Lawyers at the Police Station: Protection of the Accused or Interference in the Investigation Process?

Recently, a controversy¹ erupted in India involving various YouTube personalities including comedians and influencers. Specifically, Ranveer Allahbadia, a popular YouTube personality and podcast host, made allegedly obscene and vulgar comments while appearing on a YouTube show.² The nationwide outrage that followed brought into focus the debates surrounding the extent of free speech in India and the need to regulate digital media platforms like YouTube.³

Ranveer Allahbadia’s comments have resulted in the registration of at least three first information reports (FIRs) against him in different parts of the country for contravening obscenity laws.⁴ When Allahbadia moved the Supreme Court seeking the clubbing of FIRs and protection from arrest,⁵ the Supreme Court made some scathing comments, which have been the subject of criticism⁶ as exceeding the judicial responsibility and duty.

The centrepiece of this article is a seemingly innocuous, yet interesting comment made by the Supreme Court on finding out that a lawyer had accompanied Allahbadia to the police station. The Court asked “Why did the lawyer go? Under which law? Just because you can pay and lawyers will start rendering these services? This is insulting the (lawyers’) dress also.”⁷ Finally, while passing an order granting protection from arrest, the Court imposed a condition that Allahbadia “will not be accompanied by any counsel inside the police station during the course of investigation”.

These oral remarks coupled with this condition, call into question the role of a lawyer in the criminal justice system, especially at the stage of pre-arrest investigation. Is there a legal or ethical duty for a lawyer to not go to the police station with or on behalf of his client? We attempt to answer this question by putting into perspective the comments by the Supreme Court and the rights of a person accused of an offence to consult and seek the assistance of a lawyer at the stage of the pre-arrest investigation, particularly while interacting or dealing with the police or any other investigating agency.

Constitutional and statutory safeguards

In India, there is a constitutional recognition of the importance of the role of a lawyer in the criminal justice system. Article 22 of the Indian Constitution provides the fundamental right that no arrested person shall “be denied the right to consult and to be defended by, a legal practitioner of his choice”.⁸ The same right has also been codified in the Indian criminal procedural law in Section 38 of the Nagarik Suraksha Sanhita, 2023 (BNSS)⁹ [previously Section 41-D of the Criminal Procedure Code, 1973 (CrPC)¹⁰] which provides that any person arrested and interrogated by the police, “shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation”. Additionally, Section 340 of the BNSS (previously Section 303 CrPC) also reiterates the right of a person accused of an offence before a criminal court, or against whom proceedings are instituted under the BNSS, has a right to be “defended by an advocate of his choice”.¹¹

From the above, it is evident that the Indian criminal justice system recognises the importance of having legal representation to ensure a fair investigation and trial for an accused. However, the question remains as to what stage the right of an individual to consult and meet a lawyer kicks in. Admittedly, a bare reading of these provisions i.e. Article 22 of the Constitution as well as Section 38 of the BNSS, come into play in case of an “arrested” person being interrogated in custody. On the other hand, Section 340 of the BNSS deals with a stage where a person is already before a criminal court. As such, there does not seem to be any statutory recognition of the role of a lawyer for a person facing legal proceedings who has not yet been arrested by the police.

Judicial precedents

In Nandini Satpathy v. P.L. Dani¹², a three-Judge Bench of the Supreme Court while interpreting the scope of Article 20(3) of the Indian Constitution (right against self-incrimination) held that this right is not only available during trial before the courts but also at the stage of the investigation. The Court observed that this right against compelled testimony may be violated not just by obtaining evidence by violence or threat of violence but also “by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods”. The Court was wary of the police applying these pressure tactics in the “antagonistic ante-chambers of a police station”. The Court viewed the presence of a lawyer at the police station as a form of vital safeguard of the said right to somewhat balance an otherwise coercive atmosphere of a police station.

The judicial recognition of permitting a lawyer’s presence at the police station during the investigation or interrogation of a person accused of an offence in Nandini Satpathy case¹³ has been significantly watered down by a subsequent three-Judge Bench in Poolpandi v. CCE¹⁴. Referring to an earlier five-Judge Bench in Ramesh Chandra Mehta v. State of W.B.¹⁵, the Supreme Court in Poolpandi case¹⁶ distinguished Nandini Satpathy case¹⁷ on the basis that in cases arising out of special Acts such as the Customs Act, 1962¹⁸ or Foreign Exchange Regulation Act, 1973¹⁹, the person claiming right to access to the lawyer could not be considered an “accused” within the meaning of Article 20(3)²⁰ of the Indian Constitution and as such officers would not qualify as “police officers”. Accordingly, a differentiation was made in Poolpandi case²¹ between an accused in a criminal case and a person called for interrogation in the abovereferred special Acts.

While Nandini Satpathy case²² was relied upon in State (NCT of Delhi) v. Navjot Sandhu²³, subsequently a two-Judge Bench of the Supreme Court in Revenue Intelligence Directorate v. Jugal Kishore Samra²⁴, a case arising out of the Narcotic Drugs and Psychotropic Substances Act, 1985²⁵, relying on Poolpandi case²⁶ severely curtailed the scope of this right by holding that there was no distinction between a “regular” criminal case and cases under the Customs Act, 1962, Foreign Exchange Regulation Act, 1973 (FERA), etc. which provides for penal consequences. While refraining from explicitly saying so, the Court in effect held that Nandini Satpathy case²⁷ was not good law.

In a later decision in Mohd. Ajmal Amir Kasab v. State of Maharashtra²⁸, another two-Judge Bench of the Supreme Court “clarified” that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during interrogation. The Court went on to hold that “in our system of law, the role of a lawyer is mainly focused on court proceedings” and further observed that there is no decision in which the Court has followed the core of the Nandini Satpathy case²⁹ guidelines.

From the above, it can be deduced that the original expansive interpretation of Article 20(3) read with Article 22(1) of the Indian Constitution in Nandini Satpathy case³⁰ has been whittled down substantially by the Supreme Court over time. Though recent orders passed by constitutional courts show that a lawyer’s presence has been totally barred during pre-arrest investigation, it is seldom permitted, especially in cases where it has been demonstrated that there is apprehension of foul play or third-degree or forced confession. Over the last few years particularly, where facts have warranted such intervention and oversight, courts have permitted a lawyer to be present during interrogation though not throughout interrogation at a visible but not audible distance.³¹

It is the respectful submission of the authors that the curtailment of the right as originally envisaged in Nandini Satpathy case³² is due to an incorrect interpretation of Poolpandi case³³ in Samra case³⁴. Poolpandi case³⁵ merely distinguished Nandini Satpathy case³⁶ in view of the statutes involved in each case and never disagreed with the observations of J. Krishna Iyer in Nandini Satpathy case³⁷. Secondly, if the two-Judge Bench in Samra case³⁸ felt there was a conflict between Nandini Satpathy case³⁹ and Poolpandi case⁴⁰ on the issue, it ought to have referred the matter for constitution of a larger Bench. Perhaps these propositions will be tested in a case in the future.

Practical application

While one can justify the Supreme Court’s comments and order in Allahbadia’s case taking exception to the presence of a lawyer at a police station in view of the aforementioned judgments, such a position, in practical terms, further skews the scale in favour of the investigating agencies by excluding the involvement of a lawyer, even from accompanying an accused person to the police station.

It cannot be that the protection of Article 20(3) right against self-incrimination is unavailable to an accused person if they are not arrested. In cases where a person is clearly an accused, as in the case of Allahbadia, with three FIRs against him, the denial of consultation with counsel even if it is at the police station is at odds with the intent and substance of Article 20(3).

There is no gainsaying that lawyers often function as an important bridge for their clients with the investigating agencies to gather information necessary for the effective representation of accused persons. Lawyers are required to work with other functionaries of the criminal justice system including the police. The question is not whether a lawyer should be present at the time of interrogation, it is merely if a lawyer can accompany an accused person to the police station to counter, any possibility of abuse of the Criminal Procedure Code.

The Supreme Court’s comments taking exception to the lawyer accompanying an accused to the police station overlook an important aspect of the criminal justice system and fair trials. It turns a blind eye to the fact that police stations are places that are inherently coercive in nature for a layperson who does not deal with the police regularly. The police are central actors of the criminal justice system with an abundance of coercive authority at their disposal. The presence of a lawyer allows an accused person to have some basis to engage with the police legally as well as provide comfort against any extra-legal processes and pressures, that are very commonly employed by the investigating agencies in India.

As set out in this piece, there is enough constitutional and statutory recognition of the role of a lawyer at a post-arrest stage. There is no reason that an arbitrary distinction be drawn at a pre-arrest investigation stage so as to exclude the active involvement of the lawyers at that stage.

Conclusion

The objective behind any criminal investigation, evidence gathering and trial is to ascertain the truth or the version closest to it regarding the underlying criminal act.⁴¹ Accordingly, there are two competing rights at play, the rights of an accused person to have a fair trial versus the right of the investigating agency to conduct a thorough investigation to unearth the truth. By completely ruling out a lawyer’s presence at the police station or coordination on behalf of the accused, the balance becomes extremely skewed in favour of the expansive investigative powers. A more balanced and flexible approach — one that considers both the constitutional protections for the accused and the operational needs of law enforcement must be embraced to ensure justice is truly served. As we continue to grapple with these issues, the legal system must evolve to envision the role of lawyers in a manner that strikes a fairer, more effective balance between these competing interests.