Saturday, October 15, 2016

The Right to Counsel in India

I've made several visits to a police station over the last two years. A few of them were when a person had been issued a notice to appear - either as a potential witness [Section 160 Cr.P.C.] or as a suspect [Section 41-A Cr.P.C.]. These meetings teach you a lot. The last one involved me standing outside the station for five hours while the person was being interrogated by the police. This was legal - after all, one has a rather limited right to counsel in India. I argue that it is urgently necessary to reconsider this fundamental right and expand its scope in line with the developments of the criminal justice system. 

The Fundamental Right under Article 22(1)
Article 22(1) of the Constitution reads "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." There are two important observations that I wish to make about the constitutional right.

The first, is that the right to counsel was an innovation by the Constitution in the scheme of Indian criminal procedure. If we look at Article 20 of the Constitution, and even the remainder of Article 22(1), we find these protections had existing statutory equivalents at the time. Those rights had been elevated to the status of constitutional safeguards. With the right to counsel, there wasn't any such statutory protection. The shared experience of many in the Constituent Assembly led to the insertion of this right. 

The second, is the text and consequent scope of this right. The trigger for the protection is very clearly set at arrest (I will argue that this itself is a problem, but more on that letter). This is where the clarity ends. 'Consult' can mean many things. Does this mean I can have a lawyer present during interrogation?  Or does it mean I can meet a lawyer for one hour once a week while I am lodged in jail during the pendency of my case? 

The Right to Counsel in Statutory Law
I've already mentioned that the right to counsel didn't have any statutory equivalent in 1950. This important right only found a mention in the Criminal Procedure Code 1973 with amendments made in 2010 [this was after the decision in D.K. Basu (AIR 1997 SC 610)]. Section 41-D, so inserted, reads: "When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation."

Depending on your point of view, this right re-confirms or expands the scope of the fundamental right. 'Consulting' now definitely means meeting your lawyer during an interrogation. This right is limited, but again, the boundaries are hazy. Who decides when I can't meet my lawyer? The police? The fairness of that decision would be under obvious question. In fact, this is is what leads to most lawyers remaining outside the police station despite the existence of this right to an arrested persons. Would that decision be amenable to any judicial scrutiny, say, under Section 156(3) Cr.P.C.? I haven't seen any such challenges in court yet.

Cribbed, Cabined and Confined
That, for me, is the current status of the right to counsel in India. There are more exceptions to it than there is substance. It could be said that the system exhibits some innate fear of allowing a suspect to meet a lawyer, that this would allow the suspect to 'wise-up' and thwart investigation. This is bogus. Even today, the law places many restrictions on using the evidence from an accused. Of course there is little that beats a confession, but centuries of criminal jurisprudence have developed the idea that a confession will not come. Police are trained to make a case without relying upon the accused. That is how most investigations and cases proceed. In any event, this supposed 'fear' has other remedies: police can be trained better and given better resources (forensics, for starters). The answer cannot be a denial of basic human rights.

The unclear limits in Section 41-D have rendered it entirely inept, as I've argued above. But this impotence of the right is reflected most severely in how it has been guaranteed to undertrial prisoners under state jail manuals. In Delhi, the Department of Prisons limits the right to meet a lawyer to only once a week for an hour. This standing order was challenged before the Delhi High Court but nothing came of it. These are obvious areas to be addressed. But some fundamental restructuring is also required. Mostly because today an arrest is not the first point of contact between the potential defendant and the police as was the situation around 1950. Policing has changed and so have attitudes towards policing. This social fact has been given legal recognition recently by the Supreme Court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] which prohibits immediate arrests in a vast majority of cases. 

I argue that in light of this decision, it is about time the right to counsel was delinked from the idea of arrest The underlying idea must be salvaged - that the right to counsel was made available from the point one was coerced to be involved with law enforcement. Naturally, this would allow extending the right in cases where suspects and witnesses receive notices to appear before the police.

Post Script: The Delhi Prison Rules 2018 which came into force in 2019 have changed the scope of legal interviews for prisoners. Rule 585 has increased this to allowing "two" interviews a week to every prisoner. Besides this, there is an entire chapter on legal aid related issues.

[This post was updated on November 28, 2019, to add the post-script.]  


  1. The idea posited is praiseworthy. However, don't you think that already infamous and shoddy police investigations would get unduly protracted at the outset with a lawyer playing with words. Police action is triggered either by apprehension or commission of crime. Intervention of lawyers at the outside will complicate the already tardy system of criminal justice administration.

  2. Hi Prashant

    I'll identify your concern as twofold (1) delay in criminal investigation and (2) the apparently shoddy nature of the investigation itself. Both are very valid. But as I argued, I don't think it is a valid trade-off to say that the right to counsel should be limited because of policing problems.

    In any case, I think that the presence of a lawyer won't worsen these problems. Those who can afford to 'lawyer-up' today already do, and go to the police after a thorough briefing. So the lawyer's presence is commonly felt. The involvement of a lawyer may help speed up the process as well - as the police may turn more quickly to securing other material evidence (which they notoriously don't do currently).

    What would your alternative be?