“Litigation Cannot Be Adversarial”: Supreme Court Says DLSAs Must Help Undertrials With Private Lawyers Secure Release After Bail

The Bench of Justice MM Sundresh and Justice Prasanna B Varale passed the order on November 4 in the suo motu proceedings In Re Policy Strategy for Grant of Bail, while hearing an application for clarification and directions and an application for intervention.

The Bench directed the State of Uttar Pradesh to carry out the exercise of securing the release of such prisoners in consultation with the District Legal Services Authorities (DLSAs), and made clear that the directions would cover all 75 districts of the State.

The matter will next be heard on January 20, 2027.

Counsel appearing for the petitioner side told the Court that across 20 districts, 264 undertrial prisoners had been granted bail but could not be released "for want of execution of sureties, and other conditions imposed by the concerned Trial Courts."

Senior Advocate Pradeep Mishra, appearing for the State of Uttar Pradesh, informed the Bench that of these 264 prisoners, "only 158 have been released and an appropriate decision will be taken with respect to 106 prisoners."

The counsel for the National Legal Services Authority (NALSA) explained that periodical reviews were being held every month with the active participation of the DLSAs. According to NALSA, cases not yet taken up would be placed before the meeting due next month, and "That is the reason why there are still 106 under-trial prisoners who are yet to be released."

The petitioner side further pointed out that the available data related only to 20 districts, and that the exercise therefore "has to be undertaken for the remaining 55 districts." The State's counsel responded that "the needful would be done within a reasonable time."

Recording these submissions, the Court directed the State of Uttar Pradesh "to undertake the exercise for the under-trial prisoners who have been granted bail but could not be released for want of compliance of conditions of bail, in consultation with the respective District Legal Service Authorities."

The Bench closed its order by stating, "Needless to state that the aforementioned directions shall apply to all the under-trial prisoners spanning across 75 districts."

The most significant part of the order deals with prisoners who had their own counsel. The Bench made the direction expressly applicable "even to those under-trial prisoners who could not comply with the bail conditions, despite the fact that they have engaged the private lawyers."

The Court said, "There cannot be any differentiation between the under-trial prisoners, who have the assistance of District Legal Services Authority and those who have engaged private counsel."

Explaining why, the Bench observed that both groups stood on the same footing so far as non-compliance with bail conditions was concerned, "The fact remains that both the categories are similar with respect to non-compliance of the bail conditions imposed. Merely because the private lawyers have been engaged, the assistance from the District Legal Services Authority counsel cannot be denied and also the benefit that has been extended to such of persons who have already been rendered assistance by the District Legal Services Authorities. Litigation cannot be adversarial in that sense."

The Court accordingly held that "notwithstanding the presence of counsel appearing for the accused person who have been granted bail, further assistance can be rendered by the District Legal Services Authorities to them."

The Bench placed responsibility for the release of these prisoners squarely on the State government. "In any case, the onus lies on the State to make sure that these persons are released from custody," the order reads.

The Court also addressed the trial courts that had imposed the conditions in the first place. It requested the courts concerned to take up the cases brought to their notice by the respective DLSAs and to "modify the condition(s) suitably, so that the under-trial prisoners can be released accordingly."

With the order, the Court has moved in Uttar Pradesh from data covering 20 districts to a direction that binds the State across all 75.