~By Paras Khetan
The right to counsel of an accused has been constitutionally guaranteed under Article 22 of the Constitution of India. This right is available to the accused during the trial. However, the question arises whether the same is available to the accused at the time of police interrogation. There is ambiguity with regards to the right to counsel during police interrogation due to inconsistent judicial pronouncements. This is also evidenced by the recent interim order in the case of Satyendar Kumar Jain, which has been vociferously criticized here.
The right to counsel during police interrogation is necessary for checking custodial abuses, informing the accused about his rights and the implications of his statements to the police, and providing general emotional support and comfort to the accused. This would also further various fundamental rights of the accused, such as those under Article 20 (self-incrimination), Article 21 (personal liberty), and Article 22 (right to lawyer) of the Constitution of India.
In this piece, I would bring forth the lack of clarity in the existence of a right to counsel during police interrogation by undertaking an analysis of various judicial pronouncements on the same. I would also explore the scope of Section 41D of the Code of Criminal Procedure (‘CrPC’) regarding the same.
Judicial Decisions
The right to a lawyer during police interrogation was advocated for in the strongest terms in the case of Nandini Satpathy v. P.L. Dani. The Court held that the police may permit the advocate of the accused to be present at the time of interrogation. The Court believed that Article 20(3) – right against self-incrimination – and Article 22(1) – right to consult a lawyer – would be furthered if the advocate were allowed to be present during the examination. However, the right is limited to the accused wishing for a lawyer to be present, and the police do not have a duty to provide a lawyer of their own volition. The Court also cautioned that the police need not wait for more than a “reasonable amount of time” (a term which has not been explained by the Court) for the advocate’s arrival. Additionally, the Court further remarked that if the lawyer is not available, then the police must take the accused to a “magistrate, doctor or other willing and responsible non-partisan official” where the accused may unburden himself.
In Selvi v. State of Karnataka, the Court emphasised the need for access to legal advice during interrogation. Indeed, one of the reasons narco-psychiatric tests were held unconstitutional was the inability of the accused to consult a lawyer. However, this right of the accused has been considerably diluted by subsequent judicial pronouncements.
The Court in D.K. Basu v. State of W.B. laid down the following guideline – “[t]he arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation”. This involves a withering down of the absolute right provided in Nandini Satpathy by restricting the right to not extend throughout the interrogation. In Poolpandi v. Supdt., Central Excise, the Court held that the decision in Nandani Satpathy cannot be accepted because it went against earlier decisions in Romesh Chandra Mehta v State of West Bengal and Illias v Collector of Customs, Madras and was clearly distinguishable on facts as well. The Court held that the accused does not have a right to counsel during police interrogation under the Customs Act. It reasoned that a person called for interrogation under the said Act cannot be termed an accused in a criminal case, and therefore, the protection under Article 20(3) would not be triggered. Subsequently, the Court in Directorate of Revenue Intelligence v. Jugal Kishore Samra relied on Poolpandi to hold that Nandini Satpathy has not been followed in subsequent cases and therefore the accused has no right to counsel during police interrogation. However, relying on DK Basu and the particular facts and circumstances of the case, the Court allowed the interrogation within the sight of the lawyer from a distance or beyond a glass partition. Later, the Court in State (NCT of Delhi) v. Navjot Sandhu reaffirmed the position in Nandini Satpathy that an accused in police custody has a right to meet and consult his lawyer. However, it also held that the same does not go as far as to establish access to a lawyer, and the police have no obligation to inform the arrestee of his right to consult a lawyer during interrogation.
The most serious blow to this right comes in the case of Mohd. Ajmal Amir Kasab v. State of Maharashtra. The Court observes that the “core” of the guidelines laid down in Nandini Satpathy has never been followed in any subsequent cases. It further relies on decisions in Poolpandi and Jugal Kishore which expressed doubts over the correctness of the decision in Nandini Satpathy and did not follow the same in the context of the Customs Act and the NDPS Act respectively. The Court then goes on to say that the right to consult a lawyer does not permit the presence of a lawyer during police interrogation. It reasoned that Indian law has sufficient safeguards to protect the accused from forced confessions, and the Court in Nandini Satpathy was wrong to rely on the Miranda decision.
Therefore, what emerges from the above analysis is that courts have been inconsistent in determining whether the accused has a right to consult a lawyer during police interrogation. A general trend of dilution of the right to counsel is seen in the decisions of the Supreme Court. Prof. Aparna and Prof. Mrinal have also criticized the approach of the Supreme Court for moving from a “liberty perspective” to a “public order perspective” which prioritises social control and security over individual liberty.
The Role of Section 41D
The ambiguity surrounding the right to counsel during police interrogation is further compounded due to S.41D of CrPC. S.41D of CrPC, added by way of amendment in 2009, provides that an arrestee “shall be entitled to meet an advocate of his choice during investigation, though not throughout investigation”. This clearly gives a right to counsel during police interrogation to the arrested person. However, it is important to note that there is a distinction between the rights of an accused and the rights of an arrestee. It is possible that the accused may not have been arrested yet and may be interrogated based on a mere summons. The above cases primarily relate to the rights of the accused. However, in Kasab, the Court conflated the two. Even though the issue related to the rights of an arrested person, the Court laid down a general proposition that accused persons (including an arrested person) do not have a right to consult a lawyer. This goes against the mandatory provision of S.41D in so far as it relates to the rights of an arrested person. Interestingly, the Court in Kasab does not even mention S.41D; rather, the Court relies on DK Basu. The DK Basu guideline mentions “the arrestee may be permitted” whereas S.41D mentions the accused “shall be entitled”. Therefore, the reliance on DK Basuas opposed to S.41D by the Court in Kasab might have led them to believe that the right to counsel is not mandatory. This confusion is also visible in the case of Satyendra Kumar Jain where the court relied on the decision in Poolpandi, which related to the rights of merely an accused person, to deny the right to counsel to an arrested person without even considering the role of S.41D.
Therefore, the courts have ignored S.41D and have conflated the rights of the accused with the rights of an arrestee. All of this adds to the uncertainty and ambiguity surrounding the right to counsel during police interrogation.
There is also a lack of clarity regarding the scope of S.41D. An important issue that arises is whether S.41D imposes a duty on the police to inform the accused about their right to counsel during interrogation. In Navjot Sandu, as mentioned earlier, the Court held that no such duty exists. However, that was before the insertion of S.41D. There is a strong case to include such a duty under S.41D as the same is necessary to effectuate the right to counsel, and holding otherwise might render the provision nugatory. This would also be in furtherance of the rationale behind the provision which is to further fundamental rights (under A.20, 21, and 22), check custodial abuses, provide support to the accused, and inform him about his rights and the implications of his statements to the police. However, the Law Commission has expressed doubts about whether the police will follow such a duty without a strict compliance mechanism.
Therefore, there is a need to ensure clarity regarding the role and scope of S.41D for determining the right to counsel during police interrogation.
Conclusion
Over the years, the Supreme Court has consistently diluted the right to counsel of an accused during police interrogation, leading to its final rejection in Kasab. During this, the Court has also ignored S.41D of the CrPC and therefore, the rights of an arrestee to counsel during police interrogation have also been ignored. There is a cloud of ambiguity and uncertainty regarding this right of the accused. There is a need to provide clarity regarding the same. The right to counsel during police interrogation should be provided to the accused from the moment one is coerced by the investigating agency (irrespective of whether an arrest has taken place). Additionally, there should be a mandatory duty imposed on police officers to inform the accused about such a right. This would assist in protecting the rights of the accused.
The author is a third-year B.A. LL.B (Hons.) student at National Law School of India University, Bengaluru.