Interrogation Stage and the Right to Legal Counsel: A Critical Reflection of Section 38 of the Bharatiya Nagarik Suraksha Sanhita

Having a lawyer during interrogation is essential for a fair trial and to save individuals from third-degree torture by the police. Section 38 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) says you have the right to consult an advocate, a principle enshrined in Article 22(1) of the Indian Constitution. However, its application and interpretation have raised many legal questions, especially during police interrogation of an accused. This paper examines the scope of Section 38 in various legal scenarios including Section 35(3) of the BNSS notices and Section 180 of BNSS and special laws. The analysis shows a complex situation where the right to a lawyer often depends on formal charges and arrests and hence there are concerns about violation of fundamental rights before an arrest is made. Although judicial decisions confirm the right to a lawyer during interrogations, they also impose many restrictions on this right. This shows the need to clarify and expand the scope of Section 38 and formalize the process of getting an advocate during the pre-arrest stage through legal aid. The lack of process leaves room for abuse of power by the police even after the recent amendments by the BNSS. The presence of legal counsel is crucial for maintaining the integrity of the truth-finding process and shielding individuals from potential police abuses. Although Section 38 represents progress in protecting interrogation rights, its true effectiveness hinges on consistent implementation and proactive measures to tackle existing challenges, thereby enhancing transparency, accountability, and the protection of human rights within the criminal justice system.