~ This post has been authored by the Editorial Team of The Writ Review.
The right to counsel for an accused is constitutionally guaranteed under Article 22 of the Constitution of India and is firmly established during the trial phase. However, the question arises whether this right extends to police interrogation, a matter complicated by inconsistent judicial pronouncements. The recent interim order in the case of Satyendar Kumar Jain has further brought this issue into the spotlight.
The right to counsel during police interrogation is crucial for several reasons: it helps prevent custodial abuses, informs the accused of their rights and the implications of their statements to the police, and provides emotional support. This right also furthers several fundamental rights of the accused, including protection against self-incrimination under Article 20, personal liberty under Article 21, and the right to a lawyer under Article 22.
Judicial Decisions
The Supreme Court has addressed the right to counsel during police interrogation in several landmark cases, with varying outcomes.
In the case of Nandini Satpathy v. P.L. Dani (1978), the Supreme Court held that the police may allow the advocate of the accused to be present during interrogation. The Court emphasized that the presence of a lawyer would further the rights under Article 20(3) (protection against self-incrimination) and Article 22(1) (right to consult a lawyer). However, the police are not required to provide a lawyer, and they need not wait indefinitely for the lawyer’s arrival. If the lawyer is unavailable, the Court suggested taking the accused to a magistrate, doctor, or other responsible official.
In Selvi v. State of Karnataka (2010), the Court highlighted the necessity of legal advice during interrogation, noting that the inability to consult a lawyer was a reason narco-analysis and similar tests were declared unconstitutional. However, the strength of this right has been significantly weakened by subsequent rulings. In D.K. Basu v. State of W.B. (1997), the Court stipulated that an arrestee may be permitted to meet a lawyer during interrogation, but not throughout. This ruling diluted the absolute right suggested in Nandini Satpathy by limiting the lawyer’s presence.
In Poolpandi v. Supdt., Central Excise (1992), the Court rejected the stance taken in Nandini Satpathy, asserting that it contradicted earlier decisions such as Romesh Chandra Mehta v. State of West Bengal and Illias v. Collector of Customs, Madras. The Court held that there is no right to counsel during police interrogation under the Customs Act, reasoning that a person called for interrogation under this Act cannot be termed an accused in a criminal case, thus not triggering Article 20(3) protections.
The Directorate of Revenue Intelligence v. Jugal Kishore Samra (2011) decision relied on Poolpandi to conclude that Nandini Satpathy has not been followed in subsequent cases. Therefore, the Court ruled that the accused does not have a right to counsel during police interrogation. However, based on DK Basu and specific case facts, the Court allowed interrogation within sight of the lawyer from a distance or behind a glass partition.
In State (NCT of Delhi) v. Navjot Sandhu (2005), the Court reaffirmed that an accused in police custody has the right to meet and consult a lawyer. However, this did not extend to a right to have the lawyer present during interrogation. The police were not obliged to inform the arrestee of this right.
The most significant blow to this right came in Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012). The Court observed that the core guidelines laid down in Nandini Satpathy had not been followed in subsequent cases. It relied on Poolpandi and Jugal Kishore to state that the right to consult a lawyer does not include the right to have the lawyer present during interrogation. The Court reasoned that Indian law provides sufficient safeguards against forced confessions, and the reliance on the Miranda ruling in Nandini Satpathy was misplaced.
The Role of Section 41D
Section 41D of the Code of Criminal Procedure (CrPC), added by a 2009 amendment, provides that an arrestee “shall be entitled to meet an advocate of his choice during investigation, though not throughout investigation.” This provision clearly grants the right to counsel during police interrogation for an arrestee. However, a distinction exists between the rights of an accused and those of an arrestee. An accused may not have been arrested yet and might be interrogated based on a summons. The Kasab ruling conflated these two situations, leading to confusion.
There is also ambiguity regarding whether Section 41D imposes a duty on the police to inform the accused of their right to counsel. While the Court in Navjot Sandhu held that no such duty exists, this ruling was before the enactment of Section 41D. A strong case can be made for including such a duty under Section 41D to ensure the right to counsel is meaningful. This would align with the provision’s rationale to further fundamental rights, prevent custodial abuses, and support the accused.
Conclusion
Over the years, the Supreme Court has consistently diluted the right to counsel for an accused during police interrogation, culminating in its rejection in Kasab. The Court has also overlooked Section 41D, ignoring the rights of an arrestee to counsel during interrogation. There is a pressing need for clarity on this issue. The right to counsel during police interrogation should be recognized from the moment an individual is coerced by the investigating agency, regardless of whether an arrest has occurred. Additionally, there should be a mandatory duty on police officers to inform the accused of this right to protect their fundamental rights. Ensuring clarity and consistency in the right to counsel during police interrogation is essential for safeguarding the accused’s constitutional rights and preventing abuses within the criminal justice system. This requires a commitment to upholding the principles enshrined in the Constitution and the CrPC, providing the necessary protections to those accused or arrested.