Can police interrogate accused without presence of a lawyer? Supreme Court to consider

The Supreme Court on Wednesday sought the Union government's response to a Public Interest Litigation (PIL) that has sought the recognition of a right to have a lawyer present when an individual is being interrogated by the police [Shaffi Mather vs. Union of India & Ors.].

A Bench of Chief Justice of India BR Gavai and Justice K Vinod Chandran issued notice in the plea, which seeks the recognition of such a right to have legal counsel present during custodial interrogation as well as in pre-custodial interrogation.

Senior Advocate Menaka Guruswamy, appearing for the petitioner, said that the practice of disallowing counsel during interrogation has created an atmosphere of coercion and violated the constitutional right against self-incrimination.

Explaining the relief sought in the PIL, she said the demand was not for special treatment but for the implementation of an existing constitutional safeguard.

“If a person accused or even a witness is called for custodial investigation there is no ability to take a lawyer with him or her. I am only asking for the presence of counsel to prevent self incrimination. I am only asking for an implementation of the constitutional provision,” Guruswamy argued.

She added that the petition has been filed by practising lawyers who had annexed reports documenting incidents of compelled testimony, including findings by the National Human Rights Commission (NHRC).

“This is a PIL by practising lawyers. We have annexed reports which speak to compelling testimony. We are just seeking implementation of Article 20(3). In 2019 the NHRC saw several cases where torture was used,” Guruswamy submitted.

The PIL challenges what it terms a piecemeal and discretionary approach to allowing lawyers during interrogations. It says this undermines Articles 20(3) (right against self-incrimination), 21 (protection of life and liberty) and 22(1) (right to consult and be defended by a legal practitioner of one’s choice) of the Constitution.

The petition notes that under Section 41D of the Code of Criminal Procedure, 1973, and its equivalent Section 38 in the new Bharatiya Nagarik Suraksha Sanhita, 2023, a person under arrest may “meet” an advocate during interrogation, but not throughout. In practice, this has meant that lawyers are sometimes placed within sight but out of hearing range, reducing their presence to an "ornamental" one.

It further argues that special laws such as the Prevention of Money Laundering Act (PMLA) and the Narcotic Drugs and Psychotropic Substances (NDPS) Act allow even fewer protections. Further, statements made to agencies under these statutes are admissible in evidence, creating a heightened risk of coercion.

The petition also refers to Constituent Assembly Debates, pointing out that Dr. BR Ambedkar had explicitly accepted amendments expanding Article 22 to guarantee not just consultation, but defence at all stages of criminal proceedings, including enquiries and investigations.

The petitioners also highlighted international jurisprudence. They cited the US Supreme Court’s landmark Miranda v. Arizona ruling, which required suspects to be informed of their right to silence and counsel before questioning, and the European Court of Human Rights’ judgment in Salduz v. Turkey, which held that denying counsel from the first police interview undermines fair trial rights.

Reports of the Law Commission of India, including the 152nd Report on Custodial Crimes, were also referred to contend that the need for counsel during interrogation is important to prevent torture and abuse.

The plea seeks a declaration that access to legal counsel from the stage of questioning must be treated as a non-discretionary constitutional right.

It also asks for guidelines requiring video-recorded interrogations, statutory notices of rights, and judicial oversight if any exceptions are to be made from such requirements.

The petitioners were represented by Guruswamy along with advocates Shaswati Parhi, Bhumika Yadav, Kashish Jain, Sreekar Aechuri, Aniket Chauhaan, Surbhi Soni, and Mihira Sood.

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