SC hears petition on lawyer access during probe

The Supreme Court seeks responses on a petition for mandatory lawyer access during interrogations, citing concerns over torture and legal rights.

The Supreme Court on Wednesday sought response of Centre, states and union territories on a petition requiring every person arrested or summoned by investigating agencies to have access to a lawyer during any enquiry or investigation.

SC hears petition on lawyer access during probe

The court passed the order while hearing a public interest litigation (PIL) filed by a lawyer Shaffi Mather who claimed that despite this right having been statutorily recognised and attested by judgments of the top court, it is arbitrarily enforced by police and investigating agencies.

A bench of Chief Justice of India (CJI) Bhushan R Gavai and justice K Vinod Chandran issued notice on Mather’s petition after it was shown data indicating repeated instances of torture during interrogation.

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

Guruswamy said, “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.).” She said that the presence of a lawyer becomes essential to suggest what not to say that can be self-incriminating. Article 20(3) of the Constitution guarantees that no person accused of any offence shall be compelled to be a witness against himself.

This guarantee is further strengthened by Article 22(1) of the Constitution which recognises the right of every arrested or detained person to be provided assistance of a lawyer of his choice.

In recognition of this right, section 38 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) states that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

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 a legal counsel is granted, it is entirely discretionary and the investigating officer can determine during which parts of an interrogation the lawyer may be permitted.

The court wanted specifics. “Have you referred to any instances of any violation? When you file a petition you must give some instances,” it asked the lawyer. She replied that the matter is being pursued in public interest. Mather stated in the petition that being a lawyer, he has personally witnessed the high-handedness of investigating agencies when dealing with a person summoned for interrogation.

The senior counsel cited a report titled India: Annual Report on Torture 2019 published in 2020 by a non-profit organisation National Campaign Against Torture indicating instances of torture, 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 while the reason was unknown in remaining cases.

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

The petition underlined the right to due process and fair investigation, underlying the right to life and liberty -- a fundamental right under Article 21. It further flagged the need to lay guidelines in this regard covering investigating agencies under special statutes such as the Prevention of Money Laundering Act, Narcotic Drugs and Psychotropic Substances Act, Customs Act, which perpetuate coercive questioning, thereby violating constitutional safeguards.

The petition prayed for a direction requiring all probe agencies to grant full and effective presence of lawyer 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.

“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,” it added.