The quest for justice lies at the heart of any legal system. From the moment an
individual is accused of a crime, a series of procedures and safeguards are set
in motion to ensure that their rights are protected and that the truth is
discovered. One critical stage in this process is the interrogation, where the
accused is subjected to questioning by law enforcement authorities. During this
often intense and high-pressure phase, the presence and role of a lawyer can
significantly impact the fairness and outcome of the proceedings.
The rights and responsibilities of lawyers during interrogation are central to
maintaining the integrity of the legal process. Lawyers act as advocates for
their clients, ensuring that their fundamental rights are upheld, and the
procedures followed align with legal standards. While the focus of
interrogations is typically on obtaining information from the accused, it is
equally important to consider the position and rights of their legal
This article explores the rights afforded to lawyers during interrogations, the
impact on fairness and protection of the accused, ethical considerations, and
potential challenges they face. By understanding these rights, we can promote
robust legal protections and contribute to a balanced criminal justice system
that respects individual rights and upholds the principles of justice.
Ultimately, this exploration of the rights of lawyers during interrogation seeks
to contribute to the ongoing dialogue and understanding of how legal systems can
effectively balance the needs of law enforcement with the rights and protections
of the accused. Through this pursuit of justice, we can strive to build a fair
and equitable criminal justice system that respects the rule of law, safeguards
individual rights, and upholds the principles upon which our societies are
The present situation
The International Covenant on Civil and Political Rights affirms the accused's
right to be informed of the reasons for an arrest, the charges against them, and
the right to legal representation. In the United States, this concept is
commonly known as the "Miranda rights" or "Miranda warning," which requires a
police officer to inform a detained suspect that they have the right to consult
with a lawyer for advice prior to questioning and the right to have a lawyer
present during the interrogation.
In India, the safeguards available to a person in such circumstances are
enshrined in the Constitution. Article 20 (3) states: "No person accused of any
offence shall be compelled to be a witness against himself".
In addition, Article 22 states that a person cannot be denied the right to
consult and to be defended by a legal practitioner of his choice. This includes
provisions that grant an accused the "right to consult" a lawyer. Section 41D of
the Criminal Procedure Code (CrPC) states:
Section 41D. Right of arrested person to meet an advocate of his choice during
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
Are lawyers allowed to remain present during interrogation of an accused in
In contrast to certain jurisdictions, India does not allow lawyers to accompany
an accused individual throughout the entirety of their investigation. Aside from
the provisions outlined in Section 41D of the CrPC (Code of Criminal Procedure),
courts also rely on the influential Supreme Court judgment in the D K Basu case
of 1997, which provides the guiding principles for investigating agencies in
cases of arrest or detention.
According to this judgment, an arrested individual
may be granted the opportunity to meet with their lawyer during the process of
interrogation, albeit not continuously. While emphasizing the importance of
safeguards for the accused, the Supreme Court acknowledged the challenges
involved in detecting and investigating crimes, particularly those involving
"hardcore criminals." Consequently, the court ruled that lawyers cannot be
permitted to remain present throughout the entire duration of the interrogation.
Relevant Case Laws/Precedents:
Directorate of Revenue Intelligence v. Jugal Kishore Samra,
(2011) 12 SCC 362 :
(2012) 1 SCC (Cri) 573 : 2011 SCC OnLine SC 888 at page 374
29. Taking a cue, therefore, from the direction made in D.K. Basu [(1997) 1 SCC
416 : 1997 SCC (Cri) 92] and having regard to the special facts and
circumstances of the case, we deem it appropriate to direct that the
interrogation of the respondent may be held within the sight of his advocate or
any other person duly authorised by him. The advocate or the person authorised
by the respondent may watch the proceedings from a distance or from beyond a
glass partition but he will not be within the hearing distance and it will not
be open to the respondent to have consultations with him in the course of the
In many criminal cases, it is left to the discretion of the court that has
remanded an accused to the custody of the police, to decide on whether the
lawyer can be permitted to meet the person for a stipulated time in private when
interrogation is not in progress.
Guidelines Laid Down by The Hon'ble Supreme Court in D.K. Basu Case
vs. State of West Bengal 1997 1 SCC 416]
The Hon'ble Supreme Court Guidelines on arrest:
D.K. Basu v. State of West Bengal,
1997 (1) RCR (Criminal) 372 : (1997) 1 SCC
416 wherein their Lordships of the Hon'ble Supreme Court have summed up the
legal position as under:
"We, therefore, consider it appropriate to issue the following requirements to
be followed in all cases of arrest or detention till legal provisions are made
in that behalf as preventive measures:
- The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
- That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
- A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he-has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
- The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
- The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
- An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
- The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
- The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
- Copies of all the documents including the memo of arrest referred to above, should be sent to the Ilaqa Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
- A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
- In Abdul Rajak Haji Mohammed v. Union of India, 1986 SCC OnLine Bom 45 :
(1986) 2 Bom CR 187 : (1986) 88 Bom LR 158 : (1989) 65 Comp Cas 78 : 1986 Cri LJ
2018 : (1986) 25 ELT 305 : (1986) 10 ECC 237 at page 197
13. Shri Jaisinghani referred to the observations of Their. Lordships of, the
Supreme Court in the case of 1(Smt. Nandini Satpathy v. P.L. Dani), reported in
(1978) 2 SCC 424 : A.I.R. 1978 S.C. 1025, wherein. Their Lordships held:�
We hold that section 161 enables the police to examine the accused during
investigation, the prohibitive sweep of Art. 20(3) goes back to the stage of
police interrogation-not as contended, commencing in Court only. In our judgment
the provisions of Art. 20(3) and section 161(1) substantially cover the same
area, so far as police investigations are concerned.
The ben on self-accusation
and the right to silence, while one investigation or trial is under way, goes
beyond that case and protects the accused in regard to other offences pending or
imminent which may deter him from voluntary disclosure of criminatory matter. We
are disposed to read 'compelled testimony as evidence procured not merely by
physical threats or violence but by psychic torture, atmospheric pressure,
environmental coercion, tiring interrogative prolixity, overbearing and
intimidatory methods and like-not legal penalty for violation��������������
right to consult an advocate of his choice shall not be denied to any person who
is arrested. This does not mean that persons who are not under arrest or custody
can be denied that right. The spirit and sense of Art. 22(1) is that it is
fundamental to the rule of law that the services of a lawyer shall be available
for consultation to any accused person under circumstances of, near-custodial
interrogation. Moreover, the observance of the right against self-incrimination
is best promoted by conceding to the accused the right to consult a legal
practitioner of his choice.
Lawyer's presence is a constitutional claim in some circumstances in our country
also, and, in the context of Art. 20(3), is an assurance of awareness and
observance of the right to silence������We think that Art. 20(3) and Art. 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. Over reaching Art. 20(3) and section 161(2) will be obviated by this
We do not lay down that the police must secure the services of a
lawyer. That will lead to 'police-station-lawyer' system, an abuse which breeds
vices. But all that we mean is that if an accused person expresses the wish to
have his lawyer by his side when his examination goes on this facility shall not
be denied, without being exposed to the serious reproof that involuntary
self-crimination secured in secrecy and by coercing the will, was the project."
21. In Nandini Sataphhy's case
Krishna Iyer, J., referred to the Miranda
case decided by the U.S. Supreme Court. Prior to the Miranda case, the Supreme
Court of U.S.A. dealt with the case of 5(Escobedo v. Illionis), 378 U.S. 478
(1964) in which the appellant repeatedly asked for and was denied the
opportunity to see his Attorney during his interrogation by the Police.
Incriminating statements made by him during interrogation were used as evidence
against him. Escobedo challenged his conviction as a denial of his right to
Counsel. Goldberg, J., observed:�
"We have�learned�that no system of criminal justice can, or should, survive if
it comes to depend for its continued effectiveness on the citizens abdication
through unawareness of their constitutional rights. No system worth preserving
should have to fear that if an accused is permitted to consult with a lawyer, he
will become aware of, and exercise, these rights. If the exercise of
constitutional rights will thwart the effectiveness of a system of law
enforcement, then there is something very wrong with that system.
We hold, therefore, that where, as here, the investigation is no lodger a
general inquiry into an unsolved crime but has begun to focus on a particular
suspect, the suspect has been taken into police custody, the police carry out a
process of interrogations that leads itself to eliciting incriminating
statements, the suspect has requested and been denied an opportunity to consult
with his lawyer, and the police have not effectively warned him of his absolute
constitutional right to remain silent the accused has been denied 'the
Assistance of Counsel' in violation of the Sixth Amendment and that no statement
elicited by police during the interrogation may be used against him at a
22. Two years later the Supreme Court of the United States decided the case of
6(Miranda v. Arizona), 384 U.S. 436 (1966), in which Chief Justice Warrenk made
the following observations:
"�the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates
the use of procedural safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we mean questioning initiated by
law Enforcement Officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. As for the procedural
safeguards to be employed, unless other fully effective means are devised to
inform accused persons of their right of silence and to assure a continuous
opportunity to exercise it, the following measures are required. Prior to any
questioning, the person must be warned that he has a right to remain silent that
any statement he does make, may be used as evidence against him and that he has
a right to the presence of an attorney."
23. The Supreme Court of Americal has, therefore, held that the right of an
Accused to the presence of his Advocate during custodial interrogation is
24. On a reading of Article 20(3) and Article 22(1) of our Constitution, it
appears clear that an accused person is entitled to the presence of his advocate
during his interrogation by a Police Officer. That position has been asserted
without reservation in Nandini Satpathy's case
, (1978) 2 SCC 424 : A.I.R.
1978 S.C. 1025. If an accused person during interrogation by a Police Officer be
permitted the right to the presence of his advocate, I do not see any reason why
an accused person or a person suspected of an offence should not be afforded the
came right when he is being interrogated by an Officer of the Enforcement
Directorate? There does not appear to be anything in the Foreign Exchange
Regulation Act which forbids the presence of an advocate during interrogation.
Quite the contrary, in my view, the provisions, of section 40 of the F.E.R.A.
permit such a right to a person summoned under that section.
In conclusion, the examination of the rights of lawyers during interrogation
highlights the pressing need for expanded legal protections in India. By
granting lawyers enhanced rights and ensuring their presence during
interrogations, the Indian legal system can better uphold the principles of
justice, safeguard individual rights, and promote a fair and transparent
criminal justice process.
Currently, the rights of lawyers during interrogation in India are limited,
which poses significant challenges to the pursuit of justice. Allowing lawyers
to be present during interrogations would address these challenges and bring
about several notable benefits.
Firstly, the presence of lawyers during interrogations would help counteract
potential abuses of power by law enforcement authorities. Lawyers serve as a
crucial check on coercive tactics, ensuring that the rights of the accused are
respected and protected. By providing legal guidance and advice, lawyers can
effectively prevent coerced or involuntary confessions, promoting fair and
reliable evidence gathering.
Furthermore, the involvement of lawyers in the interrogation process strengthens
the protection of constitutional rights and due process. Lawyers are equipped
with legal knowledge and expertise that enables them to assert and safeguard the
rights of their clients effectively. They can ensure that individuals understand
their rights, including the right to remain silent and the right against
self-incrimination, under Article 20(3) of the Indian Constitution. This
understanding is vital to preventing individuals from unwittingly compromising
their own defense and ensuring a level playing field between the accused and the
In addition, lawyers bring valuable legal perspectives to interrogations. Their
presence ensures that legal nuances are properly considered and that any
potential breaches of legal procedures are challenged. By scrutinizing the
admissibility of evidence, lawyers contribute to the integrity of the criminal
justice system and help prevent wrongful convictions.
Granting lawyers more rights during interrogations in India would also enhance
public confidence in the legal system. When individuals see that their legal
representatives are actively involved in the process, they are more likely to
trust in the fairness and impartiality of the proceedings. This trust
strengthens the legitimacy of the legal system and encourages cooperation with
law enforcement, ultimately leading to more effective investigations.
However, it is crucial to strike a balance between the rights of lawyers and the
interests of law enforcement in India. Any expansion of lawyer's rights should
be accompanied by measures to address legitimate concerns, such as the
prevention of obstruction of justice or protection of ongoing investigations.
Safeguards can be implemented to ensure that lawyers' access is reasonable, such
as the presence of an independent observer or time limitations.
In conclusion, the need for increased rights for lawyers during interrogations
in India is clear. By expanding these rights, India can enhance the pursuit of
justice, protect individual rights, and foster a fair and transparent criminal
justice system. The presence of lawyers during interrogations would serve as a
vital safeguard against abuses of power, promote due process, and strengthen
public trust in the legal system. It is through such reforms that India can
continue to progress towards a more just and equitable society.