COMPARATIVE ANALYSIS OF STATUTORY PROVISIONS Vis-à-vis JUDICIAL PRONOUNCEMENTS ON THE RIGHT TO FREE LEGAL AID FOR UNDER-TRIAL PRISONERS IN INDIA

Abstract

The right to free legal aid for under-trial prisoners in India represents a vital intersection of access to justice, criminal procedure, and human rights jurisprudence. This article undertakes a comparative analysis of the statutory framework and the judicial pronouncements on this right, with specific reference to under-trial prisoners. On the statutory side, key enactments such as the Legal Services Authorities Act, 1987 (LSA Act), the constitutional guarantee under Article 39A of the Constitution of India, and special provisions in the recently enacted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are examined. On the judicial side, seminal judgments such as Hussainara Khatoon v. State of Bihar, Supreme Court Legal Aid Committee v. Union of India, Sheela Barse v. State of Maharashtra and more recent decisions are analysed for how courts have interpreted and operationalised the statutory right. The article finds that while the statutory framework establishes the architecture for free legal aid, judicial pronouncements have progressively expanded its contours, applicability to under-trial prisoners, and enforcement mechanisms. Nevertheless, a gap persists between the legal promise and ground-level implementation, especially for under-trial prisoners trapped in prolonged detention without effective representation. The article concludes with policy recommendations to strengthen both legislative clarity and implementation oversight.