Right to counsel in custody
Context:
Arrested Mumbai policeman Sachin Waze has sought his lawyer’s presence during questioning, while the NIA has argued that this insistence is hampering the probe.
Is access to a lawyer the right of an accused?
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”.
- 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 that an accused is entitled to “meet an advocate of his choice during interrogation, though not throughout interrogation”.
Supreme Court judgments:
In the D K Basu case of 1997:
The Court considered the guiding principles to be followed by investigating agencies in cases of arrest or detention.
- The judgment states that “an arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation”.
- The Supreme Court stressed the safeguards for accused, but also spoke of “difficulties in detection of crimes”, especially in cases of “hardcore criminals”, and ruled that a lawyer cannot be permitted to remain present throughout the interrogation.
In Senior Intelligence Officer vs Jugal Kishore Sharma (2011):
It allowed the accused’s lawyer to “watch the proceedings from a distance or from beyond a glass partition”, but said “he will not be within the hearing distance and it will not be open to the respondent to have consultations with him in course of the interrogation”.
However, 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.