Supreme Court Seeks Centre’s Reply on Plea for Right to Lawyer During Interrogation
The Supreme Court on Wednesday sought a response from the Union government on a Public Interest Litigation (PIL) that seeks recognition of a citizen’s right to have a lawyer present during police interrogations. The plea, filed by practising lawyers, argues that the absence of legal counsel during questioning violates fundamental constitutional protections against coercion and self-incrimination.
A Bench comprising Chief Justice of India BR Gavai and Justice K Vinod Chandran issued notice in the case, Shaffi Mather vs. Union of India & Ors., and asked the government to reply. Senior Advocate Menaka Guruswamy, appearing for the petitioners, emphasized that the demand was not for new privileges but for enforcement of constitutional safeguards that already exist under Articles 20(3), 21, and 22(1).
“If a person accused or even a witness is called for custodial investigation, there is no ability to take a lawyer along. We are only seeking the presence of counsel to prevent self-incrimination and to ensure implementation of constitutional rights,” Guruswamy argued. She said the petition was backed by evidence, including National Human Rights Commission (NHRC) reports documenting cases of forced confessions and custodial torture.
The petition challenges what it calls a “piecemeal and discretionary” approach to allowing lawyers during interrogations. It points out that under Section 41D of the Code of Criminal Procedure, 1973, and its corresponding Section 38 in the new Bharatiya Nagarik Suraksha Sanhita, 2023, an arrested person may “meet” an advocate during interrogation, but not continuously. In practice, lawyers are often allowed within sight but out of hearing range—making their presence “ornamental,” the plea notes.
The petition also highlights how certain special laws, such as the Prevention of Money Laundering Act (PMLA) and the Narcotic Drugs and Psychotropic Substances (NDPS) Act, offer even fewer safeguards, while permitting statements made to investigating agencies to be used as evidence. This, the petitioners argue, increases the risk of coercion and abuse.
Citing the Constituent Assembly Debates, the plea recalls that Dr. B.R. Ambedkar had supported expanding Article 22 to ensure the right to legal defence at every stage, including enquiry and investigation. The petition further draws on international precedents such as Miranda v. Arizona in the United States and Salduz v. Turkey before the European Court of Human Rights, both of which affirmed that the right to counsel during questioning is central to fair trial guarantees.
The petitioners also referred to the Law Commission of India’s 152nd Report on Custodial Crimes, which underscored the need for legal representation during interrogation to prevent torture and abuse.
The PIL seeks a declaration from the Supreme Court that access to a lawyer from the very start of questioning should be treated as a constitutional right, not a discretionary privilege. It also asks for guidelines mandating video-recorded interrogations, statutory notices of rights, and judicial oversight in case any exception to these protections is made.
Along with Guruswamy, the petitioners were represented by advocates Shaswati Parhi, Bhumika Yadav, Kashish Jain, Sreekar Aechuri, Aniket Chauhaan, Surbhi Soni, and Mihira Sood. The case will now proceed after the Union government files its reply.
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