SC asks centre, states, UTs to respond on petition seeking lawyer access during enquiry, investigation

SC was hearing a PIL claiming that despite the right being statutorily recognised and affirmed by judgments of the top court, it is not uniformly enforced by police and investigating agencies

New Delhi: The Supreme Court on Wednesday sought the response of the centre, states, and union territories on a petition seeking that every person arrested or summoned by investigating agencies be allowed access to a lawyer during any enquiry or investigation.

This petition only seeks to enforce and expand the fundamental right to access to counsel during all stages of an enquiry or investigation whether by police, or by customs, enforcement directorate etc. (Representative photo/ Getty)

A bench of Chief Justice of India (CJI) Bhushan R Gavai and justice K Vinod Chandran was hearing a public interest litigation (PIL) filed by lawyer Shaffi Mather, claiming that despite the right being statutorily recognised and affirmed by judgments of the top court, it is not uniformly enforced by police and investigating agencies.

Senior advocate Menaka Guruswamy, appearing for the petitioner along with advocate Prateek K Chadha, said that once a person is summoned to the police station or the office of the investigating agency, they are denied legal access, which puts them at a great disadvantage during questioning.

“This petition only seeks to enforce and expand the fundamental right to access to counsel during all stages of an enquiry or investigation whether by police, or by customs, enforcement directorate etc,” Guruswamy said.

The petition said, “The access to legal counsel, due to the ambiguity plaguing the instant laws, is therefore determined by the whims of the state authorities or investigating agencies, leading to a prejudiced and discriminatory treatment of individuals in this respect.”

Guruswamy pointed out that even if access to legal counsel is granted, it is entirely dependent upon the investigating officer’s decision to determine during which parts of an interrogation the lawyer may be permitted.

The senior counsel cited a report --- India: Annual Report on Torture 2019 --- published in 2020 by the non-profit organisation National Campaign Against Torture, indicating instances of torture and even death during interrogation. Out of the 125 documented deaths in 2019, the report claimed that 93 persons died during police custody due to alleged torture, while 24 persons died under suspicious circumstances, and the reason was unknown in the remaining cases.

Guruswamy highlighted the Nandini Satpathy decision of 1978, which recognised the necessity of legal counsel during interrogation to counter police coercion, and has been followed in several other decisions by the top court.

The petition further flagged the need to lay guidelines in this regard covering investigating agencies under special statutes such as the Prevention of Money Laundering Act, the Narcotic Drugs and Psychotropic Substances Act, the Customs Act, among others, which perpetuate coercive questioning, thereby violating constitutional safeguards.

Urging for a direction to grant full and effective presence of lawyers during questioning, detention, or arrest, and to institute structural safeguards such as video-recorded enquiry, questioning, interrogations, statutory notices of rights, and judicial oversight of any exceptions, the petition said, “These measures are essential to vindicate India’s constitutional promise of due process, to prevent custodial violence, to ensure equality and justice at the critical first contact with the criminal justice.”