is continuity in representation from remand to trial?
SNG: Continuity is extremely important. A lawyer who represents an accused from the remand stage develops an understanding of the allegations, case papers, prosecution theory, defence strategy, and instructions of the accused. If the lawyer changes midway, the new advocate has to reconstruct that understanding. In a complex criminal trial, that can take considerable time.

For an economically vulnerable accused, continuity is even more important because the person does not have the financial ability to repeatedly engage lawyers or obtain independent legal opinions. The LADCs structure has an institutional advantage because the defence is conceived as a continuing service rather than a series of isolated appearances.

Will the impact of this fall disproportionately on the poor?
SNP: Without doubt. A person who can afford a private lawyer can change counsel or seek specialist advice; a poor accused does not have that choice. For them, the quality and continuity of State-provided defence can determine whether their legal rights are effectively protected.

LADCs are advocates from the Bar itself, selected through a structured process and dedicated to legal-aid defence. Around 8400 defence counsels, supported by LADC staff, currently work across India under this institutional framework, with monitoring, assessment, and accountability mechanisms.

This is not simply an employment issue for LADCs or a conflict with the Bar. It is about whether the State should dismantle a specialised defence structure it has created, trained and developed, and whether that would weaken continuity of representation for poor accused.

LADCs have not merely performed; they have delivered. They have devoted their professional time and attention to legal aid matters and have taken responsibility for the cases entrusted to them. The question that naturally arises is: after advocates have dedicated themselves full-time to the State's legal-aid responsibility, what do they get in return if the very system in which they have served is suddenly phased out?

‘Suspending the system without audit is unethical'

Valay Singh, co-founder and director of the India Justice Report, says LADCs in Mumbai have helped hundreds of poor undertrials last year alone

Valay Singh, co-founder and director of the India Justice Report, says, "The India Justice Report strongly believes that LADCs are doing meaningful work in most districts in the state and country. It has been less than three full years since the scheme became functional, and to suspend it without any audit is not only unethical and counterproductive but procedurally sets a poor precedent. We need to review the scheme, identify gaps and strengthen it further."

Valay Singh

"Last year alone, LADCs filed nearly 2000 cases in Mumbai district," he adds, "and while exact data is not available, a large number would be of poor and illiterate undertrials. With the scheme in limbo, the legal fate of cases being handled by LADCs is also at risk of falling through administrative cracks. We would request state governments to pick up the expense for dedicated public defenders and not depend on central funding."

25,000
No of undertrials in Maharashtra that may be affected

Proven impact in Maharashtra

Vijay Raghavan, Professor, Centre for Criminology and Justice, TISS, says the LADC scheme is an improvement on the earlier system

"The LADC scheme is an improvement over the earlier system of appointing legal aid lawyers on an honorarium basis," says Vijay Raghavan, Professor, Centre for Criminology and Justice, TISS, and Project Director of Prayas, a field action project of TISS. "These are qualified, full-time and salaried advocates whose work is supervised by the DLSA Secretary. The work of the LADCs is headed by a Chief LADC and two Deputy LADCs. They are also supposed to visit prisons regularly as part of the Jail Legal Aid Clinics, which are run with the support of Prison Para-Legal Volunteers and civil society organisations such as Prayas, a field action project of TISS working with undertrial prisoners across 13 prisons in Maharashtra. They provide legal guidance to undertrials, arrange legal aid, file bail applications, seek reduction of bail amounts, and request release on PR Bond where undertrials are unable to arrange the required sureties or cash bail."

Prof Vijay Raghavan

He adds, "They also file applications for the release of undertrials under the Support to Poor Prisoners scheme of the Government of India. Any decision to suspend this scheme without a thorough evaluation is not a good idea. Prayas-TISS has conducted a study of the LADC scheme in four districts of Maharashtra, which shows that overall, the scheme has been of great help to undertrials in securing release on bail or Personal Recognisance Bond. While there are some implementation issues that need to be addressed, these can be tackled by strengthening the human resources and infrastructure gaps identified in the scheme."

Field research shows impact

A TISS-Prayas study highlights promise and challenges of LADCs in four districts in Maharashtra, pointing out that while full-time salaried defence counsels improve access for undertrials, staffing and infrastructure gaps remain.

The study examined LADCs functioning in Mumbai, Thane, Raigad, and Latur. Its key findings were:
>>  LADCs improved continuity: Regular prison visits and dedicated case management enhanced client confidence.
>>  Team structure: Division of labour among chief, deputy, and assistant counsels raised service quality.
>>  Monitoring mechanisms: Monthly and quarterly reviews strengthened accountability.

Challenges in the system
>>  Shortage of personnel vs heavy caseloads
>>  chief counsel burdened with both legal and administrative duties
>>  Inadequate office space, clerical support, and digital systems.
>>  Limited coordination with judiciary, prisons, and police.

The researchers' recommendations are to increase counsel strength in proportion to caseload, deploy social workers and partner with NGOs for bail sureties, family support, and rehabilitation, and hold periodic meetings with police, judiciary, and prison authorities. Other suggestions were to introduce regular training in criminal law and trauma-informed care, and to hold awareness drives in prisons and communities to expand outreach.

Despite the limitations, the study underscores LADCs as a shift from charity-based legal aid to a rights-based institutional model. By embedding salaried defense counsels within the
legal aid system, it challenges the perception that free legal aid is inferior.

Top court to hear plea against the decision

On August 25, a Supreme Court Bench of Justices MM Sundresh and PB Varale issued notice to the Centre and NALSA on a petition challenging the non-renewal decision. The petitioners have raised concerns including the possible disruption of representation in pending criminal cases, particularly those involving undertrial prisoners.

However, the issuance of notice does not by itself amount to a stay of NALSA's directive. For Maharashtra, the immediate consequence is therefore that existing LADC contracts continue until their respective expiry dates, unless there is a subsequent judicial or administrative change.