New Delhi: The Supreme Court of India on Wednesday directed the Centre, all states, and union territories (UTs) to respond to a public interest litigation (PIL) seeking that every person arrested or summoned by investigating agencies be granted access to a lawyer during any stage of enquiry or investigation. The bench of Chief Justice of India Bhushan R Gavai and Justice K Vinod Chandran was hearing the matter.

The PIL, filed by lawyer Shaffi Mather, contends that despite the right to legal counsel being statutorily recognized and repeatedly affirmed by the Supreme Court in various judgments, it is not uniformly enforced by police and other investigating agencies.

Petition Highlights

Senior advocate Menaka Guruswamy, appearing for the petitioner alongside advocate Prateek K Chadha, argued that when individuals are summoned to police stations or other investigating offices, they are often denied timely access to a lawyer, placing them at a significant disadvantage during questioning.

“This petition seeks to enforce and expand the fundamental right to access counsel during all stages of an enquiry or investigation, whether by police, customs, Enforcement Directorate, or other agencies,” Guruswamy said.

The petition cites relevant constitutional provisions:

• Article 20(3) guarantees that no person accused of an offence shall be compelled to be a witness against themselves.
• Article 22(1) ensures the right of every arrested or detained individual to have access to a lawyer of their choice.

Additionally, Section 38 of the Bhartiya Nagarik Suraksha Sanhita (BNSS) 2023 states that a person arrested and interrogated is entitled to meet an advocate during interrogation, though not for the entire duration. The petitioner argues that this leaves the timing and extent of legal access entirely to the discretion of investigating officers, creating potential for abuse and arbitrary denial of rights.

Concerns About Custodial Coercion

Guruswamy highlighted concerns regarding custodial coercion and torture. She cited the India: Annual Report on Torture 2019 by the National Campaign Against Torture, which recorded 125 deaths in custody, including 93 deaths attributed to alleged torture by police.

She emphasized that the Supreme Court’s Nandini Satpathy decision (1978) recognized the necessity of legal counsel during interrogation to protect accused individuals from coercive tactics, and this principle has been reiterated in multiple subsequent judgments.

The petition stresses the need for uniform guidelines across all investigating agencies, including those under special statutes like the Prevention of Money Laundering Act (PMLA), the Narcotic Drugs and Psychotropic Substances Act (NDPS), and the Customs Act, which often involve coercive questioning and heightened risk of violation of constitutional safeguards.

Petition’s Demands

The PIL seeks the following measures to safeguard the rights of individuals during investigation and enquiry:

1. Full and effective presence of lawyers during questioning, detention, and arrest.
2. Structural safeguards, such as:
   • Video-recorded enquiries and interrogations.
   • Statutory notices informing detainees of their rights.
   • Judicial oversight for any exceptions to legal access.

According to the petition, these measures are essential to uphold due process, prevent custodial violence, and ensure equality and justice at the first point of contact with the criminal justice system.

Supreme Court’s Response

The court asked the Centre, states, and UTs to submit their responses to the PIL, highlighting the need to examine current practices and enforcement gaps regarding access to legal counsel. The bench noted that the issue goes beyond statutory provisions and involves the practical application of rights for accused persons during interrogation by multiple agencies.

The PIL has brought renewed attention to the critical importance of access to legal counsel, particularly in high-pressure investigations or cases involving special statutes, where the risk of coercion is significant. By seeking a uniform and enforceable framework, the petition aims to ensure that all accused persons in India can exercise their constitutional right to legal representation, thereby reinforcing the principles of fair trial and justice.

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