Article 22 of the Constitution of India grants every arrested citizen a fundamental right to be defended by a legal counsel of her choice. It does not give anyone a say in determining who should represent her. In 2023, the National Legal Services Authority (NALSA), recognising the relentless crisis of undertrial prisoners, created a body of legal aid defence counsels (LADC) who would be paid by the state.However, now the advocates association of Punjab and Haryana have decided who should represent the accused. They have demanded that only they should represent prisoners and that the LADC system be revoked. In other words, they have declared that litigants should either pay them or remain undefended, and NALSA has agreed to go along with this.In an August 4 order, NALSA said it would not to renew the contracts of legal aid counsels in Punjab, Haryana and Chandigarh from September onwards, thereby enforcing the advocates’ unconstitutional demand and ending prisoners’ right to equal access to justice.NALSA also decided that LADC contracts in the remaining states and Union Territories will not be renewed upon completion of their existing tenures. As a result, the issue is not limited to Punjab, Haryana and Chandigarh but extends across India.Treating prisoners’ rights as expendable, the NALSA decision rewrites the constitutional right to legal aid under Article 39A. While the rationale of the lawyers is plain and simple – the state-supported LADC threatens their economic interests – this is almost taking the prisoners hostage.This legal extortion is being dressed up in the language of victimhood, even though it is evident that any attempt to bring under control the under-trial crisis affects the professional interests of advocates and, therefore, they would allow it to continue.Also read: India’s Per Capita Expenditure on Free Legal Aid Is Just 75 Paise Per Annum: ReportThe lawyers of Punjab and Haryana say that the panel-advocate system, which also exists within NALSA’s legal aid, should be used instead of the LADC system. The panel-advocate system is where empanelled lawyers handle legal-aid matters while continuing their private practice. The empanelled lawyers are paid an honorarium; they are not salaried like the LADCs.But this disregards the fact that LADC was introduced to address many of the shortcomings of the panel-advocate model through setting up dedicated, salaried defence teams.NALSA’s August 4 order also says that younger advocates (who are empanelled) be asked to represent those who do not have a counsel. This proposal also arose from the lawyers of Punjab and Haryana, and it appears to move the legal aid system back towards the older model.The present arrangement appears to be interim, but we do not know yet for sure. The immediate worry is that experienced LADCs may be discontinued and replaced by ad hoc allocations to other advocates, leaving both LADCs and, more importantly, undertrial prisoners uncertain about continuity and quality of legal representation.The decision leaves the poor and disadvantaged under-trials with no legal shield against illegal detentions. This is an issue that the legal media is unwilling to raise: That the criminal justice system has already worked as a crackdown on the personal freedom of the underprivileged. The pre-trial detentions imposed on them ranges from three months to two years, whether the prosecution demands it or not and regardless of whether the accused will eventually be convicted or not.In the case of political dissenters, the full impact of pre-trial detention is no secret. But here is what is not visible to the public: apart from losing their personal freedom, every year around 18 lakh accused are forced to part with crores of rupees, which they pay into the system in the effort to recover their freedom.Also read: Jails at Breaking Point: With 131% Overcrowding, Concerns Increase About Prisoners’ RightsNALSA itself invested over Rs 900 crore into the effort to defend 1.30 lakh prisoners in the past three years. The gravity of the economic burden on the masses of incarcerated people can only be imagined. Next to health and education, entanglement with the criminal justice system is one of the biggest sources of indebtedness for the poor.The decision to scrap the LADC system now leaves each accused to spend lakhs of rupees to fight their cases. This includes, of course, the burden of greasing every minion of the criminal system, which has become a routine. Think about what it means: the threat to personal liberty of millions of the poor is an established source of regular income for the millions who live off them.If you cannot pay, the process itself penalises you. The legal system then moves absurdly slowly. It considers faster disposal of trials an economic and political loss. It is not in a hurry to prove the criminality of the accused, as she can always be punished without trial – as an under-trial.These conditions make the decision to dismantle the legal aid system a graver risk for those who have been arrested, by inflicting punishment on them without due process being followed. The accused will now suffer more and longer incarceration because some advocates have decided that their life and liberty should be under their control. This is not the justice system the constitution envisions.These developments demonstrate that while the LADC system was serving the interests of under-trial prisoners, dismantling it serves the interests of private advocates. NALSA’s order will only perpetuate the crisis of people being kept behind bars as under-trials. Every day lost behind bars, every groundless refusal of bail, every casual adjournment of court hearings, every delayed decision on bail allows someone to thrive economically. This is how the system sustains itself.Also read: Over 75% of Undertrials in UP from SC, ST, OBC Groups, Centre Tells ParliamentTo judge such a method of functioning as a result of professional inefficiency amounts to committing cognitive dishonesty. The system is designed to thrive on the suffering of the underprivileged. When your loved ones are detained, of course you would pay – anyone would pay – whatever is demanded. And the costs are not just economic. They are emotional, psychological and physical. But who can risk questioning this organised injustice?Dismantling the LADC system actually sustains the careers of advocates, normalises the indifference of courts towards under-trials and prisoners, stretches the duration of detention and punishes people without due process. It leaves prisoners to languish in dungeons not because of their criminality but because the system decides to control their lives.Their tragedy is the result of arbitrary and unnecessary arrests, unethical advocacy, a pliant judiciary and an indifferent society. Each one of these problems is not an isolated fact – there is a pattern. Dismantling legal aid will now reproduce this human tragedy on a bigger scale.This decision demonstrates that the system refuses to learn from the harms that the earlier legal aid model inflicted on prisoners – it guaranteed punishment without trial, treated the lives of common citizens as expendable and sacrificed their freedom at the altar of the private practice of advocates. NALSA cannot go back to such a system.Dismantling the LADC system cannot be understood as an administrative decision about legal aid personnel. The question here is not simply whether lawyers should be paid by the litigants or by the state; it is who bears the brunt of unfreedom. When costs are transferred to the prisoner, legal aid ceases to be a constitutional safeguard. A defence system that is independent, accessible and adequately resourced must exist so that the promise of personal liberty can be real and substantive.The authors work with Access to Justice for Prisoners, NALSAR University of Law, Hyderabad.