Paper Update: Confronting the Violence Within

At the start of the month, a bench of the Supreme Court dismissed a plea for anticipatory bail filed by a person accused of corruption [Devinder Kumar Bansal v. State of Punjab (2025 INSC 320)]. The person in question was accused of asking for bribes to do audit work, and now sought relief from court. For the uninitiated, 'anticipatory bail' is a remedy where a person goes to court claiming he entertains a reasonable apprehension of arrest in connection with a case, and if the court agrees, then it can pass orders directing that in the event of his arrest the police should release him on bail. 

Even a mildly critical reading reveals the problem. If all we need is reasonable apprehension that there may be an arrest, where does that leave the police's power of arrest and the consequential 'benefits' that arrests and custodial questioning are seen to bring to the pursuit of justice? It can bring it to an absolute standstill. Which is why no court since the introduction of anticipatory bail has read the provision strictly, and the law since 1973 is a study in seesawing judicial opinions on how to exercise this great discretionary power that the criminal procedure code had conferred upon judges. 

Devinder Kumar Bansal falls in the bucket of opinion which warrants extreme circumspection in the grant of anticipatory bail. It notes that the relief "can be granted only in exceptional circumstances where the court is prime facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous." Note that none of this is statutory criteria by the way — something made even more interesting by the fact that in Pakistan, law specifically made testing the falsity of allegations something a court must test while deciding anticipatory bail pleas. 

What makes Devinder Kumar Bansal even more interesting, and allows me to use it as a hook to shamelessly plug a small essay that has come in a volume titled Police Violence in India, is a one-line observation that it made in passing, stating that "if liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. [Emphasis supplied]" No matter the precepts that we should not turn persons into tools for achieving some unknown larger aims — such as a corruption free society — the observation is deeply revealing of the consistent tendency of courts to emphasise upon custody as a means to secure justice. Especially during investigations. 

In an essay titled 'Confronting the Violence Within', I've taken up this tendency of courts to make interpretive choices that privilege custodial interrogation and questioning in criminal cases, which only entrenches the importance of the custodial setting within the law. And courts conveniently want to only focus our attention on the good parts — custodial interrogation is more 'elicitation oriented' as they say — while turning a blind eye to what makes the custodial setting so unique for the investigator — its inherently violent nature. The paper looks at this tendency through two specific areas — law on the right against compelled self-incrimination, and law on anticipatory bail. While Devinder Kumar Bansal has been published after the paper and is relevant to its arguments from an anticipatory bail perspective, even for the law on self-incrimination there have been interesting developments, as the Supreme Court in granting some reliefs to Ranveer Allahabadia specifically directed him to be questioned without his lawyer present. The direction is not unique and in line with previous decisions by the Supreme Court which have consistently sought to remove any intermediary from the custodial setting to ensure its 'uniqueness' — again, without ever squaring up to face the violence which is what makes the custodial setting unique.

If the courts themselves places such a premium on the need for custodial interrogation, how can we expect custodial violence which is an inherently inseparable part of the process, to vanish? 

If liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. Where overwhelming considerations in the nature aforesaid require denial of anticipatory bail, it has to be denied. It is altogether a different thing to say that once the investigation is over and charge-sheet is filed, the court may consider to grant regular bail to a public servant - accused of indulging in corruption

Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner accused for grant of anticipatory bail and there is no frivolity in the prosecution.

 

Guest Post: Section 160, Arrest, and the Calcutta High Court Order in Sutapa Adhikari

(This is guest post by Archit Sinha)

The Calcutta High Court, on June 8, 2023, restrained the state police from issuing notices to the accused in connection with Contai Police Station Case No. 46 of 2022, dated 31.01.2022. The order was passed in the case of Sutapa Adhikari and Ors. v. The State of West Bengal & Anr. The impugned notices were issued under section 160 of the Code of Criminal Procedure, 1973 (“The Code”).

The High Court went on to quash these. In an unprecedented move, it went on to add two incongruous conditions for subsequent notices and arrests. It provided that the notices under 160 may be issued but if actual presence is required, a 72-hour notice was a must. Secondly, it provided that if such persons were to be investigated, they will receive a show cause notice and will not be arrested for 10 days. Furthermore, it frowned on the practice of issuing 160 notices followed by arrests and considered it to be a misuse of the section. It held that “the investigation agency cannot use section 160 of the Cr.P.C as an oppressive measure against anyone.”

This order overlooks a Supreme Court judgement on the scope of sections 160, 161, and 162:  Nandini Satpathy v. Dani (P.L.) And Anr. This post aims to highlight the holding from Nandini Satpathy on Sections 160-162 of the Code and point out that the Calcutta High Court order is per incuriam to the extent that an accused may be issued a notice under Sections 160, 161. And any arrests which may follow, if compliant with Sections 41 and 46 of The Code, are legal.

Scope of Sections 160, 161, and 162: Nandini Satpathy & the Accused/Witness

In Nandini Satpathy, the Supreme Court delineated the scope of Sections 160 and 161 of the Code. The question framed by the Court was the following:

“[W]hether the police have power under Sections 160 and 161 of the Cr. P.C. to question a person who, then was or, in the future may incarnate as, an accused person”

The Court answered in the affirmative while citing a Privy Council decision in Pakala Narayana Swami v. Emperor. The reasoning behind the order was the purported legislative intent behind the sections read with a plain interpretation of the words. “Free disclosure of words” and “protect persons from making such disclosures” were notable in the Privy Council decision in construing Sections 160 and 161. It held that the scope of 161 was broad enough to be issued to an accused.

In Mahabir Mandal v. State of Bihar, the Supreme Court affirmed that “any person” includes an accused under Section 160 of the Code. By necessary implication, it held, that an accused will be “acquainted with the facts” of the crime. Such understanding may or may not come out to be true but it doesn’t vitiate the application of Sections 160-161. Regarding the marginal note of Section 160 to the extent that it mentions “witness”, it was said that “the marginal note [merely] clears ambiguity but does not control meaning.”

As mentioned, in Pakala Narayana Swami, such an interpretation of 160-161 is backed by the purported legislative intent gathered from a plain reading of the sections. These sections are intended to serve as a guarantee for free disclosure of information and to protect the person making such disclosure from the supposed unreliability of such testimony. This protection is provided for in the form of a bar on its use as evidence in trial as given in Section 162 of the Code. This implies 2 things – (a) and accused may be “a witness” and “acquainted with the facts of the case”, and (b) such statements by virtue of 162 cannot be the basis of conviction of the person making them. Though arrest is covered by neither of the 2 propositions, there is no express or implied bar on it either. The decision to arrest is a prerogative of the investigating officer, who, given the circumstances, is in the best position to make this decision. There obviously are possibilities of misuse but this does not mean taking this power away from the IO.

The effect of calling an accused under 160 can lead to a legal arrest in law. This does not mean that such an exercise is an abuse of process. In the present case, the petitioners had argued that such notices were meant to ensure the presence of the concerned persons to take them into custody and deny them the opportunity to apply for anticipatory bail under Section 438 of the Code. The High Court agreed with the petitioners and set aside these notices and laid guidelines for subsequent notices to the same persons. It also noted that the practice of calling someone for arrest through a 160 notice “cannot be encouraged.”

On closer scrutiny, the argument of notices undermining the right to seek anticipatory bail holds little water, since it has long been held that the test for anticipatory bail is whether a genuine apprehension of arrest exists, and this may exist even before registration of an FIR in some cases. Thus, it is argued that in Sutapa Adhikari there was no denial of anticipatory bail rights because, as argued by petitioners, they feared arrests because of the prior conduct of the police. In fact, paragraph four of the order notes that the “apprehension of arrest” on the part of the petitioners was well-founded due to the prior conduct of the agency. Therefore, nothing prevented petitioners from availing anticipatory bail. In fact, there is nothing on record to show that they even applied for it despite this apprehension. This signals a voluntary waiver of that right and not abuse of process.

Scope & Use of 160: Where Sutapa Adhikari Gets it Wrong

It was submitted by the petitioners that in recent cases, namely CRR 3047 of 2022 and GR Case No. 1357 of 2022 arising out of Contai police station Case No. 265 of 2022, the investigating agency has been using this section to arrest innocent persons. In the present case, the petitioners had alleged that the family members and acquaintances of the accused in Case No. 46 of 2022 – Suvendu Adhikari, were being harassed via notices under section 160 of The Code as arrests were happening post appearances by such people. 

The High Court set aside these notices while observing that such practice of calling someone not named in the FIR by a notice under section 160 of The Code and the IO, in the name of interrogation, implicating them as an accused and arresting them directly, amounts to abuse of Section 160. It is argued that these observations by the High Court are erroneous in law. 

Looking at the text of Section 160 in line with Nandini Satpathy, it becomes clear that an accused can be called under 160 to record a statement under 161 of The Code. But by virtue of 162 and Article 20(3), read with Aghnoo Nagesia all such statements cannot be used as evidence. As per section 25 of the Indian Evidence Act, confessional statements to the police are not admissible in a trial as evidence. Thus, there are inbuilt safeguards for such arrests by having a limited evidentiary value of such statements. Such statements cannot be used as evidence, they may or may not be the basis of an arrest because there is no express bar on such an arrest. This does not violate any procedural rights of the accused. Moreover, the domain of investigation is the sole prerogative of the executive and cannot be interfered with as a routine practice by the Courts. So, the order of the Court which not only discourages Section 160 notices on erroneous premises but also invents the two preconditions before initiation of investigation and arrest, is not only bad in law but also lacks legal precedent.

So, then, what remains to be analysed is the larger concern underlying this High Court order. This concern is of wide discretionary powers of arrest vested with the investigating agencies. On the ground, there may be the potential to misuse Section 160 notices. For example, in the very first issuance of a notice to a ‘witness’, there is little apprehension of an arrest. So, it is unlikely that such a ‘witness’ to whom such notice is issued, will apply for anticipatory bail. This is a valid concern and can raise questions about a fair procedure. As a general principle, allowing Section 160 notices to accused persons can certainly lead to an arrest, and this power can be misused can be misused. But does it mean that the scope of Section 160 needs to be reconsidered or that Nandini Satpathy needs to be overturned?

Per Nandini Satpathy, Pakala Narayana Swami, and Mahabir Mandal, it is known that the purpose behind 160, 161 is two-fold – (a) free disclosure of information, and (b) protection of the persons making such disclosures. In line with these purposes, there is perhaps a need to look at Nandini Satpathy on the presence of a lawyer during the questioning of a witness/accused, i.e., at the pre-trial stages. The Supreme Court had held that the right to consult a lawyer includes the right to have the lawyer present during interrogation. But this does not entail that “the police must secure the services of a lawyer.” 

In Nandini Satapathy, the court noted that “a lawyer’s presence is a constitutional claim in our country, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence. Article 20(3) and Article 22(1) may in a way be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined.” However, subsequent judgments, notably, Md. Ajmal Md. Amir Kasab v State of Maharashtra, Shri D.K. Basu, Ashok K. Johri v State Of West Bengal, and State Of U.P, Poolpandi Etc. Etc vs Superintendent, Central Excise, and State (N.C.T. Of Delhi) v Navjot Sandhu, it was held that the lawyer can be present during interrogation, but they will need to maintain a certain distance or a partition of glass will be there while interrogation as such is going on. Thus, the Indian position on the presence of a lawyer is that the lawyer should be allowed to be present during interrogation, but at a visual and not aural distance. Since Nandini Satapathy, subsequent case laws have curtailed the right of the accused to have their lawyer present and involved during the interrogation and other pretrial stages. Thus, there is a need to revisit the question and scope of the presence of a lawyer during the pretrial stages. Such may not be the panacea for allaying all concerns regarding the wide arrest powers of the police but it is a starting point. It can serve, at least, as a check on the procedure during an arrest or interrogation of a witness/accused under 160 while also reinforcing the protection against self-incrimination.

The Sutapa Adhikari order, speaks of violation of “natural justice” in arrests following a notice. While the presence of a lawyer in pretrial stages may or may not affirm “natural justice”, it may very well provide for some checks during arrests, and the procedure of interrogation and is also relevant for the right against self-incrimination. From, existing case law, it is clear that arresting via notices under Section 160 is a valid legal option. Undoubtedly, there is potential for misuse but there exist ways in law to check such misuse. But, what is clearly not a valid way to check such misuse is the invention of a new procedure, as the Court did in the current order.

Conclusion

The Calcutta High Court order on Section 160 of the Code is flawed and may prompt police to complain that it has made it more difficult for to investigate crime. The order also sets a dangerous precedent by inventing new procedures that are not supported by the law. It is per incuriam Nandini Satpathy, which is clear on the scope of “any person” under 160-161. The order also wrongly assumes that the accused has no right to avail anticipatory bail under section 438 of the Code. Concerns of wide discretionary powers of the police/investigating agency to arrest persons may perhaps be checked or at least held up to scrutiny by the involvement of a lawyer at pretrial stages. This would provide an additional safeguard against the misuse of Section 160 notices and would help to ensure that the accused’s statement is accurate and reliable. Clearly, it would not serve as a panacea for this issue of powers of arrest, but it is a starting point.

Why the Delhi High Court is Wrong to Deny Satyendar Jain his Right to Counsel

It appears that by an interim order passed on 03.06.2022, the Delhi High Court has stayed operation of a portion of an order passed by the Trial Court whereby it had directed that Satyendar Kumar Jain, who has been arrested by officers of the Enforcement Directorate and remanded to their custody for ten days, was entitled to have counsel present within visual range while he was being interrogated. The reasoning adopted by the High Court to grant interim relief is straightforward: the directions in the Trial Court's order are seemingly contrary to judgments of the Supreme Court and the Delhi High Court, and so it was appropriate to stay their operation. 

The High Court was swayed by the decision of the Supreme Court in Poolpandi & Ors. v. Superintendent, Central Excise & Ors. [(1992) 3 SCC 259 ("Poolpandi")] and an order of a Division Bench of the Delhi High Court in Sandeep Jain v. Addl. Director, DRI [Rev. Petition 387 of 2019 (Order dated 10.12.2019) ("Sandeep Jain")], pressed into service by the Enforcement Directorate. All the Supreme Court judgments relied upon by the Respondent Satyendar Jain were distinguished simply because they, apparently, do not consider Poolpandi; the Bombay High Court judgment cited by his counsel was not relied upon due to the existence of Sandeep Jain which according to the High Court held a contrary view.

This admirably straightforward argument, which the High Court has accepted, has one small problem — it is wrong in law. A careful reading of the two main planks of the Enforcement Directorate's contentions, viz. the judgments in Poolpandi and Sandeep Jain, were entirely inapplicable to the facts before the High Court in this case of Satyendar Jain. Importing Poolpandi and Sandeep Jain to this factual matrix is worse than comparing apples to oranges.

In Poolpandi the pure issue presented to the Supreme Court was this: do the persons summoned for being questioned under the Customs Act 1962 or the erstwhile Foreign Exchange Regulation Act 1947 have a right to presence of counsel while they are questioned. It was contended that the source for this right was Article 20(3) which protected accused persons against compelled self-incrimination, and alternatively in Article 21 as the questioning by agencies was necessarily coercive. The Supreme Court disagreed, primarily on that (incorrect) technical objection that persons being questioned under Customs Act etc. were not 'accused' thereby failing to trigger the Article 20(3) guarantee. As for Article 21, the Court refused to accept a presumption that questioning by agencies was necessarily coercive.

In Sandeep Jain, a review petition was filed challenging the dismissal of a writ petition by a single judge on entirely new grounds. This was, patently, outside the scope of review jurisdiction of the High Court, and the Division Bench rightly observed that the petition deserved an outright dismissal. In light of this, whatever followed was obiter dicta, and that is what has been treated as binding by a Single Judge in Satyendar Jain's case. Be that as it may, what were the facts in Sandeep Jain? Again, it did not concern an arrested person; it involved a person who had avoided summons under Section 50 of the Prevention of Money Laundering Act, but now sought presence of counsel, within visual range, during his questioning. The Court declined to grant this indulgence, citing that no allegation of any threat existed justifying presence of counsel. The contrast with a case in which the person is arrested and remanded to ten days custody of the law enforcement agency could not be starker.

Critically, the issues before the Supreme Court in Poolpandi and the High Court in Sandeep Jain did not extend to considering whether persons who have been arrested and are undergoing custodial detention are also without any right to counsel during questioning. The scenario was purely about a set of people who had only been summoned, which is why none of the petitioners resorted to Article 22(1) of the Constitution which, plainly, guarantees to all persons who have been arrested the right to be defended by counsel of their choice. Since 2008, with the enactment of Section 41-D of the Criminal Procedure Code 1973, this aspect of Article 22 rights have been given clear and unambiguous statutory footing. Nothing in the Prevention of Money Laundering Act 2002 prevents the application of Section 41-D, and in any event, nothing in a statute can ever override the constitutional mandate of Article 22. 

The position of a person at liberty cannot be compared with a person under arrest. In doing so, and by ignoring the letter and spirit of Article 22(1), the High Court has unfortunately erred and has potentially set a rather dangerous precedent, perilously tilting an already skewed balance between rights of arrested persons and the powers of investigators even more in favour of the latter. There is more which can be argued to contest the legal soundness of the view taken by the High Court here, but it warrants a second look on this primary ground itself.  

Can Constitutional Courts Really Not Do Much About Police Brutality?

India's constitutional courts have won deserving acclaim for intervening to save forests, put curbs on pollution, fearlessly address corruption in government, usher in prison reforms, drive governments to pass anti-lynching laws, and strike down patently unconstitutional laws and practices to enable the expression of individual freedom. So to read a news article reporting that a bench of the Indian Supreme Court observed that "courts can't do much" in response to a request that it take notice of the widespread police brutality in Delhi this past weekend came as a rude shock. 

The gamut of examples that I began with can be multiplied almost endlessly and, the longer that list grows the more inane the ultimate relief becomes. What must be flagged, though, is that a number of remarkable interventions also include efforts by the same Supreme Court to help usher in police reforms to curtail police brutality, leading a foreign scholar to comment that the Supreme Court has been the only agent of change in this arena among all branches of State. This glowing praise came while referring to landmark decisions of the Supreme Court in Joginder Kumar and D.K. Basu, which took steps to curtail the vast discretion that police officers have on using their coercive powers. If we shift the focus to High Courts, we find that the Delhi High Court has been building on these foundations through orders such as those passed in Amandeep Johar and Court on its Own Motion, which prescribe detailed guidelines that police must comply with before effecting arrests. 

So, let's be very clear: Indian constitutional courts can do a lot about police brutality and have already been doing a fair bit, when they choose to. In the multiple cases mentioned above, the judiciary chose to do something. Does that mean that the orders in Joginder Kumar or D.K. Basu are unwaveringly obeyed by the police forces? Of course not. But the very pronouncement of such an order empowers a citizen, because it confers upon her the right to invoke an authority against state oppression that she did not have before that moment. A Court order is, therefore, as much an act of faith as it is an act of governance. Today, when petitioners knocked on the two Courts' doors seeking that they intervene after a day of maddening violence, the Justices spoke and expressed sympathy, but they chose not to empower citizens and restore their faith in law, at a time when this balm was sorely needed. 

Surely, when the courts choose to face the facts, in due course if not urgently, they will remember that a lot can be done about police brutality. But rather than simply go for low-hanging fruit by passing, say, another judgment regulating arrests and preaching reporting requirements to curb the flouting of rules, it's time to take things to the next level and really face the monsters lurking within our criminal justice system. And trust me, there are several such Frankensteins in the system — principles that are birthed by judicial orders which have ended up having a life of their own, singularly destroying the very fabric of individual freedom and personal liberty that a constitutional order aspires to secure. 

The first of these monsters is the lip-service paid to the idea of legal assistance within the criminal justice system. To prevent a lawyer-police nexus, the Supreme Court, in Nandini Satpathy, went ahead and spoke harshly against the idea of permitting a lawyer within the confines of a police station. The 2008 amendments to the Criminal Procedure Code gave accused persons the right to request for a lawyer during questioning, but this was still made subject to police consent [Section 41-D Cr.P.C.]. 

When police violence is so deeply entrenched in society, how does it make sense to have a law that, as a default position, leaves individuals at the mercy of police officers and restricts their ability to seek legal assistance? Besides the innumerable false confessions, what such a regime contributes to is situations like the night of December 15 when, after all the horrible violence, lawyers were simply refused entry into the police stations which prevented any determination of who had been detained, let alone the opportunity to offer legal assistance.

The second of these monsters is the very idea that the individual accused or suspect is an equal in her dealings with the police. Let's unpack this a bit. It is stating the obvious to say that the police are the most visible agents of state power, and the very sight of an angry policeman can send a person shaking in her boots. This unique ability to inspire fear is why the law treats both statements by witnesses and confessions by suspects / accused persons with immense skepticism when made to police officers [Section 161 Cr.P.C.; Section 25 IEA].

But at the same time, our legal system permits courts to rely upon these statements and confessions where they consequently lead to the recovery of any material [Section 27, IEA]. The incentive this regime creates for "planting" evidence and "making" persons sing the police's tune is obvious, especially when coupled with the fact that within the confines of a police station, a person is entirely at the mercy of the police officer. But here's the thing: Rather than carry on the legal logic of skepticism to which confessions are subjected and extend it to interrogations at large, the law instead reverses the logic to hold that in the context of "mere questioning" by the police, the law will not even remotely suggest that a person could have been coerced into giving a statement. Instead, it considers this an exchange between equals. The law, thus, willingly ignores the hours of waiting, the aggressive posturing and tone, the repeated badgering, and all coercion, except that which leaves visible marks on the person, to sustain a fiction of voluntariness around the statement by an accused person. This is designed to sanitise our doubts about the purportedly unbelievable recoveries of material that the police might secure on the strength of the statement. All this is done under the gaze of the Indian Constitution that secures a fundamental right against self-incrimination.

In a way, isn't the same logic being perpetuated by the Supreme Court right now, when it asks both sides to maintain peace before it takes up petitions that are seeking intervention to check violence? Is it not insidious to even remotely suggest equality between the police who are tasked with enforcing the state's monopoly of violence with a band of students, and selectively singling out the latter by making them responsible for peace and suggesting that they can't bully the court? Bully how? By the strength of being beaten mercilessly by countless lathi blows and responding by pelting stones in the face of tear gas shells? By being singled out and being held responsible for damage to public property that occurred and was arguably the fallout of violent madness all around? 

To repeat, then: Our constitutional courts can do a lot when it comes to police brutality, much like many other problematic areas of life in India. Besides the tangible change it brings to society, these acts of intervention carry enormous symbolic value, reinforcing a belief in the rule of law in times when there is very little reason for keeping the faith. But at the end of the day, all judicial intervention is an expression of choice. Thus, unlike other days when to hear a matter of "national importance" the Supreme Court's doors were open even on a holiday without any petition being filed, today, courts chose to refuse an urgent hearing of pleas made by hundreds who were hoping for a restoration of faith after facing a night of horror, even though a lot could have been done.


POST SCRIPT: After the Supreme Court refused any urgent hearing in the matter and indicated that the High Court should be approached first, several petitions came to be filed before the Delhi High Court in relation to incidents surrounding the alleged police violence suffered by students. After hearing the arguments for several hours in a packed courtroom, the Delhi High Court today refused to grant any of the interim reliefs sought by the Petitioners. This included reliefs such as appointing an independent fact-finding commission, protecting students against arrest, passing orders to preserve CCTV footage, and providing funds for students to foot their medical bills after being brutally beaten up by persons wearing uniform. On top of which it fixed the next date of hearing in February 2020.

Compare this with what happened outside Tis Hazari Courts in Delhi at the start of November, 2019. After heated arguments between some lawyers and policemen, the scuffle became violent and led to destruction of public property (burning of a police vehicle no less) and police officers opening fire on some advocates. The very next day, on a court holiday, the Delhi High Court entertained a petition that sought orders to protect lawyers from any arrests etc. by police, and also for appointing an independent commission to inquire into the incident. The requests were granted. In spite of this there continued to be reported incidents of sporadic violence by lawyers / people dressed as lawyers across the district courts of Delhi, where the victims of this violence were often police officials but also litigants. There were no observations rebuking the lawyers or asking them to stop the rioting before courts took any actions. In fact, the Court refused government requests to modify the initial orders granting protection from arrests.

Justice is deemed to have been done in both cases.

[The post was amended on 19.12.2019 to add the post script]

Article 22(3): A Constitutional Paradox?

(This post first appeared on the NLSIR Online Blog)

Of late, the transformative nature and potential of the Indian Constitution has been placed under the spotlight thanks to attention from both scholars and courts. The contours of this argument are contested, but according to most versions, the Constitution is an instrument designed to realise an India where the ideals of liberty, equality, and fraternity are fully expressed and protected against arbitrary deprivation. Amidst the focus on India’s transformative Constitution, this post takes a look at Article 22(3). The clause provides that if persons are arrested and detained under preventive detention laws, or are enemy aliens, then the basic protections against arrest and detention provided by Article 22(1) and (2) do not apply. Here, I attack the resulting deprivation of the right to counsel brought about by Article 22(3).* 

Content and Origins 

Article 22 can be understood as consisting of two parts - clauses (1) and (2), and clauses (3) to (7). The first part tells us that all persons are guaranteed certain rights upon arrest: the right to be immediately informed of grounds for arrest, to be produced before a magistrate within 24 hours if detained upon arrest, and to consult and be defended by a counsel of choice. The second part begins with clause (3) telling us that the first part isn’t actually applicable to all persons. Clauses (4) to (7) then detail minimum criteria that any preventive detention law must satisfy: it must inform persons of grounds for detention, enable them to make representations against detention, create Advisory Boards which must approve all detentions longer than 3 months, and fix a maximum period of possible detention. 

I’ve discussed the origins of Article 22 at length elsewhere. It suffices here to state that the first part of Article 22 was intended to salvage what the Constitution lost by deletion of “due process” from Article 21. The second part was guided by the same intentions - since the Constituent Assembly had already decided to grant powers to enact preventive detention laws to both the Union and states, the excision of “due process” theoretically meant that there were no limits to what kind of laws are passed. Clauses (3) to (7) were meant to soften the blow and ensure that state interests are protected by laws that facilitate quick arrest and detention, without completely trouncing individual liberties. 

In this attempt to strike a balance, the right to legal assistance was sacrificed entirely. I say entirely, for while the other rights provided in clauses (1) and (2) are still present in a watered-down form in clauses (4) to (7), the right to legal assistance fails to find any mention. Why? The consistent answer one gets upon consulting the Constituent Assembly Debates is an argument of efficiency. The Assembly feared that letting lawyers into the preventive detention system would invite delays of the kind that the ordinary criminal justice system suffered from, undermining the very swiftness that made preventive detention attractive in the first place. 

Legislative Adaptation and Judicial Treatment 

India’s Provisional Parliament passed the Preventive Detention Act, 1950 [PDA] less than a month after the Constitution came into force. Since this body comprised almost the entirety of the Constituent Assembly, one imagines that the statute closely followed the Assembly’s vision of preventive detention. What kind of proceedings did the PDA envisage? Section 7 obligated communication of grounds without fixing a time limit, and permitted non-disclosure wherever necessary in public interest. Section 10 laid out the procedure of hearings before Advisory Boards and specifically stated that detenus were not entitled to either personal appearance or appearance through counsel. Section 14 went so far as to render grounds of detention entirely confidential, denying even constitutional courts the right to know why a person had been detained. 

This, then, is the ideal vision of preventive detention: proceedings that involved acting first and explaining later, with explanations hardly beyond the bare minimum, with paper pushing and no oral hearings. From A.K. Gopalan onwards, this ideal vision was gradually demolished by the Supreme Court. Judicial engagement with preventive detention followed an accepted script: while the ultimate legality of preventive detention measures was beyond question, the harshness of the regime was not. Towards this, several judicially crafted innovations were made to enhance the fairness component, all the while operating within the bounds of Article 22. 

The Emergency of 1975 - 1977 saw targeted amendments to undermine these innovations and curtail judicial review. This curtailment, though initially resisted by High Courts, was ultimately accepted by the Supreme Court itself in A.D.M. Jabalpur. As the popular narrative suggests, that Court began to restore the content of fundamental rights and its own institutional legitimacy, once the Emergency ended. This led to the opinions in Maneka Gandhi which expanded the scope of Article 21. In a flurry of subsequent decisions, the Court recognised that this expanded Article 21 contained an unenumerated right to counsel, broader than the Article 22(1) guarantee. While Article 22(1) granted a right to counsel of choice, Article 21 carried a right to counsel, thus prohibiting deprivation of life and personal liberty made in absence of legal assistance. 

This belated recognition of the importance of legal assistance and its fundamental link to the right to personal liberty was also soon felt in the sphere of preventive detention. Different benches of the Court in Gopalanachari, Kavita, and Nand Lal Bajaj - all consisting at least of either Justices Krishna Iyer, Sen, or Islam - held that the denial of legal assistance in preventive detention was not absolute. Relying on Article 21, these decisions emphasised the importance of counsel, especially where persons were detained without trial. They held that a detenu still had a right to request for legal assistance, which then had to be adequately considered by authorities. This consideration was ultimately subject to judicial review, providing some measure of oversight. One of these cases, Nand Lal Bajaj, found it “incomprehensible” that the regular criminal justice system granted legal assistance but preventive detention didn’t. But since it was not asked to decide this issue, these remarks remained obiter dicta . 

A.K. Roy and the Current Legal Position 

Maneka Gandhi, an expanded Article 21, and a fundamental right to counsel: this was the context in which the Supreme Court heard a batch of petitions challenging the National Security Act, 1980 [NSA]. The Constitution Bench assembled for this purpose delivered its decision late in December 1981, reported as A.K. Roy v. Union of India, and it almost entirely upheld the validity of the NSA. The controlling opinion was authored by Chandrachud CJ to which three judges signed on, while Gupta J and Tulzapurkar J dissented in part. Analysing the entire decision is beyond the scope of this post. Rather, the focus here is on how the Court unanimously saved Section 11(4) of the NSA, the provision which disentitled detenus from legal representation before Advisory Boards. 

What did the Court do? It relied upon Article 22(3)(b), and held that the right under Article 22(1) to consult and be defended by counsel of choice is inapplicable in the context of preventive detention. The Court acknowledged that preventive detention laws were not only subject to Article 22, but were also open to scrutiny under Articles 14, 19, and 21. Did depriving persons of their liberty without legal assistance satisfy this scrutiny? 

The Court rejected the go-around offered by petitioners: since Article 22(3)(b) only excluded Articles 22(1) and (2), the right to counsel contained in Article 21 was still applicable. The controlling opinion labelled it “impossible” to find that what one part of the Constitution had denied, another provided. It then offered a positive answer as well, holding that the original text of the Constitution was per se “just, fair, and reasonable” and so could not fall foul of Articles 19 or 21. Simply put: since the original constitutional text said detenus don’t get lawyers, there was no question about laws implementing this mandate being unconstitutional for violating rights contained in other provisions of the Constitution. 

Before parting, the Court tried to mollify the harshness of this conclusion which it had arrived at “regretfully”. It held that where the government engaged counsel, a detenu must also be afforded a similar chance, and further, that nothing denied detenus the ability to ask for assistance from a “friend” in proceedings before the Advisory Board. 

A Veneer of Legality 

Preventive detention laws have never been tested by a Constitution Bench since A.K. Roy, and that decision still remains the final word on the issues it considered. In this section, I demonstrate that the controlling opinion’s handling of the issue of denying legal assistance to detenus was flawed and promoted a constitutional vision irreconcilable with the idea of a transformative Constitution. 

The primary basis for upholding Section 11(4) of the NSA in A.K. Roy was that Article 22(3)(b) permitted deprivations of the right to counsel and since it formed part of the original Constitution, it is bizarre to say that the framers themselves had inserted unconstitutionally unreasonable clauses. Though the opinion did not cite Golaknath, this distinction between the original text and amendments had been propounded since then: while the Court happily reviewed amendments, it kept the original text in a hermetically sealed box. This distinction was also accepted by the Court in Keshavananda Bharati as a limit to the basic structure doctrine as well. 

But this privileging of the original test does not make sense. Gautam Bhatia exposed the logical fallacies in this view some time ago, arguments that I adopt and expand here. As he argued, if we think of the basic structure test as promoting faithfulness to values, then how do we justify this separate treatment for the original text? Moreover, the idea that the original text is uniquely faithful to “we, the people” is also flawed: the Constituent Assembly was barely representative of “the people”, nor was it subjected to a ratification process. Also, nothing in the constitutional text itself supports this separate treatment of the original text and subsequent amendments to it. 

The flaw with this approach gets magnified in A.K. Roy because of the context: Articles 21 and 22. The Court in Maneka Gandhi had gone so far as to rewrite the original Constitution by re-inserting “due process” into Article 21. Whatever significance this had for the rest of Indian jurisprudence, the effect of this shift was tectonic in context of Article 22. After all, Article 22 was birthed because the Constituent Assembly had removed the “due process” phrase. Once due process came back into Article 21, it unmoored Article 22 from its very foundations, and directly questioned the adequacy and reasonableness of the limited guarantees that Article 22 provided. 

Accepting that an expanded Article 21 contests the earlier minimums set by Article 22 is the only sensible way that the two can be read together, rather than privileging the original text. This was the direction the Court seemed to be heading in as well. It quickly resolved one issue: the minimum set by Article 22(1) in terms of the right to counsel was insufficient, and was thus expanded by Article 21. This was easy, since Article 22(1) could be argued to be silent about legal aid and not explicitly against it. Article 22(3) was much harder because it expressly excluded certain rights. Fidelity to a basic structure doctrine that focuses on values would then evaluate whether this exclusion was contrary to these values, and give us an answer. 

Rather than resolve this crucial issue of harmonising an expanded Article 21 and Article 22(3), A.K. Roy simply told us that the latter was correct because it was there for longer. And it did so by trying to minimise the significance of this conflict. While the Court privileged the original text, the controlling opinion carries no mention of the peculiar history behind Articles 21 and 22. Further, it either distinguished the recent decisions on the expansion of Article 21 and a right to counsel, or amazingly did not mention them at all where they pertained to the preventive detention regime. 

Conclusion 

A.K. Roy subscribes to a view that the Constitution offers forever static minimum protections to safeguard life and liberty. Currently, the Supreme Court finally acknowledges that constitutional protections are meaningless in abstract, and must be tailored to the unique harms that different generations face. The harm from preventive detention is very different today from what it was in 1950. It is far from an exotic tool to deal with threats to public order, and instead is used to arrest persons on suspicions of copyright violations, video piracy, and cow slaughter. Even more importantly, the very basis for the original minimum constitutional rights secured by Article 22 has ceased to exist ever since the Court re-inserted due process into the Constitution, where it has flourished since. Thus, if the entire milieu has changed so dramatically, is it sufficient to tell us that persons, who can be arrested and jailed without knowing why and kept in jail for months on end, have no right to counsel simply because the Constitution said so from the start? I strongly disagree.

*This post is focused on preventive detention, largely because there has been no instance of applying Article 22(3)(a) that I could trace. Nevertheless, the arguments here, made in the preventive detention context, would also apply to Article 22(3)(a).   

Preventive Justice Part 3 - An Overview of the Statutes

The two previous posts in the Preventive Justice series focused on Article 22 of the Indian Constitution which prescribes basic minimums regarding preventive detention in India. The history behind this constitutional provision - labelled an anachronism - offers further support to that old adage of not judging books by their covers. The development of due process law in India was used to question the sustainability of the basic minimums constitutionally prescribed by Article 22. To recap, it was argued that the Supreme Court has, unambiguously, held that Article 22 is not a complete code and preventive detention laws are open to challenge under Articles 19 and 21. In this concluding post in the series, I look at the many statutes - both federal and state - in India that authorise preventive detention for a wide variety of acts. The question I beg, not always directly, is whether these would pass muster when tested against Articles 19, 21 and 22 of the Constitution. 

Scope of Legislative Power on Preventive Detention

The Seventh Schedule to the Indian Constitution details the various items on which the federal and state legislatures can pass laws. Preventive Detention figures as Entry 9 on the Federal List (List I) as well as Entry 3 of the Concurrent List (List III). These read as follows:

Entry 9, List I: Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.

Entry 3, List III: Preventive detention for reasons connected with security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.

In A.K. Gopalan v State of Madras [AIR 1950 SC 27] the majority held there was no requirement to specify what issue of defence or foreign affairs a preventive detention statute sought to deal with. It would be legal for it to simply refer to the subjects mentioned in these entries as justifications. As we shall see, this proved to be important for courts in upholding the validity of these statutes.

Federal Laws Authorising Preventive Detention

Is it purely coincidental that the federal laws authorising preventive detention in India today have some connection with the 1975 Emergency, when preventive detentions were most routinely ordered? Perhaps. Although the controversial Maintenance of Internal Security Act, 1971 was repealed in 1978, its cousin the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was not. This was, in fact, supplemented by the National Security Act (NSA) and the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (Black Marketing Act) in 1980. What are the purposes of these laws and what do they proscribe?

• COFEPOSA: Allows for preventive detention for "conservation and augmentation of foreign exchange and prevention of smuggling activities." 
• NSA: Persons acting "prejudicial to the defence of India, the relations of India with foreign powers, or the security of India" as well as those acting "prejudicial to the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community can be preventively detained.
• Black Marketing Act: Allows for detention in cases for prevention of "blackmarketing and maintenance of supplies of commodities essential to the community."

Do these objectives fall foul of the tests laid down in Articles 19, 21 and 22? The legality of the NSA was challenged in A.K. Roy v Union of India [AIR 1982 SC 710], and upheld by the Supreme Court. It helped that the legislature had copied the objectives from the Seventh Schedule. 

The COFEPOSA posed a more interesting challenge. Passed before the Emergency, it was also placed in the Ninth Schedule. This was the basis for the Supreme Court upholding its validity in Attorney General for India v Amratlal Prajivandas [AIR 1994 SC 2179]. At that time laws placed in the Ninth Schedule were completely immune from judicial scrutiny. This understanding changed with I.R. Coehlo v State of Tamil Nadu [AIR 2007 SC 861] which held placing a law in the Ninth Schedule could not bar challenges for fundamental rights violations. 

Did that affect the fate of COFEPOSA? The Supreme Court in Dropti Devi v Union of India [(2012) 7 SCC 499] held that this didn't matter. It noted that as the validity of the COFEPOSA had been upheld once, the change brought by I.R. Coelho would not allow another challenge. Still, the Court went ahead to address the merits in the decision, only to bunk the arguments that the COFEPOSA violated Articles 19, 21 and 22. The economic harm that the COFEPOSA purportedly addresses was seen as a measure to safeguard the security of India by the Court.   

State Laws Authorising Preventive Detention

The vast majority of State laws greatly resemble each other - in both substance and in name - and address purported anti-social elements such as Goondas and Bootleggers. Amnesty India has put up a useful resource listing these laws and their objectives which means I can jump right away to the more recent developments on this front. I refer to the amendments to preventive detention laws brought to address video piracy and digital offenders. This was done by Karnataka most recently, giving us the atrociously titled Karnataka Prevention of Dangerous Activities of Acid Attackers, Bootleggers, Depredator of Environment, Digital Offenders, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Land Grabbers, Money Launderers, Sexual Predators and Video or Audio Pirates Act 1985. The problems posed by such amendments by states have been discussed a fair bit already (see here, here and here) and has been considered once by the Madras High Court in 2005. Supplementing those critiques, I argue that these extensions are illegal for the laws do not pass the test posed by Articles 19, 21 and 22. The development of due process would suggest Article 21 poses an important test to the validity of these laws.

Conclusion

The lack of attention to preventive detention legislation in India remains surprising. Especially at at time when there is renewed attention to the expanding scope of detention without trial across the globe. The judicial approval of these statutes has stemmed debate to a certain extent, and has consequently resulted in emboldening states to continually expand preventive detention laws. While preventive action in itself is not a problem, Indian laws (both federal and state laws) display a glaring lack of proportionality in their approach. Prescribing possibly year-long detentions for potential copyright violations, when the offence itself is bailable, is patently unjustified and illegal. Looking ahead, lets see what the future holds. 

Preventive Justice Part 2: Looking inside Pandora's Box

In the previous post, I traced the history behind Article 22 of the Indian Constitution, showing how the clause was considered to be Dr. Ambedkar's version of due process after that idea was excluded from Article 21 [India's guarantee to protect the right to life and personal liberty]. Constitutional developments since have seen the Supreme Court re-introduce the due process idea into Article 21 most famously in Maneka Gandhi's case. This, naturally, raises questions about the position of Article 22 in the panoply of rights to freedom guaranteed under the Indian Constitution. It leads me to consider the history behind the interplay between Articles 19 to 22 in this post. For this I have relied, again, on the books by Granville Austin and Mr. Seervai's commentary, and I would strongly suggest those interested in the issue to consult these sources. I then argue, that Article 22(3)(b) - excluding the right to legal representation for those preventively detained - is contrary to Article 21.

The 'Complete Code' idea - AK Gopalan and RC Cooper

A.K. Gopalan v. State of Madras [(1950) SCR 88] is one of my favourite decisions of the Supreme Court, and probably one of the most misunderstood ones too largely due to the common vilification it suffers after Maneka Gandhi. A.K. Gopalan [Communist Leader, and later Member of Parliament] was detained under the Preventive Detention Act, 1950 [a legislation hastily passed by the Nehru Government a month after the coming into force of India's Constitution to prevent release of the hundreds of persons detained under laws that would soon lapse]. Gopalan challenged the Act for violating Articles 14, 19, 21 as well being contrary to Article 22 itself. The Court upheld the validity of the Act but held Section 14 unconstitutional for violating Article 22(5) - the provision prevented even courts from accessing materials on which detention orders were based.

This post is limited to only one of the several fascinating points of discussion thrown up by Gopalan. That is the issue of Article 22 being a 'Complete Code', which means that the legality of preventive detention laws is limited to being tested only against Article 22 and not the other fundamental rights in Part III of the Constitution. The Attorney General argued this was the correct position of law. Only Mahajan, J. agreed: "I am satisfied on a review of the whole scheme of the Constitution that the intention was to make Article 22 a self-contained in respect of the laws on the subject of preventive detention." Kania, C.J., Sastri and Das, JJ. considered Articles 21 and 22 had to be read together [Kania, C.J.: "According to him [the Attorney General], Article 22 is a complete code. I am unable to accept that contention."]. Fazl Ali, J. went a step further and observed that "In my opinion, it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other."

This means that the 'Complete Code' argument was rejected in Gopalan itself, the only doubts left were regarding applicability of Article 19 to preventive detention laws. Strangely, then, the majority of ten judges in R.C. Cooper [1970 SCR (3) 530, speaking through Shah, J.] held that "The majority of the Court [in Gopalan] held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and 'within the four corners of that Article'." As Mr. Seervai notes, the majority incorrectly considered the 'Complete Code' idea as being approved by Gopalan and that this was further compounded in Haradhan Saha [(1975) 3 SCC 198]. In hindsight some good came of this error. The R.C. Cooper majority upheld the view of Fazl Ali, J. and overruled Gopalan for accepting the 'Complete Code' argument [wrongly, of course]. This cleared the way for preventive detention laws to also be subjected to Article 19 challenges, together with existing tests of Articles 21 and 22. The Article 21 test was later notably strengthened in 1978 by Maneka Gandhi transplanting 'procedure established by law' with 'due process of law' without amending the text of Article 21 itself. Subsequent years saw the just, fair, and reasonable logic of Article 21 seep into preventive detention laws - Francis Coralie Mullin [AIR 1981 SC 746] an eloquent instance of the same.

Pandora's Box: Unleashing Article 21 on Article 22(3)(b)

Opening Pandora's Box is shorthand for taking decisions without appreciating the consequences. I think the analogy aptly reflects the Supreme Court's move to import 'due process' into Article 21. The interplay between the various 'rights to freedom' under Part III was based upon the specific exclusion of due process from Article 21 [discussed in the last post]. It is fair to say that the decision in Maneka Gandhi irreversibly severed Articles 19-22 from that original interpretation. Proceeding from this position, I argue that Article 21 and Article 22(3)(b) cannot coexist in the current constitutional scheme. The limited version of 'due process' guaranteed through Article 22 must give way.

Recall that Article 22(3)(b) barred persons detained under preventive detention laws from consulting and being defended by a legal practitioner of their choice. Like the rest of the preventive detention clause, this was considered necessary due to the situation prevailing at the time by Dr. Ambedkar. The Supreme Court noted its harshness but begrudgingly accepted this position. All this was because Article 22 represented the extent of due process guaranteed in the Constitution. Then the Supreme Court decided to introduce an unfettered concept of 'due process' into Article 21. This led the Court to note in Madhav Hoskot v. State of Maharashtra [(1978) 3 SCC 544] that a 'procedure established by law' entailed a right to appeal, right to counsel and imposed a duty upon the State to provide free legal aid (Krishna Iyer, J. even passed directions to that effect). How, then, does one justify the exclusion of this right to counsel through Article 22(3) to persons who perhaps are in greatest need of legal counsel? 

Five judges in A.K. Roy v. Union of India [(1982) 1 SCC 271] squarely faced this contention. Their answer was simple: detenus had not right to counsel because Article 22(3) specifically excluded it. Notice the helplessness in the opinion: "It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22(3)(b). Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust or unreasonable. ... It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1). [Emphasis mine]" What is crucial here, is the Court relying upon Article 22 itself as the yardstick to determine what is just, fair, and reasonable. I argue that this is incorrect, because after Maneka Gandhi the test of procedural fairness flows from Article 21 and not Article 22. In any event, no part of the Constitution itself remains above scrutiny, and the helplessness of the Court is akin to crocodile tears. 

Conclusion

The idea of a 'Complete Code' in Article 22 was unassumingly sustained by the Supreme Court and eventually buried by it as well. The consequences of this, however, are something that the Court continues to struggle with. While I have focused on clause (b), the retention of Article 22(3) itself despite the Supreme Court heralding a 'due process' standard is unacceptable. Looking at decisions post 1980 concerning preventive detention, it is clear that judges appreciated the problem. Successive decisions did mollify the deprivation of a right to counsel. In Nand Lal Bajaj v. State of Punjab [(1981) 4 SCC 327], the Court held that a detenu had a right to counsel where the Government was permitted to engage a lawyer to argue before the Advisory Board established under a preventive detention law. This, it reasoned, would violate Article 14 and Article 21. In A.K. Roy, after expressing its dire helplessness the Court did go ahead and hold that a person detained had a right to be assisted by a friend ["who, in truth and substance, is not a legal practitioner"] in making a representation. The Court has re-written Article 22(3) to this limited extent, but it dare not take the plunge and declare it wholly redundant.

[kudos to Gautam Bhatia for helping think this post through]     

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.]