The Supreme Court on Wednesday issued notices to the Centre, all states and Union territories on a public interest litigation seeking recognition of a fundamental right to have legal counsel present during interrogation by the police or other investigative agencies.
A bench comprising Chief Justice B.R. Gavai and Justice K. Vinod Chandran was hearing a plea filed by lawyer Shaffi Mather, who has sought to interpret this right as part of the constitutional guarantees under Articles 20(3), 21 and 22 of the Constitution.
At the outset, Justice Chandran asked senior advocate Maneka Guruswamy, appearing for the petitioner, whether the PIL included examples of coercion during interrogation.
“Are there instances of need for counsel in the petition,” Justice Chandran asked.
Guruswamy responded that the plea was filed in public interest to ensure legal safeguards during questioning. She argued that the presence of counsel helps individuals understand whether specific questions are incriminating, thereby preventing coerced or uninformed self-incrimination.
She referred to the “India: Annual Report on Torture 2019” published by the National Campaign Against Torture, which documents widespread custodial torture and impunity, to underline the need for legal representation during questioning.
The petition contends that denial or restriction of legal counsel during interrogation violates fundamental rights, particularly:
- The right against self-incrimination under Article 20(3),
- The right to life and personal liberty under Article 21, and
- The right to consult and be defended by a legal practitioner under Article 22(1).
It challenges current practices under laws like the Prevention of Money Laundering Act (PMLA) and the Narcotic Drugs and Psychotropic Substances (NDPS) Act, which either deny the presence of lawyers during interrogation or allow only “visible but not audible” proximity, meaning lawyers can be present but cannot communicate with their clients during questioning.
The plea urges the Supreme Court to:
- Declare the right to have legal counsel present during interrogation as a non-discretionary and unalienable fundamental right;
- Frame guidelines ensuring access to counsel during questioning, consistent with Articles 20(3), 21, and 22(1);
- Mandate informing every person called for questioning about their right to silence and right to counsel.
The bench has sought responses from the Centre, states and Union territories on the PIL.
