New Delhi: In a significant development for legal rights in India, the Supreme Court has formally requested the central government, along with all state and union territory administrations, to provide their responses concerning a crucial petition. This petition advocates for the fundamental right of every individual, whether arrested or summoned by any investigating agency, to have access to legal counsel during all stages of an enquiry or investigation.
A bench presided over by Chief Justice of India (CJI) Bhushan R Gavai and Justice K Vinod Chandran heard a public interest litigation (PIL) filed by advocate Shaffi Mather. The PIL highlights a persistent issue: despite the right to legal counsel being statutorily recognized and repeatedly affirmed by Supreme Court judgments, it is not consistently applied by police and other investigating bodies across the country.
Senior advocate Menaka Guruswamy, representing the petitioner, emphasized the critical disadvantage individuals face when denied legal access during questioning. She stated, “This petition only seeks to enforce and expand the fundamental right to access to counsel during all stages of an enquiry or investigation whether by police, or by customs, enforcement directorate etc.” Guruswamy further stressed the importance of a lawyer’s presence to guide individuals on avoiding self-incriminating statements.
The petition draws upon constitutional provisions, including Article 20(3) which guarantees protection against self-incrimination, and Article 22(1), which upholds the right to legal assistance for every arrested or detained person. It also references Section 38 of the Bhartiya Nagarik Suraksha Sanhita (BNSS) 2023, which, while allowing for legal consultation during interrogation, restricts it to specific moments rather than throughout the entire process.
The plea argues that the current ambiguity in laws leaves access to legal counsel to the discretion of state authorities or investigating agencies, leading to potential bias and discrimination. Guruswamy cited a concerning report, “India: Annual Report on Torture 2019,” which documented instances of custodial torture and deaths during interrogations, underscoring the need for stronger safeguards.
Referencing the landmark Nandini Satpathy case of 1978, which recognized the necessity of legal counsel to mitigate police coercion, the petition calls for clear guidelines for all investigating agencies, including those operating under special statutes like the Prevention of Money Laundering Act and the Narcotic Drugs and Psychotropic Substances Act. These measures, the petition argues, are vital to uphold due process, prevent custodial violence, and ensure justice at the crucial initial stage of interaction with the criminal justice system.