Recognizes the arrested person’s right to consult a lawyer during police interrogation.
A safeguard ensuring access to legal counsel during custodial questioning to prevent coercion.
Introduction
Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) guarantees that a person arrested has the right to meet an advocate of his choice during interrogation, though not throughout the entire interrogation process continuously. This provision strengthens procedural fairness and protects individuals against coercive custodial practices during investigation.
It operationalizes constitutional protections under Article 22(1) and Article 21 of the Constitution of India, which recognize the right to consult and be defended by a legal practitioner of one’s choice.
Objective of the Provision
The objectives of Section 38 BNSS are
- to ensure legal assistance during custodial interrogation
- to prevent coercion, intimidation, or involuntary statements
- to strengthen fair investigation procedures
- to protect the constitutional rights of arrested persons
The provision promotes transparency and accountability during police questioning.
Meaning / Concept
Right to Consult an Advocate During Interrogation
Section 38 recognizes that an arrested person is entitled to access legal consultation even at the investigation stage, not merely during trial proceedings.
However, the advocate’s presence is not continuous throughout interrogation; rather, the arrested person must be allowed reasonable opportunity to meet the advocate during questioning.
Protection Against Custodial Abuse
The provision acts as a preventive safeguard ensuring that interrogation remains lawful and voluntary, thereby reducing risks of forced confessions or custodial violence.
It reinforces the principle that investigation must respect constitutional liberty.
Detailed Explanation of the Section
Section 38 BNSS provides that
- a person who has been arrested has the right to meet an advocate of his choice
- such meeting may occur during interrogation
- the advocate’s presence is not required throughout the entire interrogation
- police authorities must not deny reasonable access to legal consultation
Key features include
- statutory recognition of access to legal counsel during investigation
- protection against involuntary statements
- limitation that the advocate’s presence is not continuous
- reinforcement of constitutional safeguards at the arrest stage
The provision ensures fairness without obstructing investigative efficiency.
Procedure or Legal Framework
The procedural framework under Section 38 BNSS includes
- arrest of the individual by police authorities
- request by arrested person to meet an advocate
- reasonable opportunity provided by police to consult advocate
- consultation permitted during interrogation intervals
- continuation of investigation in accordance with law
Denial of this right may affect legality of custodial procedure.
Judicial Interpretation
The right recognized under Section 38 BNSS is rooted in established constitutional jurisprudence.
In Nandini Satpathy v. P.L. Dani, the Supreme Court held that an accused has the right to consult a lawyer during police questioning to protect against self-incrimination.
In D.K. Basu v. State of West Bengal, the Court emphasized that access to legal counsel is a critical safeguard against custodial abuse.
In Joginder Kumar v. State of Uttar Pradesh, the Court recognized the importance of procedural safeguards immediately after arrest.
In Selvi v. State of Karnataka, the Court reinforced protections against compelled self-incrimination during investigation.
These decisions form the constitutional foundation of Section 38 BNSS.
Importance of the Provision
Section 38 BNSS is important because
- it protects fairness in custodial interrogation
- it prevents coercive investigative practices
- it strengthens right to legal representation at early stages
- it reinforces constitutional guarantees against self-incrimination
It serves as a vital procedural safeguard within arrest-related protections under BNSS.
Connection with Other Sections
Section 38 operates alongside related arrest safeguards under BNSS
- Section 35 BNSS – When police may arrest without warrant
- Section 36 BNSS – Procedure of arrest and duties of officer making arrest
- Section 37 BNSS – Designated police officer
- Section 50 BNSS – Person arrested to be informed of grounds of arrest and of right to bail
Corresponding Provision under Old Law
Section 38 BNSS corresponds to Section 41D of the Code of Criminal Procedure, 1973.
Illustrative Example
A person arrested in connection with an economic offence requests to meet his advocate during police interrogation. The investigating officer permits consultation with the advocate at reasonable intervals during questioning. This complies with Section 38 BNSS and ensures procedural fairness during investigation.
Conclusion
Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 recognizes the right of an arrested person to meet an advocate of his choice during interrogation as an essential safeguard against coercive investigative practices. By ensuring access to legal consultation at the investigation stage, the provision strengthens constitutional protections and promotes fairness in criminal procedure.
