Supreme Court Scrutinizes Right to Counsel During Police Interrogation

New Delhi – The Supreme Court of India has initiated a significant judicial review into the scope of an individual's right to legal counsel, issuing a notice on a writ petition that seeks to make the presence of a lawyer a mandatory right throughout interrogation by police or any other investigating agency. This move signals a potential re-evaluation of pre-trial procedures and custodial safeguards across the nation, carrying profound implications for criminal jurisprudence and the protection of fundamental rights.

A bench comprising Chief Justice B.R. Gavai and Justice K. Vinod Chandran issued the notice on November 4, 2025, after hearing a Public Interest Litigation (PIL) filed by advocate Shaffi Mather. The petition challenges the prevailing practice where access to a lawyer during questioning is often discretionary, limited, or completely denied, arguing that this contravenes core constitutional guarantees.

The case, SHAFFI MATHER v. THE UNION OF INDIA (W.P.(Crl.) No. 401/2025), could become a landmark in defining the precise contours of the right to counsel at the crucial, and often vulnerable, stage of investigation.

The Core Contention: Redefining "Access to Counsel"

Appearing for the petitioner, Senior Advocate Maneka Guruswamy articulated the fundamental premise of the plea. She argued that the presence of a lawyer is not merely a procedural formality but a critical safeguard necessary to advise an individual on their rights in real-time. "There is a need under public interest to have a lawyer while being questioned," Guruswamy submitted, "to tell the person whether that question is incriminating or not."

The petition forcefully contends that the current, often "piecemeal" access to legal counsel is a direct violation of several fundamental rights. The plea states, "This pattern of coercive, piecemeal access to counsel not only contravenes the right to counsel under Article 22, and the right against self-incrimination under Article 20(3), but also violates the due-process, fair investigation, and fair-trial guarantees inherent in Articles 21 and 22."

The PIL highlights that this restrictive practice perpetuates an environment ripe for coercion and abuse, thereby "undermining investigative integrity" and increasing the risk of custodial violence. When the bench, particularly Justice Chandran, inquired about specific instances demonstrating the need for counsel, Guruswamy cited the "India: Annual Report on Torture 2019" by the National Campaign Against Torture, which details systemic issues of torture and impunity. This reference appeared to persuade the court to issue the notice, signaling its intent to examine the matter in depth.

Legal Framework Under Scrutiny

At the heart of the legal challenge is the interpretation of Section 41D of the Code of Criminal Procedure (CrPC), which states that an arrested person "shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation." The petition argues that this provision, along with similar limitations in special statutes like the Prevention of Money Laundering Act (PMLA) and the Narcotic Drugs and Psychotropic Substances (NDPS) Act, is constitutionally deficient.

The petitioner seeks a judicial interpretation that reads the right to counsel as an "unalienable" and "non-discretionary" right, applicable from the moment an individual is called for questioning, not just upon formal arrest. The plea specifically targets the common practice of allowing a lawyer to be present within visible range but not within audible distance of the interrogation, arguing this renders the right to counsel effectively meaningless.

The petition asks the Court to: 1. Establish the presence of legal counsel during any questioning by state agencies as an absolute right. 2. Interpret Section 41D of the CrPC, Section 38 of the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), and relevant provisions in special laws (like Section 50 of the PMLA) to include this absolute right. 3. Frame comprehensive guidelines for granting access to counsel in a manner that upholds the fundamental rights under Articles 20(3), 21, and 22(1). 4. Mandate that investigating agencies provide a formal notice of the 'right to silence' and the 'right to counsel' to every individual before questioning commences.

The Constitutional Imperative: Balancing Investigation with Individual Rights

The petition situates its arguments firmly within the 'golden triangle' of Articles 14, 19, and 21 of the Constitution, expanded to include the protections under Articles 20(3) and 22.

• Article 20(3) (Right Against Self-Incrimination): The plea argues that without a lawyer's guidance, an individual may be coerced or tricked into making incriminating statements, rendering this fundamental right illusory. A lawyer's presence is crucial to ensure that any statement given is voluntary.
• Article 21 (Right to Life and Personal Liberty): Interpreted by the Supreme Court to include the right to a fair and just procedure, Article 21 is central to the petition's claims. The plea asserts that an interrogation without legal counsel present is inherently unfair and violates the principles of due process.
• Article 22(1) (Right to Counsel): While this right has traditionally been associated with the post-arrest stage, the petitioner argues for its extension to the pre-arrest interrogation phase, which is often when an individual is most vulnerable and the foundation of the prosecution's case is built.

Potential Impact on Law Enforcement and Legal Practice

Should the Supreme Court rule in favour of the petitioner, the operational landscape for all investigative agencies in India—from the local police to the Enforcement Directorate (ED), Central Bureau of Investigation (CBI), and Narcotics Control Bureau (NCB)—would undergo a seismic shift.

Interrogation protocols would need to be completely overhauled to accommodate the presence of a lawyer throughout the process. This would require extensive training for officers on conducting questioning in a manner that respects this newly defined right.

For the legal community, it would open a new and critical area of practice, focusing on pre-trial representation. Defence lawyers would play a more proactive role from the very inception of an investigation, potentially preventing procedural lapses and rights violations that are often difficult to remedy at the trial stage.

Conversely, law enforcement agencies may argue that the constant presence of a lawyer could impede the free flow of an investigation, potentially allowing suspects to be coached or to obstruct the discovery of crucial information. The Supreme Court will have to perform a delicate balancing act, weighing the state's interest in effective investigation against the individual's sacrosanct constitutional rights.

As the Union of India prepares its response, the legal fraternity will be watching closely. This case is not merely about a procedural tweak; it is about reinforcing the principle that the process of justice must be fair and transparent from the very beginning, ensuring that the power of the state is always subject to the rule of law and constitutional checks.