Right to Legal Counsel: An Analysis of Section 41 D of CrPC & Article 22(1) of the Constitution


This article has been written by Riddhi Banga a student at

NALSAR University of Law, Hyderabad.



One of the fundamental tenets of the due process model that India celebrates is the benefit of presumption of innocence of the accused till he is found guilty. The focus therefore, is on ensuring a fair trial rather than on punishing the accused. The accused are granted rights under the laws governing the country. The primary understanding behind granting rights these rights is that the governments have extensive resources in order to facilitate the prosecution process against the accused who might not have the same quantity of resources.

The right to legal counsel is one such right granted to the accused. A lawyer helps prevent police brutality, including torturous interrogation, avoiding self-incriminating statements and also informs the accused of the rights they have throughout the process which includes the application for a bail.

The locus classicus of the right to legal counsel for an accused seems to be from the U.S judgement of Gideon v. Wainwright where the court held 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 this case has also been followed in India. Article 22(1) of the Indian Constitution grants the accused the constitutional right to consult an advocate. The case of Nandidni Sathpathy v. PL Dani held that the spirit of Article 22(1) of the Constitution is that the accused should be allowed to consult an advocate. In 2010, to make the Criminal Procedure code congruent with this Constitutional right, Section 41D was added to it. The statutory right of consulting a legal counsel raises issues with respect to its ambit and application in practise and in criminal law.



Disparities between the Constitution and the Code


Article 22(1) reads “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for arrest nor shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.” A plain reading of this text indicates that there exists a safeguard for misusing of authority and the right to be represented by a legal professional as it forms a part of the Fundamental Rights. The text of section 41D of Section 41D of the CrPC says “When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate, though not throughout the interrogation.” The constitutional right does not put a limitation to one’s right to consult a lawyer even during interrogation period but the CrPC does so. The point where the right to consult a lawyer is to be granted remains ambiguous. The absence of a lawyer indicates the high probability of interrogating officers to use excessive force and techniques subsequent to which the position of the lawyer becomes redundant. Further, the length of time during the process of interrogation where the accused can retain the lawyer also remains uncertain. Possibility may arise that the lawyer remains with the accused for just a small period of time and dismissed later, after which the police may abuse the accused.

The court in the case of Senior Intelligence Officer, Director of Revenue Intelligence v. Jugal Kishore Samra held that an accused isn’t entitled to have a lawyer present during the interrogation but the lawyer can “watch proceedings from a distance or beyond a glass partition but…not within hearing distance.” The presence of lawyer gets diluted to a mere feature of tokenism, the reason being that the function of the lawyer is to keep in check that the accused is not forced or coerced into making self-incriminating statements. The lawyer in such restrictions and barriers cannot possibly hear what transpires between the officer and his client. Such statements may still have evidentiary value even though the legal counsel wasn’t present.

The coercive measures are not just physical in nature but also include the psychologically techniques of interrogation like isolation, threats to families, sleep deprivation. Such techniques leave no physical traces. The court has also taken the view in the case of Mohd. Ajmal Amir Kasab v. State of Maharashtra that in cases of failure to follow the norm of having a lawyer with the arrestee during the pre-trial stages would not vitiate the trial unless ‘material prejudice’ is proved to have been caused and this is an extremely high bar. These decisions framed the Code’s provision but have also ended up chipping away of personal liberty and lean towards the ‘public order’ perspective and compromises on personal liberty. A lawyer’s absence could be detrimental as the arrestee would not be able to prove whether his right against self-incrimination was violated or if he had been abused during the process, especially the psychological techniques. There is thus a failure of harmonization of the CrPC with Article 22(1).

Further, the wording of the Constitution and CrPC seems to have a difference. The word “consult” in the constitution is formalised and indicates an interaction between the accused and the lawyer. However, the word “meet” can have a wide range of meanings that could range from being a formal interaction to a mere momentary interaction subsequently leaving the purpose defeated. Read with the conjunction limitation, the word ‘meet’ impliedly is reduced to just a superficial interaction.


International Standards


In order to fill the gaps, looking at criminal procedure according to the global standards could be helpful. A brief analysis of the United Nations’ Basic Principles on the Role of Lawyers, explains that these principles exist to facilitate fair judicial process. Principle 8 provides for the provision of legal aid ‘without delay, interception or censorship’. Article 30 (3) The United Nations Office on Drugs and Crimes (UNDOC) ‘Model Law on Legal Aid in Criminal Justice Systems’ prevents any law enforcement officer from “doing or saying anything to dissuade the accused from accessing his right to legal aid.’ This principle could aid to prevent cases where the officers deny the accused legal aid. Making the duty to allow the accused to consult a lawyer a statutory duty and penalising police officers for not doing so would also help securing this right.


Conclusion


Providing early access to legal advice help in the accused assuring a fair trial for themselves. If this is denied, they will be rendered susceptible to an unregulated pre-trial detention which would worsen their condition. This right must thus be strengthened more than it being just a limited right. Given that the fundamental rights are placed on a higher pedestal, the CrPC’s effect of reducing the scope of legal counsel dilutes the justice that constitution envisages to guarantee. Arguments against the due process model blame it for making interrogation redundant; the reason being that an accused would never confess in the presence of his lawyer and that the presence of a counsel interrupts and disrupts the interrogation process and the other model is designed in a way that hides the ‘truth’. However, what is important to recognize here is that consultation may also lead to an early confession as the accused might be saved from the process and adversities of interrogation and trial. The presence of a counsel ensures that the State knows its boundaries and acts lawfully throughout the process and while recording statements because it is at the end, the job of the prosecution of that the confession (if made) was made voluntarily. It is important that the legislative reforms take place at the earliest, in the absence of which the outcomes will continue to be problematic.


Disclaimer: This article is an original submission of the Author. NLR does not hold any liability arising out of this article.


1/21