Supreme Court Issues Notice on Writ Petition Regarding Presence of Lawyer During Interrogation

The Supreme Court on Wednesday issued notice on a writ petition seeking directions to allow the presence of an individual's lawyer during the interrogation by police or other investigating agencies.

The bench of CJI BR Gavai and Justice K Vinod Chandran heard the petition filed by lawyer Shaffi Mather. At the outset, the bench inquired whether the petition refers to any incidents of duress faced by individuals called for questioning. Justice Chandran inquired, "Are there instances of need for counsel in the petition?"

Senior Advocate Maneka Guruswamy, appearing for the petitioner, explained that there is a need under public interest to have a lawyer while being questioned, to tell the person whether that question is incriminating or not.

The CJI insisted that certain instances be cited for the Court's reference. Guruswamy then mentioned the 'India : Annual Report on Torture 2019' published by National Campaign Against Torture, which details the top 15 trends of torture and impunity in India during 2019.

Grounds of the Plea

The plea stresses that the selective permission to access a counsel by a detainee is in dire violation of the fundamental rights under Articles 20(3), 21, 22 and often risks the chances of custodial violence and death.

"This pattern of coercive, piecemeal access to counsel not only contravenes the right to counsel under Article 22, and the right against self-incrimination under Article 20(3), but also violates the due-process, fair investigation, and fair-trial guarantees inherent in Articles 21 and 22, thereby perpetuating custodial abuses by investigating agencies and undermining investigative integrity.

This practice of disallowing the presence of counsel during enquiry, questioning or interrogation, or only allowing a counsel to be with visible but not audible range of the questioning or interrogation, prevalent across statutes like the Prevention of Money Laundering Act, Narcotic Drugs and Psychotropic Substances Act, amongst others, perpetuates coercive questioning/interrogation environments, and thereby violates the constitutional safeguards against self-incrimination and due process."

Reliefs Sought by the Petitioner

The main reliefs sought by the petitioner are:

a. Reading the right of the presence of the legal counsel of an individual being questioned/interrogated by the State/investigation agency/investigating officer to be a non-discretionary, non-discriminatory and unalienable right;

b. Reading the relevant statutory provisions viz. Section 41D of the CrPC and Section 38 of the BNSS along with the applicable provisions under special laws, such as Section 50 of the PMLA, to include the above interpretation;

c. Framing guidelines for the grant of access to one's legal counsel during an enquiry/interrogation by the State, police or other investigation agencies or investigating officers in a manner that furthers the interrogatee's fundamental rights under Articles 20(3), 21, and 22(1) of the Indian Constitution as envisaged and intended by the framers of our constitution;

d. Framing guidelines for mandatorily granting notice of rights to silence and right to counsel to any individual under enquiry or being questioned or interrogated by the State or investigation agencies or investigating officers;

e. Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.

Case Details: SHAFFI MATHER v. THE UNION OF INDIA | W.P.(Crl.) No. 401/2025