India’s legal aid crisis: What the data really shows

When the Supreme Court's Justice Vikram Nath told a room of law students at NALSAR University that “free legal aid cannot be poor legal aid”, it was not a rhetorical flourish; it was a judgment drawn from lived realities inside India’s criminal justice system.

His remarks came during the release of Legal Aid for Undertrial Prisoners: Fair Trial Programme in Pune and Nagpur (2019–2024), a multi-year study that offers rare insight into how legal aid actually functions for those in custody. The findings echoed a wider national pattern: nearly three-fourths of India’s prisoners are undertrials and access to free legal aid remains shockingly low.

The programme’s evidence aligns with earlier research. A study by Surendranath and Andrew (2022), based on National Crime Records Bureau (NCRB) data on undertrial admissions across India between 2016 and 2019, found that only about 7.91% of undertrials used free legal aid, despite having a constitutional right to it. Justice Nath has publicly highlighted the same figure. For most accused persons, therefore, representation exists in principle but rarely in practice.

Article 39-A, inserted in 1976, directs the State to ensure that “opportunities for securing justice are not denied… by reason of economic or other disabilities.” To operationalise this duty, the Legal Services Authorities Act, 1987 created a nationwide framework of National Legal Services Authority (NALSA), state legal services authorities and district legal services authorities.

But budgetary trends show a persistent gap between constitutional aspiration and administrative reality. The India Justice Report 2022 calculated that combined spending by NALSA and state legal services authorities amounted to only ₹4.57 per person per year in 2020–21. Many states under-utilised their allocated budgets and panel lawyer payments were often delayed for months. Honoraria under the NALSA (Free and Competent Legal Services) Regulations, 2010 remain extremely low, making sustained preparation, prison visits and repeated hearings financially unrealistic.

This underinvestment intersects with structural issues documented by national data. The NCRB’s Prison Statistics India 2023 reports that 73.5% of India’s prison population consists of undertrial prisoners, a proportion that has remained stubbornly high. Over recent years, successive editions of Prison Statistics India have also shown that many undertrial prisoners remain in custody for periods longer than the maximum sentence prescribed for the offences alleged against them. Large numbers of undertrials in bailable cases continue in prison because they cannot furnish sureties. These patterns amplify what the NALSAR report found inside prisons: the right to representation is unevenly realised.

The Supreme Court has repeatedly reinforced the centrality of legal representation. In MH Hoskot v. State of Maharashtra (1978), Justice Krishna Iyer held that where an accused cannot afford counsel, the court must assign a competent lawyer to ensure a fair procedure under Article 21. In Khatri (II) v. State of Bihar (1981), the Court held that legal aid must begin at the first production before a magistrate and that the State “cannot plead financial or administrative inability”. In Suk Das v. UT of Arunachal Pradesh (1986), it held that denial of legal aid vitiates the entire trial.

Yet, the gap between doctrine and practice remains wide. The Fair Trial Programme found that even after legal aid counsel was appointed, many undertrials met their lawyer infrequently. Continuity across hearings was inconsistent, lawyers were often unaware of case histories and prison-court coordination was poor. Several undertrials believed they must pay a lawyer - even at devastating financial cost - because free counsel would not be effective. This perception is not unfounded: with token remuneration and unpredictable payments, the system structurally discourages the time-intensive work needed to defend the poorest.

In 2022, NALSA introduced the Legal Aid Defence Counsel Scheme (LADCS), modelled on public defenders. LADCS appoints full-time, salaried defence lawyers barred from private practice to ensure continuity from remand to appeal.

Official data confirms the scale of expansion:

●       Approved outlay: ₹998.43 crore (FY 2023–24 to 2025–26)

●       Operational districts (as of 30 December 2024): 654

●       Total staff: 5,251

●       Full-time defence counsel: 3,448

This is India’s most ambitious structural reform in legal-aid delivery. However, measurable indicators are still limited: caseload distribution, time spent per client, frequency of prison visits and continuity of representation across hearings are not yet uniformly tracked. For LADCS to succeed, outcome-level monitoring must be institutionalised.

The disproportionate presence of Dalits, Adivasis, Muslims and poor communities in India’s prisons is well-documented across NCRB data, Project 39A studies and criminal-justice research. Vulnerable groups experience multiple layers of exclusion - economic, social and institutional -that directly shape their access to legal representation. Women and transgender undertrials also face barriers such as fewer legal-aid interactions, lack of confidential meeting spaces and inadequate legal awareness.

Justice Nath emphasised the need for disaggregated data - by caste, religion, gender and region - to identify where legal-aid delivery structurally breaks down. Without such data, policymaking risks becoming generic and inequalities remain invisible.

India’s legal-aid ecosystem spans courts, prisons and legal services authorities, but their data flows are fragmented:

• Prisons track whether an undertrial has a lawyer.

• Courts track cause-lists, adjournments, and appearances.

• DLSAs track appointment letters and honoraria claims.

Yet, these lines rarely converge.

The result is predictable: magistrates may not know whether a legal aid lawyer has met the accused; legal services authorities may not know whether representation continued after the first hearing; and prisons cannot verify whether counsel-client interaction occurred. This fragmentation weakens accountability and allows procedural compliance to substitute for substantive defence.

Most failures in India’s legal aid system stem not from lack of intention, but from structural gaps:

• Under-funded and under-utilised budgets

• Low remuneration leading to high attrition

• Caseload imbalance with no quality standards

• Poor prison–court–DLSA coordination

• No mandatory continuity of representation

• Unreliable or delayed honoraria

These are governance problems that require administrative reform, real-time monitoring and financial rationalisation; not merely judicial admonition.

If LADCS is to transform legal aid rather than replicate existing weaknesses, three priorities must guide policymaking:

1. Transparent performance standards for public defenders, including caseload limits, mandatory client meetings and reporting mechanisms.

2. Integrated real-time data systems connecting prisons, courts and legal services authorities to track representation from first production to final disposal.

3. Disaggregated legal aid outcomes to identify where marginalised communities are disproportionately denied effective defence.

These reforms would align India’s legal-aid system with Article 21 and Article 39-A - not as aspirational text, but as living guarantees.

India’s criminal justice system continues to operate with a deep representation gap. The data says so: undertrial rates remain high, legal-aid utilisation remains low, budgets remain under-spent and institutional coordination remains weak. The launch of LADCS signals a structural shift, but meaningful change will depend on measurable improvements - faster case progression, continuity of counsel and accessible, competent defence.

When Justice Nath warned that “free legal aid cannot be poor legal aid”, he pointed to an administrative truth: constitutional rights fail when the State does not invest in the systems that make them real. Effective legal aid is not charity. It is a public service, a constitutional guarantee and the foundation on which equal justice can stand. India’s democracy will be stronger when legal aid is treated with the same urgency, resources and accountability that the State currently reserves for prosecution. Only then will the Constitution’s promise of fairness begin to match the lived experience of those who rely on it most.

Sahil Hussain Choudhury is a lawyer and constitutional law researcher.