Constitutional Failures of the CrPC: An Analysis of S. 41D and An Accused’s Right to Legal Counsel

By Shivjeet Parthasarathy

The deaths of George Floyd in the US, and Jayaraj and Bennix in India have resulted in significant outcry against the power wielded by the police. In light of these events, the right to have a lawyer becomes much more relevant as it is an important check on police power. The right to legal counsel is an extremely important right that manifests itself from the time one is accused and arrested.A lawyer with an accused during interrogation helps prevent police brutality such as torturous interrogation methods, prevents the accused from making self-incriminating statements during interrogation, informs the accused of their other rights when theyare arrested, helps with the posting of bail, the forming of arguments for the defense at trial, and at a more immediate level-provides an element of support, clarity, and guidance during such daunting times.

The interplay between the Constitution and criminal procedure, as Aparna Chandra and Mrinal Satish have posited, amplifies the tensions between the competing goals of protecting individual liberty and promoting the public good.[1] Merely because a person is accused of crime and arrested, doesn’t mean the police can use any means necessary on the arrested person. The manifestation of this interplay lies in Articles 20, 21, and 22 of the Constitution, however for the purpose of this essay only Article 22 (1) will be looked at.

            Article 22 (1) of the Constitution provides for the constitutional right of an accused to consult with an advocate. In order to make the Criminal Procedure Code (CrPC) consonant with the constitutional frame work in Article 22 (1), Section 41D was inserted into the Act in 2010. It was also an important insertion in light of D.K. Basu v State of West Bengal, providing for arrested persons to meet with their advocate during interrogation. However, despite the insertion of this section, the article argues that the scope of the right as envisaged in the CrPC, is actually limited in nature and falls short in its attempt to harmonize the Act with the Constitution. The article attempts to analyze the Constitutional right as well as the statutory right,particularly focusing on the wording of the two, and looks at the shortfalls of the Code’s provision in Section 41D.Additionally, it looks towards global ideas of criminal justice in an attempt to transmute the existing provision to allow for the comprehensive extension of rights to the accused.

Constitutional Framework and Implementation in the CrPC

The text of Article 22 (1) reads as follows, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”. Upon a bare reading of this text we see that the Constitution provides a safeguard for abuse of authority by giving one the right to consult and be represented by a lawyer, which is one of the Fundamental Rights. The analogous manifestation of the same lies in Section 41D of the CrPC which reads, “When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate, though not throughout the interrogation.”

Upon comparison, some similarities become evident: the right is to be granted upon arrest and that the lawyer will be present with the accused to help navigate the process of interrogation.

At the same time however, there are stark differences that arise from the wording of the two provisions.

There are two differences that arise from the two rights. The first is that the statutory right in the Code puts in a limitation to one’s right to a lawyer, while the Constitutional right does not do so. The second arises from the differences in the choice of words between ‘consult’as the Constitutional text has, and the word ‘meet’ that the statute has. The nature of the two issues is such that they should ideally go hand in hand, and that an analysis of one would not be complete without the other.

The Constitution does not place a limit on the time during which an advocate may be present with an arrested person during interrogation. It would seem that this was done with the understanding that a person in police custody is vulnerable and a self-incriminating confession could be drawn out. This was the basis of the judgement in the case of Nandini Satpathy v PL Dani which held that it is essential to the spirit of Art. 22(1) that an accused be allowed to consult a lawyer during interrogation. Laying down this principle, the Court made two critical observations. Firstly, it acknowledged that a fair trial is a crucial facet to the rule of law, and the ends of justice can only be secured when the accused is allowed a consultation with a lawyer. Secondly, the Court took cognizance of the fact that in the absence of a lawyer, an interrogating officer has the ability to use coercive measures to draw out a self-incriminating confession. A similar view was adopted in the case of Selvi v State of Karnataka, where the Court observed that the use of intrusive interrogation methods such as narco analysis diluted the right to have legal counsel during interrogation. The influence of such methods could lead to incriminating statements being made or incriminating evidence being subsequently discovered which cannot be prevented even with legal consultation of the accused.

These judgements take the view of affirming personal liberty and ensuring one of the facets of a fair trial. With that view in mind however, the limitation that Section 41D places, seems to dilute the progressive efforts of the constitutional right. The fact that a legal counsel cannot meet with the client throughout the duration of the interrogation, raises many pressing questions that makes one wonder how this provision works in tandem with the constitutional right.

The first question to ask would be at what point in time is the right to a lawyer granted once the interrogation has begun? Given that the lawyer cannot be with the accused for the duration of the interrogation, it seems entirely plausible that the interrogating officers may use excessive force and interrogatory techniques against the accused.Subsequently the role of the lawyer becomes redundant.

Another important consideration would be to investigate the scope of the lawyer’s presence. How long does it entitle the accused to retain his lawyer? It could very well mean that the accused’s lawyer only remains with him for a matter of a few minutes and is subsequently dismissed, post which the police maybegin to abuse the accused.

In light of this issue of temporary presence of legal counsel, courts have adopted problematic positionsthat go towards limiting the right to legal counsel. In the case of Senior Intelligence Officer, Director of Revenue Intelligence v Jugal Kishore Samra, it was held that an accused isn’t entitled to have a lawyer present during the interrogation but can “watch proceedings from a distance or from beyond a glass partition but…..not within hearing distance.” This decision goes towards making the presence of the lawyer a feature of tokenism, for the role of the lawyer is to ensure a check on the powers of the police during the course of interrogation and to ensure the accused is not coerced into incriminating himself. However, if barriers are put between the arrestee and his lawyer, the lawyer cannot hear what transpires in the interrogation room,  his presence becomes meaningless. Coercive measures are not solely physical in nature, the use of  psychologically abusive interrogatory techniques are well documented, such as sleep deprivation, isolation, induction of stress, threats to their family etc. These methods leave no physical traces, and when viewed from behind a barrier and without auditory aid, the lawyer is unaware of what truly transpires on the other side of the barrier with the accused. Another problematic view that the court has adopted, is that the failure to have a lawyer with the arrestee during the pre-trial stages, would only vitiate the trial if it is shown that ‘material prejudice’ has been caused to the accused.This was the Court’s holding in Mohd. Ajmal Amir Kasab v State of Maharashtra.  The standard of material prejudice against an accused is an extremely high bar to meet. Without a lawyer’s presence during the interrogation, an arrestee would not be able to prove whether his right against self-incrimination was taken away from him, and whether he was abused in custody, particularly given the psychological interrogatory techniques highlighted above.

The second contentious issue with regard to the difference between the two rights is the language used. Article 20(3) allows the accused to ‘consult’ a legal practitioner when arrested. On the other hand, one is only allowed to ‘meet’ with one’s lawyer as per Section 41D of the Code, and that meeting could also be a short one.

The implication of the word ‘Consult’ is a more formalised, meaningful interaction between the accused and the legal practitioner. However, the word ‘meet’ can have multiple implications, ranging from a formal interaction all the way to a momentary interaction defeating the purpose. When read in conjunction with the durational limitation, it is now implied that ‘meet’ is reduced to a cursory interaction with the lawyer. In doing so, it fails to meet the intended standard of a safeguard, as envisaged in the Constitutional right.

            One cannot holistically analyse shortcomings of the section without considering the implementation of it. In many cases, it has been submitted that the right to have a lawyer present is not even granted to the accused, and the courts have observed these to be violations of Section 41D.

The discussion at this juncture warrants a reference to Satish and Chandra’s framework of the interplay of criminal law with the Constitution: a balancing act between the ‘liberty’ perspective and the ‘public order’ perspective[2]. It is important, and simultaneously disappointing to note, that these decisions, along with the framing of the Code’s provision, have resulted in the systemic chipping away of personal liberty by essentially making the presence of the lawyer meaningless. This tilts the balance towards the ‘public order’ perspective weakening the idea of personal liberty, as envisaged in the Constitution. Thus, we can see the failure in the harmonisation of the CrPC with the Constitutional scheme of Article 22(1).

Attempting to solve the shortcomings of the CrPC

In order to bridge the gaps in the CrPC, it would seem prudent to look at global standards of criminal procedure and policing in order to seek inspiration for reform in the law. This reform would go towards ensuring the liberty of the accused is maintained and not trampled, while harmonising the text of the Code with the Constitutional mandate.

A brief scrutiny of the United Nations’ ‘Basic Principles on The Role of Lawyers,’ would be helpful for the purposes of the Article. The purpose of these principles is to facilitate fair judicial process, and to establish regulatory frameworks to ensure quality of accessing legal services. Principle (8) provides for the provision of legal aid ‘without delay, interception or censorship’. Amending Section 41D to remove the durational limit and a terminology change from ‘meet’ to ‘consult’ would bring it in line with the above principle. It would also go towards fulfilling the vision of Article 22(1).

Another source of inspiration could be the United Nations’ Office on Drugs and Crimes (UNODC) ‘Model Law on Legal Aid in Criminal Justice Systems’. Article 30 (3) of the Model Law prevents any law enforcement officer from “doing or saying anything to dissuade the accused from accessing his right to legal aid”. This principle could be adapted into the framework of the Indian criminal justice system to prevent cases where the officers deny the accused legal aid. Making it a statutory duty to allow the accused access to a lawyer and penalising police officers for denying this, would go towards ensuring fulfilment of the right.

Conclusion

There are glaring discrepancies between what Article 22 (1) seeks to do, and Section 41D.  We see that Section 41D places a temporal limitation on the right to a lawyer, which serves as a loophole for the police to exploit. Secondly, the wording of 41D, when read along with the implications of the temporal limits, would effectively reduce the role of a lawyer during the interrogation process. The right to legal counsel as envisaged in Article 22 (1) is more robust than what is contained in Section 41D, as it does not contemplate any of the restrictions that are present in the statutory scheme. Given that fundamental rights are to be placed on a higher pedestal than other rights, the fact that 41D of the CrPC reduces the scope of legal counsel,  severely limits the visions of justice that are constitutionally guaranteed.

It is imperative that legislative reforms considering the above solutions are enacted at the earliest, for the failure to do so will only continue to lead to problematic outcomes in our already fragmented justice system.

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[1]Mrinal Satish & Aparna Chandra, The Oxford Handbook of The Indian Constitution, 822-23 (Sujit Choudhry ed. et al. 1^sted 2016).

[2]Satish & Chandra, supra note 1, at 822.

[The Author is a third year student at the Jindal Global Law School]

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