Introduction: why criminal justice needs legal aid reform
The sea crept in quietly, and the night shattered. Gunfire tore through Mumbai and fear took the streets, but courage stayed unbroken on the night of 26 November 2008. In the aftermath, India had a lone surviving accused to deal with for the terror attacks: Mohammed Ajmal Amir Kasab, the only attacker captured alive.1 His case, Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra,2 highlighted and affirmed the principle that fair procedure must be guaranteed even to the most despised accused. It is an unvarnished truth about the criminal justice system, and one not widely accepted by the general public; yet, despite the huge public outrage, the courts ensured that Kasab was represented by counsel. The Supreme Court declared that “[t]o deal with one terrorist, we cannot take away the right given to the indigent and under-privileged people of this country by this Court thirty one (31) years ago”, and held that the right to legal aid, which flows from Articles 21 and 22(1) of the Constitution, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate, and that failure to provide a lawyer to an unrepresented accused at the commencement of the trial vitiates the trial.3 This episode reinforces the idea of legal aid not as an act of sympathy but as the nuts and bolts of the Indian criminal justice system, ensuring its credibility, fairness and moral legitimacy.
India’s post-colonial criminal justice system, one of the largest and most powerful in the world, has long struggled under what may be described as systemic inefficiencies, chronic overcrowding, delayed trials and prolonged pre-trial detention.4 These problems expose how uneven and fragile access to legal aid remains. Unable to guarantee the protection of the rights of vulnerable and marginalised accused persons, the system has deepened the crisis in India’s prisons and courts.5 The India Justice Report 2025 sets out the problem plainly. Nationally, average prison occupancy stands at 131 per cent of capacity, and in 2022 twelve prisons recorded occupancy of over 400 per cent, an obvious infrastructural strain.6 Even more troubling, and a consequence of delayed trials, is that undertrial prisoners make up 76 per cent of the prison population.7 The data lay bare a structural crisis of judicial pendency and court vacancies, while legal aid, funded at a scant Rs. 6.46 per capita,8 fails to meet the constitutional demand placed on it. In this context, strengthening legal aid emerges not only as a constitutional obligation under Articles 219 and 39A10 but as a necessary reform to ease the crisis and restore faith in justice delivery.
The first line of defence: legal aid in the criminal justice system
The earliest legal aid movement is traced to an enactment introduced in France in 1851 to provide legal assistance to the indigent; about a century later, from 1952, the Government of India also began to address the question of legal aid for the poor at conferences of Law Ministers and Law Commissions. In 1980, a national committee, the Committee for Implementing Legal Aid Schemes (CILAS), was constituted under the chairmanship of Justice P.N. Bhagwati. The Legal Services Authorities Act, 1987, which came into force on 9 November 1995, then gave legal aid a statutory base, providing for the National Legal Services Authority (NALSA), the State Legal Services Authorities (SLSAs) and the District Legal Services Authorities (DLSAs).11 Legal aid in India is not only a constitutional mandate but a necessity rooted in the Preamble’s promise of justice, social, economic and political; in the guarantee of equality before the law in Article 14;12 in the requirement of a fair, just and reasonable procedure under Article 21;13 in Article 22(1),14 which protects the right of an arrested person to consult and be defended by a legal practitioner; and in the Directive Principle in Article 39A,15 which places on the State the obligation to provide free legal aid and secure equal access to justice, so that justice does not appear remote to those in need. Nor does it end there, for legal aid runs through the criminal statute as well: Sections 47 and 4816 of the Bharatiya Nagarik Suraksha Sanhita, 2023 require that an arrested person be informed of the grounds of arrest and, where applicable, of the right to bail, and that a relative or friend be told of the arrest, while Section 34117 requires the court to assign an advocate, at the expense of the State, to defend an unrepresented accused who lacks sufficient means to engage one. Together, these provisions show that legal aid works as the connective spine of India’s criminal justice framework.
India’s criminal justice system is overloaded by delays, prisons crowded well beyond capacity and an ever-increasing undertrial population, in which poverty translates into prolonged confinement. These failures hollow out the constitutional guarantees and render fair trial rights illusory for people without effective representation. Since the courts have stressed that legal aid is not merely a welfare measure but a systemic necessity, strengthening it is an indispensable step towards restoring constitutional legitimacy in the administration of criminal justice.
Why does legal aid fall short?
India’s criminal justice system today bears an exorbitantly high burden of undertrial prisoners: over 4.34 lakh people were awaiting trial on 31 December 2022, many for prolonged periods, and over the preceding decade the share of undertrials detained for three to five years almost doubled while the share detained for more than five years tripled.18 Although the constitutional framework mandates timely access to justice and free legal aid under Articles 2119 and 39A,20 implementation on the ground falls far short of the textbook interpretation of these articles. Legal aid mechanisms have undoubtedly expanded their interventions, but reality exposes critical challenges that undermine their effectiveness within the criminal justice system.
A. Inadequate pro bono and legal aid counsel ratio
As Justice Sanjiv Khanna observed in January 2023, India’s per capita lawyer ratio is better than that of most countries, yet legal aid remains unavailable to a large section of the population.21 India has approximately 20.13 lakh advocates enrolled with the State Bar Councils.22 However, only 41,553 lawyers were empanelled for legal aid nationwide in September 2024.23 The disparity is all the more serious because the legal aid framework potentially covers 80 per cent of the population, which works out to roughly one empanelled legal aid lawyer for every 27,500 eligible persons. The result is poor access to legal aid services.
B. Lack of dedication and institutional incentives
It has been observed that legal aid institutions are not always driven by the goal of free legal assistance envisaged in the constitutional and statutory framework. This lack of institutional commitment harms the quality of legal services provided to beneficiaries. It erodes people’s confidence in the legal aid system, and many litigants now say that they would prefer privately engaged advocates to legal aid counsel. Studies have shown that poor communication between counsel and clients, inattentive handling of cases by legal aid lawyers and delays in court appearances reduce effective access to justice and deepen perceptions of apathy and unreliability in the system.24
C. Delays in remuneration and inadequate payment
The National Legal Services Authority (NALSA) administers the legal aid framework, and its regulations require a legal services institution to pay the panel lawyer’s fee without delay once the report of completion of the proceedings is received.25 In practice, however, payments are not made on time because the processes are lengthy and complex.26 This places financial strain on lawyers from modest backgrounds and weakens their commitment to the work. Payment for legal aid work is also generally considered low. The India Justice Report 2025 notes that the typical honorarium for mediators in court-annexed mediation, funded through NALSA and the State governments, is Rs. 5,000 for each successful mediation and only Rs. 2,500 for an unsuccessful one.27 Such payment does not match the time, expertise and responsibility these professionals bring, and it discourages them from further engagement.
D. Poor quality of legal aid counsel and disparity with private legal representation
A persistent problem with the legal aid system is the quality of service provided by Legal Aid Counsel (LAC), which often compares poorly with the services of private advocates. This frequently drives poor people to hire private lawyers even at considerable cost.28 According to one study, more than 70 per cent of legal aid beneficiaries in each zone surveyed said that they availed themselves of free legal aid because they lacked the resources to hire private counsel.29 The same study indicates that around 47 per cent of women who were aware of free legal aid declined it owing to a lack of faith in the legal aid system. There is a persistent preference for private lawyers, even among people who lack the resources to afford them.
Reimagining the legal aid system
A. Integrating senior law students in the legal aid framework
The number of legal aid beneficiaries per lawyer is very high in India. This shortfall of legal aid lawyers calls for capacity-enhancing reform rather than recruitment through conventional methods alone. Fourth- and fifth-year law students should therefore be brought into the legal aid system. Law students at this advanced stage have mature legal knowledge, and their academic level is on par with that of postgraduate students in other fields.30 Placing senior students in legal aid clinics in their final semesters, and allowing them to assist and plead in courts under the guidance of clinical faculty or designated advocates, would significantly increase the capacity of legal aid in India. This should be done with the permission of the judiciary.
B. Adopting a performance-based payment system
To ensure that legal practitioners engage with meaningful intent, they should be compensated through a performance-based payment system linked to their handling of each procedural stage of the case (such as filing bail applications and client interaction). This would encourage genuine participation without tying payment to case outcomes, and would in turn promote accountability and the quality of legal aid representation in general.
C. Incorporating a mixed public-private legal aid model
A mixed legal aid system stands at a crossroads, with public legal participation on one side and private participation on the other. If such a system evolved in India, it would distribute the work efficiently: the defence and investigative functions would be performed by private practitioners funded by the State, while the State retained supervisory power over them. This would increase public trust, as competence would rise under the oversight that State involvement provides.
D. Proper utilisation of allocated funds
Even as allocations have increased, legal aid funds, particularly those from NALSA, remain significantly underutilised. The India Justice Report 2025 records that between 2020 and 2023 NALSA’s allocation rose by 77 per cent to Rs. 175.4 crore and State funds by 33 per cent to Rs. 866 crore, yet in 2022–23 States utilised only 59 per cent of their NALSA allocation, down from 76 per cent the previous year, and national per capita spending on legal aid stood at just Rs. 6.46.31 Restrictive and rigid administrative spending norms also make it difficult to deliver justice at the grassroots level.
E. Increasing awareness about legal aid
A major impediment to the smooth functioning of the legal system in India is beneficiaries’ lack of awareness of constitutional rights such as Article 39A, which provides for free legal aid. Whatever the efficiency of, and financial investment in, the pro bono and legal aid systems, they will never be effective unless the target population is properly informed. Improving the legal literacy of society requires more than an ordinary, isolated initiative.32 Legal awareness should therefore be raised through community-based legal literacy programmes, including legal aid camps, workshops, seminars and street plays in local languages.33 Civil society organisations, especially those working with women and children, together with law students and paralegal volunteers, can be of great help in carrying legal literacy to the grassroots. Coordinated efforts among law schools, legal services authorities, the police and the district administration can extend the outreach of legal aid services.
Conclusion
Legal aid stands at the intersection of constitutional morality, human dignity and procedural fairness in the Indian criminal justice system. Although it is deeply rooted in constitutional provisions, it is seriously undermined by delays, overcrowded prisons, a huge undertrial population, low awareness, low-quality representation and insufficient use of funds. Without it, a fair trial would remain a dream for the marginalised. Strengthening legal aid through capacity building, student involvement, a mixed system and greater legal literacy is therefore non-negotiable if justice is to move from thought to reality.
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Footnotes
1. Venkatesh Nayak, Read Reports on the 26/11 Mumbai Attacks Accessed from the Maharashtra Legislature Under the RTI Act, While the Union Home Ministry Denies Access, Commonwealth Hum. Rts. Initiative (Nov. 23, 2018), https://humanrightsinitiative.org/blog/read-reports-on-the-2611-mumbai-attacks-accessed-from-the-maharashtra-legislature-under-the-rti-act-while-the-union-home-ministry-denies-access.html (stating that Ajmal Kasab was “the only perpetrator who was captured alive”).
2. Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 (India).
3. Id. ¶¶ 477–84, 487 (relying on Hussainara Khatoon (IV) v. Home Sec’y, State of Bihar, (1980) 1 SCC 98, ¶ 7 (India), which held free legal services to be an essential ingredient of a reasonable, fair and just procedure implicit in Article 21).
4. India Justice Report, India Justice Report 2025: Ranking States on the Capacity of Police, Judiciary, Prisons and Legal Aid 7, 78 (Apr. 2025), https://indiajusticereport.org/files/IJR%204_Full%20Report_English%20(1).pdf.
5. Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4 Third World Legal Stud. 107, 108 (1985), https://scholar.valpo.edu/twls/vol4/iss1/6.
6. India Justice Report 2025, supra note 4, at 7, 74.
7. India Justice Report 2025, supra note 4, at 7.
8. India Justice Report 2025, supra note 4, at 132.
9. India Const. art. 21.
10. India Const. art. 39A.
11. Irfan Ahmed Ansari, An Analysis: Legal Aid in the Criminal Justice System, 4 Indian J. Integrated Rsch. L. 249, 251 (2024), https://ijirl.com/wp-content/uploads/2024/09/AN-ANALYSIS-LEGAL-AID-IN-THE-CRIMINAL-JUSTICE-SYSTEM.pdf; see also Nat’l Legal Servs. Auth., About NALSA, https://nalsa.gov.in/about-nalsa/ (last visited Oct. 15, 2026).
12. India Const. art. 14.
13. India Const. art. 21.
14. India Const. art. 22(1).
15. India Const. art. 39A.
16. The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, India Code (2023), §§ 47–48.
17. The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, India Code (2023), § 341.
18. India Justice Report 2025, supra note 4, at 78 (4,34,302 undertrial prisoners as of Dec. 31, 2022).
19. India Const. art. 21.
20. India Const. art. 39A.
21. Anurag Tiwary, India’s Per Capita Lawyer Ratio Is Better Than Most Countries, But Legal Aid Unavailable to Many: Justice Sanjiv Khanna, LiveLaw (Jan. 21, 2023), https://www.livelaw.in/top-stories/indias-per-capita-lawyer-ratio-is-better-than-most-countries-but-legal-aid-unavailable-to-many-justice-sanjiv-khanna-219614.
22. Rajya Sabha Starred Question No. 232, Types of Courts in the Country (answered Aug. 10, 2023) (answer of Arjun Ram Meghwal, Minister of State (Independent Charge), Ministry of Law and Justice), annex. II (India), https://sansad.in/getFile/annex/260/AS232.pdf?source=pqars (20,13,081 advocates enrolled with State Bar Councils).
23. India Justice Report 2025, supra note 4, at 122, 131.
24. Oliva Chakraborty, Brief Study on the Concept of Free Legal Aid and Its Challenges in India, 6 Int’l J.L. Mgmt. & Human. 3396, 3401 (2023), https://ijlmh.com/paper/brief-study-on-the-concept-of-free-legal-aid-and-its-challenges-in-india/.
25. National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010, reg. 14(3), Gazette of India, pt. III, sec. 4 (Sept. 9, 2010) (as amended Aug. 28, 2019).
26. Anubhab Mukherjee, Efficacy of Legal Aid: Bridging the Justice Gap, 8 Galore Int’l J. Applied Scis. & Human. 29, 39 (2024), https://doi.org/10.52403/gijash.20240304 (also posted at https://www.researchgate.net/publication/386274719_Efficacy_of_Legal_Aid_Bridging_the_Justice_Gap).
27. India Justice Report 2025, supra note 4, at 160.
28. Ajay Singh Rathore, Article 39A: Is Probono Legal Aid Comeatable?, 2 Jus Corpus L.J. 761, 765 (2022), https://www.juscorpus.com/wp-content/uploads/2022/08/145.-Ajay-Singh-Rathore.pdf; see also Chakraborty, supra note 24, at 3401–02; Mukherjee, supra note 26, at 39.
29. Jeet Singh Mann, People Barely Trust Free Legal Aid Services in India, ResearchGate (May 2022), https://www.researchgate.net/publication/360463522_People_barely_trust-free_legal_aid_services_in_India.
30. Supriyo Routh, Providing Legal Aid: Some Untried Means, 50 J. Indian L. Inst. 375 (2008), https://www.jstor.org/stable/43952162.
31. India Justice Report 2025, supra note 4, at 130–32.
32. Rathore, supra note 28, at 769.
33. Mukherjee, supra note 26, at 39.