The Supreme Court has clarified that Section 38 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 does not grant an accused the right to have a lawyer remain continuously present during police interrogation. Instead, the provision only guarantees the right of an arrested person to meet an advocate of their choice while interrogation is underway.
A Bench comprising Justices Vikram Nath and Sandeep Mehta held that the statutory safeguard cannot be interpreted as permitting uninterrupted physical presence of legal counsel during every stage of questioning.
The Court observed:
“A plain reading of the provision makes it clear that the right guaranteed thereunder is the right to meet an advocate of choice during interrogation. It does not, by any means, contemplate the continuous, ongoing physical presence of an advocate for the entirety of each interrogation session, whatever be the visual or audible distance maintained.”
The ruling came while deciding an appeal filed by the State of Andhra Pradesh against an order of the High Court concerning the police custody of an accused.
The High Court had directed that two advocates be nominated to remain available at the prison during the accused’s police custody. It had further ordered that one of them should be allowed to remain present at any point during the interrogation.
Challenging these directions, the State argued before the Supreme Court that such conditions placed unnecessary restrictions on the investigative process and interfered with effective custodial interrogation.
Accepting the State’s submissions, the Supreme Court held that the High Court’s direction exceeded the scope of Section 38 BNSS. According to the Bench, interpreting the provision as conferring an unrestricted right to continuous legal presence during questioning would go beyond what Parliament intended.
The judgment, authored by Justice Sandeep Mehta, noted that such an interpretation could impede the conduct of custodial investigations and was therefore legally unsustainable.
The Court stated:
“However, the direction that such presence should be available ‘at any given point of time during the interrogation’, if construed as conferring an unqualified entitlement to continuous presence, would travel beyond what Section 38 BNSS itself contemplates.”
While modifying the High Court’s order, the Supreme Court did not completely deny access to legal assistance. Instead, it directed that the accused’s lawyer may remain at the interrogation venue, but only from a position where the advocate can see the accused without participating in or remaining physically present throughout the questioning.
