Author: Palak Mishra, Haveli Institute of Legal Studies and Research, Silvassa
LinkedIn Profile: https://www.linkedin.com/in/palak-m-0b7ab4371?utm_source=share_via&utm_content=profile&utm_medium=member_android
Abstract
Police interrogation is an essential part of criminal investigation, but it is also a stage at which an arrested person is particularly vulnerable. The loss of personal liberty and the unequal position between the investigating agency and the person in custody make legal safeguards necessary. At the same time, interrogation cannot be conducted as though it were a courtroom proceeding, where every investigative step requires participation by the defence.
This tension has become particularly relevant under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 38 provides that an arrested person is entitled to meet an advocate of choice during interrogation, while expressly stating that such a right does not extend throughout interrogation. The wording therefore raises a precise legal question: does the right to legal assistance during interrogation include a right to have an advocate continuously present throughout police questioning?
The Supreme Court considered this question in The State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju, 2026 INSC 744, decided on 27 July 2026. The Court clarified that Section 38 does not confer an unrestricted right to the continuous physical presence of an advocate throughout interrogation. At the same time, it retained safeguards against threat, inducement, coercion, physical assault, mental harassment and third-degree methods. It also retained audio-visual recording of the actual interrogation and discovery or recovery proceedings, while holding that uninterrupted videography of the accused during transit was not required.
The judgment is therefore not merely about the presence of a lawyer during interrogation. It concerns the broader relationship between individual liberty, custodial safeguards and the investigative powers of the State. This article examines that relationship through the constitutional provisions, statutory framework and judicial decisions that have shaped the scope of legal assistance during police interrogation.
To the Point
The right to legal assistance after arrest serves an important protective purpose because a person in police custody is placed in a position of considerable vulnerability. However, legal assistance does not necessarily mean that counsel must remain continuously present during every stage of police questioning.
Section 38 BNSS adopts a limited but significant formulation. It permits an arrested person to meet an advocate of choice during interrogation, but expressly provides that this right does not extend throughout interrogation. The provision substantially carries forward the safeguard contained in Section 41D of the Code of Criminal Procedure, 1973, which recognised an arrested person’s right to meet an advocate during interrogation, though not throughout interrogation.
The distinction matters because police interrogation and legal representation serve different functions. The investigating agency conducts questioning to collect and verify evidence, whereas counsel protects the legal interests of the person in custody. The law must therefore prevent coercive practices without making legitimate investigation unworkable.
The Supreme Court’s decision in Suda Suresh provides the latest judicial clarification of this statutory boundary under the BNSS.
Legal Jargon
1. Right Against Self-Incrimination — Article 20(3)
A constitutional protection against being compelled to be a witness against oneself. In the context of interrogation, it protects an accused against testimonial compulsion.
2. Right to Counsel — Article 22(1)
The right of an arrested person to consult and be defended by a legal practitioner of choice. It provides an important constitutional basis for legal assistance after arrest.
3. Testimonial Compulsion
The compelled production of evidence through statements or responses that may incriminate the person. The concept is closely connected with the protection guaranteed by Article 20(3).
4. Custodial Interrogation
Questioning conducted while a person is in police custody. Since the investigating agency exercises control over the person’s liberty, such questioning remains subject to constitutional and procedural safeguards.
5. Remand
Judicially authorised detention during the investigation or other stages of criminal proceedings. Section 187 BNSS provides the statutory framework governing detention and police custody during investigation.
6. Custodial Safeguards
Legal and procedural protections intended to prevent coercion, torture, physical assault, mental harassment and other forms of abuse in custody. D.K. Basu v. State of West Bengal is a leading authority in the development of such safeguards.
Relevant Statutory Provisions
Article 20(3), Constitution of India: Protects a person accused of an offence from being compelled to be a witness against himself. It forms an important constitutional safeguard during interrogation.
Article 21, Constitution of India: Protects life and personal liberty and provides the broader constitutional framework within which custodial treatment and investigation must operate.
Article 22(1), Constitution of India: Guarantees an arrested person the right to consult and be defended by a legal practitioner of choice.
Section 38, BNSS: Provides that when a person is arrested and interrogated by the police, the person is entitled to meet an advocate of choice during interrogation, though not throughout interrogation.
Section 187, BNSS: Governs the procedure relating to detention and police custody during investigation and is relevant to the statutory framework within which custodial interrogation takes place.
The Proof
The legal position on counsel during police interrogation emerges from the interaction between constitutional safeguards, statutory protection and judicially recognised limits on investigative power.
Article 20(3) protects an accused from compelled self-incrimination, while Article 21 safeguards life and personal liberty. Article 22(1) further guarantees an arrested person the right to consult and be defended by a legal practitioner of choice. These protections continue to operate during investigation and custodial interrogation.
Section 38 of the BNSS gives statutory effect to a more specific safeguard. It provides that an arrested person is entitled to meet an advocate of choice during interrogation, while expressly stating that this right does not extend throughout interrogation. The provision substantially carries forward Section 41D of the Code of Criminal Procedure, 1973, which was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) and came into force on 1 November 2010. The distinction is therefore between a right to access or meet counsel and an unrestricted right to the advocate’s continuous physical presence during questioning.
The judicial development of this principle can be traced to Nandini Satpathy v. P.L. Dani, where the Supreme Court emphasised the protection against compelled self-incrimination during questioning. In D.K. Basu v. State of West Bengal, the Court laid down safeguards against custodial abuse and recognised that an arrestee may be permitted to meet a lawyer during interrogation, though not throughout it.
Poolpandi v. Superintendent, Central Excise further demonstrated that persons interrogated under the Customs Act and FERA could not claim a general right to the presence of a lawyer during questioning.
This jurisprudential background was directly relevant in The State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju, 2026 INSC 744. The Supreme Court clarified that Section 38 BNSS does not confer an unqualified right to the continuous physical presence of an advocate throughout interrogation. At the same time, the Court retained safeguards designed to prevent threat, inducement, coercion, physical assault, mental harassment and third-degree methods. It also retained audio-visual recording of the actual interrogation and discovery or recovery proceedings, while holding that uninterrupted videography during transit was not required.
The decision therefore establishes a balanced position: legal assistance remains a safeguard against custodial abuse, but counsel’s role does not extend to continuous participation in or interference with police questioning. Section 38 protects the arrested person’s access to legal assistance while preserving the investigating agency’s ability to conduct an effective investigation within constitutional and statutory limits.
Case Laws
1. Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424
The Supreme Court examined the protection against self-incrimination in the context of police questioning. The Court recognised the importance of Article 20(3) during interrogation and emphasised the significance of access to legal consultation in protecting constitutional rights.
Relevance: This case provides the constitutional foundation for the present discussion. It establishes why police questioning cannot be treated merely as an investigative exercise divorced from the rights of the person being questioned.
2. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416
The Supreme Court laid down safeguards relating to arrest and detention to prevent custodial violence and abuse. Among its directions was that an arrestee may be permitted to meet a lawyer during interrogation, though not throughout the interrogation.
Relevance: This is one of the closest precedents to Section 38 BNSS. The distinction between meeting a lawyer during interrogation and having the lawyer present throughout it is substantially reflected in the wording of the present provision.
3. Poolpandi v. Superintendent, Central Excise, (1992) 3 SCC 259
The Supreme Court considered whether persons interrogated under the Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973 could insist upon the presence of lawyers during questioning. The Court rejected a general right to such presence in that investigative context.
Relevance: Poolpandi helps define the limits of the claim to counsel’s presence. It demonstrates that legal assistance and continuous physical presence of counsel are distinct propositions, particularly where the statutory framework and status of the person being questioned differ.
4. Senior Intelligence Officer, Directorate of Revenue Intelligence v. Jugal Kishore Samra, (2011) 12 SCC 362
The Supreme Court considered a request that interrogation be conducted in the presence of the respondent’s advocate. While the Court did not recognise such presence as an absolute right, it adopted a limited safeguard in view of the facts and circumstances, permitting the advocate to observe the interrogation from a distance or beyond a glass partition, without being within hearing distance or consulting the person during questioning.
Relevance: The case provides a useful practical bridge between the earlier custodial safeguards and Suda Suresh. It demonstrates how a court can permit protective observation without allowing counsel to interfere with the investigative process.
5. The State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju, 2026 INSC 744
The Supreme Court decided the case on 27 July 2026 before Justices Vikram Nath and Sandeep Mehta. The appeal concerned conditions imposed during police custody in an investigation into the alleged custodial death of Gade Sai Krishna. The Court considered, among other issues, the scope of Section 38 BNSS and whether restrictions imposed on the investigating agency were workable.
The Court held that Section 38 gives an arrested person the right to meet an advocate of choice during interrogation but does not confer an unqualified right to the advocate’s continuous physical presence throughout every interrogation session. It retained the safeguard permitting the advocate to remain within the site of interrogation where the accused could be seen, while clarifying that such presence does not amount to a right to continuous participation or permit interference with the investigation.
The Court also retained audio-visual recording of actual interrogation and discovery or recovery proceedings, while holding that uninterrupted videography of transit was not required. It further maintained safeguards against threat, inducement, coercion, physical assault, mental harassment and third-degree methods.
Relevance: This is the most directly relevant authority because it is the Supreme Court’s latest interpretation of Section 38 BNSS. It brings together the earlier principles concerning legal assistance, custodial safeguards and investigative autonomy and clarifies the boundary between protection of the arrested person and effective police investigation under the BNSS.
Conclusion
The question of legal assistance during police interrogation is ultimately a question of balance: how far can investigative power extend without compromising individual dignity and constitutional protection?
Section 38 BNSS recognises that an arrested person should not be left without access to legal assistance, but it does not transform the advocate into a continuous participant in police questioning. Suda Suresh makes that boundary clearer while retaining safeguards against coercion and custodial abuse.
The journey from Nandini Satpathy and D.K. Basu to Jugal Kishore Samra and finally Suda Suresh shows that Indian law has not simply chosen between liberty and investigation. Instead, it has attempted to make both operate within lawful limits.
An effective investigation is not merely one that obtains answers; it is one that obtains them without losing sight of the law that gives the investigation its legitimacy.
FAQ
1. Does Section 38 BNSS give an arrested person the right to have a lawyer beside them throughout interrogation?
No. Section 38 gives an arrested person the right to meet an advocate of choice during interrogation, but expressly states that the right does not extend throughout interrogation. Suda Suresh confirms that this does not amount to an unqualified right to the advocate’s continuous physical presence.
2. If the lawyer cannot remain throughout interrogation, does the accused remain unprotected?
No. The absence of continuous counsel does not remove constitutional protection. Articles 20(3), 21 and 22(1), together with statutory and judicial safeguards against custodial abuse, continue to apply. Suda Suresh also expressly retained safeguards against coercion, physical assault, mental harassment and third-degree methods.
3. Can an advocate interrupt the police if the advocate believes that a question is improper?
No. Section 38 does not make the advocate a participant in the investigation. In Suda Suresh, the Supreme Court maintained safeguards regulating the advocate’s presence while preventing interference or communication during interrogation.
4. Why did the Supreme Court retain the arrangement allowing the advocate to remain within sight of the accused?
The arrangement provides a protective safeguard without converting the lawyer into a participant in questioning. It is also consistent with the practical approach adopted in Jugal Kishore Samra, where the advocate was permitted to observe the interrogation from a distance or beyond a glass partition without being within hearing distance or consulting the person being questioned.
5. Is Section 38 BNSS a completely new right?
No. Section 38 substantially carries forward the safeguard contained in Section 41D of the Code of Criminal Procedure, 1973, which similarly recognised the right of an arrested person to meet an advocate during interrogation, though not throughout interrogation.
6. Does Suda Suresh mean that lawyers have no role during police interrogation?
No. The judgment does not eliminate legal assistance; it clarifies its limits. An arrested person retains the statutory right to meet an advocate during interrogation, while Section 38 does not guarantee the advocate’s continuous physical presence or permit interference with questioning. The decision therefore seeks to protect the person in custody without making counsel’s participation a substitute for the investigative process.
