Editor’s Note: In this post, Prateek Joinwal* examines the right to legal counsel in India. After drawing parallels with American jurisprudence, he concludes that this right is a “limited right” in India, and proceeds to examine the ramifications of the same.
In a country like ours, which celebrates H.L. Packer’s ‘due process’ model of criminal justice that aims to protect everyone’s constitutional rights, ensuring a fair trial of the accused assumes primacy over punishing the offender. Accordingly, under this model, allowing an accused to consult and/or be defended by a legal practitioner of his/her choice is considered imperative in order to assure a fair trial. Article 22(1) of the Indian Constitution seeks to safeguard the aforementioned right of the accused to garner advice from a legal counsel of his/her choice. Evidently, §303 and §304 of the Code of Criminal Procedure, 1973 (“CrPC”) manifest the aforementioned constitutional mandate.
However, the statutory right to be consulted by a legal counsel often raises a few issues vis-à-vis its application in criminal law when an accused is either remanded or placed in police custody for interrogation. Since legislations are relatively silent on the ambit of this legal advice that the accused is entitled to, this post shall make use of judicial pronouncements on the above matter so as to demystify the scope of an accused’s right to be consulted by a legal counsel.
The Scope of the Right to Counsel in Criminal Law: Juxtaposing the Rights of the Accused with the Social Obligations to Disclose Guilt
The locus classicus on the subject of an accused’s right to counsel in criminal matters is the U.S. Supreme Court’s judgment of Gideon v. Wainwright, wherein, the Court had held that the right to counsel included within its purview the right to have a lawyer appointed at the expense of the State, if the accused was an indigent. While delivering the judgment, Black J. had adjudged that in an adversarial system, “(the accused) could never be assured a fair trial unless counsel is provided for him.” The principle laid down in Gideon was subsequently followed by the Supreme Court of India (“SC”) in its judgments of Hussainara Khatoon and Nandini Sathpaty.
In the former, Justice Bhagwati and D.A. Desai were of the view that the prolonged detention of the under-trial prisoners in the State of Bihar was violative of their right to personal liberty and thus stated that the right to free legal services was implicit in the constitutional guarantee of Article 21.The authoritative judgment of J. Krishna Iyer in the Satpathy case was pioneering in as much as it pronounced that Article 20(3) read with Article 22(1) of the Constitution mandated the police to allow the accused to consult his/her advocate at the time of being interrogated. While the presence of a counsel was denied by the Supreme Court in in re Poolpandi on the ground that any person interrogated during an investigation under the provisions of the Customs Act, 1962 or the Foreign Exchange Regulation Act, 1973 is not presumed to be an “accused” within the meaning of Article 20(3), the same Court allowed an accused to seek legal counsel during interrogation in re D.K. Basu. Reaffirming Satpathy, the Court in D.K. Basu laid down eleven guidelines to be followed in all cases of arrest and/or detention. One such guideline stipulated that the accused had the right to seek the presence of his counsel during his interrogation, but this presence was not guaranteed throughout the interrogation. As a corollary of the aforementioned judgment, §41D was introduced in the CrPC via an amendment in 2009 to grant statutory recognition to the principle laid down in the judgment. Further, in the case of cognizable offences, the accused’s right to consult legal counsel is triggered only as soon as he/she is produced before the magistrate.
These developments have engendered a ‘limited right’ to legal advice in India, a position which is in contrast with the position of the law on the right to counsel in other jurisdictions. In U.S.A., for instance, subsequent to Miranda v. Arizona, any suspect in police custody is given the right to invoke his/her fifth amendment right (also known as Miranda Right) of having the interrogation conducted in the presence of his/her counsel. Once this right is invoked, the police is bound to cease the investigation until the accused is provided with suitable legal advice. What benefit does the limited right of legal advice in India then, seek to serve?
Possible Ramifications of Having a Limited Right to Counsel
The CrPC does not define the terms ‘custody’ and ‘arrest’. The Supreme Court had nevertheless held that while every arrest involved custody, not every instance of police custody could correspondingly amount to an arrest. Police custody is said to commence as soon as the suspect’s freedom of movement is restricted via police surveillance. Now, an interrogation often follows after the period of custody has commenced. As per the DK Basu case, the presence of legal counsel is not mandated throughout the interrogation period. Moreover, practically too, the accused cannot obtain access to a counsel in instances like these. This absence of legal counsel at the beginning of the interrogation can play to the accused’s detriment, since it does not ipso facto render the accused’s statements inadmissible. Voluntary statements made during this time without consulting a lawyer may still hold evidentiary value even though these statements may not have been made with the advice of/in the presence of legal counsel. In this manner, the limited right to legal counsel prejudices the accused.
Moreover, is a trite notion that suspects have to be provided with access to legal counsel in the initial stages of the criminal justice process, for, it is in the first few hours of police detention wherein the investigation agencies tend to garner the most crucial pieces of evidences. Since most detainees lack the resources and the skill-set to dodge the coercive intricacies of the criminal justice system, early access to advice by a competent counsel helps them in assuring a fair trial for themselves. If such access is legally or practically denied to the suspects, they would be rendered susceptible to the evils of an unregulated pre-trial detention which would exacerbate their already necessitous condition. Hence, the imperative nature of the right and certain ramifications of its violation further mandate that it must be strengthened beyond a mere “limited right”.
Most arguments against the notion of providing for early legal aid often blame the ‘due process’ for making the process of interrogation redundant, for, the accused would never confess his guilt in the presence of his counsel. Countries, particularly those with an inquisitorial tradition, argue that the involvement of the counsel interferes with the interrogation process which is designed to reveal the ‘truth’. However, we fail to realise that it is the consultation which also leads to an early confession, saving the accused from the adversities of interrogation and trial. Further, the presence of a counsel ensures that the agents of the State act lawfully while recording statements, for, it is ultimately the prosecution who has to show that the confession was made voluntarily. In any case, ascertaining the voluntariness of a statement the presence of a counsel is not considered as a determinative factor.
Thus, while balancing the right of the accused with the obligation to punish deviants, the right to counsel in countries such as the U.S. has shown that the most suitable way to strike a balance would be to allow custodial interrogation in India in the presence of a lawyer. Such a model would go a long way in suppressing the exploitation of suspects by agents of the State and instill a sense of faith in custodial interrogations.
Prateek Joinwal is a third-year student at the West Bengal National University of Juridical Sciences, Kolkata.
 Inbau, Law Enforcement, the Courts, and Individual Civil Liberties in Criminal Justice in Our Time 99, 134 (Howard ed., 1965).
 Office of the United Nations High Commissioner for Human Rights, Preventing Torture: An Operational Guide for National Human Rights Institutions, HR/PUB/10/1 (May 2010); Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (C.P.T.) 9 (2006).