Punjab & Haryana HC Issues Notice On PlL Against Section 38 BNSS Preventing Arrested Person From Meeting Lawyer Throughout Interrogation

The Punjab & Haryana High Court on Thursday (January 23) issued notice on a plea challenging Section 38 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which does not entitle an arrested person to meet with his lawyer "throughout" the interrogation.

Section 38 of the BNSS states, "When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation". 

A division bench of Chief Justice Sheel Nagu and Justice Sumeet Goel issued notice on the plea and sought reply from Union as well as the Punjab & Haryana Governments. 

The petitioner, Harlove Singh Rajput, a lawyer by profession, in the PIL states that Section 41-D of Cr.P.C. as well as Section 38 of the BNSS, counteract Article 20(3) of the Constitution which provides protection against self incrimination.

"The presence of a lawyer throughout the interrogation would highly safeguard and protect the citizens/arrestees from the abuse, and third degree torture by the Investigating/Interrogating Officials, in the bid to induce/coerce self incriminatory statements," the plea stated.

It added further that the bar that Section 41(D) of Cr.P.C. and Section 38 of the BNSS place on the consultation of a lawyer by the arrestee during the course of interrogation leaves unquestionable prospects of contravention of  Article 20(3) since the limitation of the scope envisaged under Section 41(D) leads in the usage of unrestrained measures, physical and psychological, by police officials which robs the arrestee of his right to remain silent and give self- incriminating confessions.

Reliance was placed on Apex Court's decision in Nandini Satpathy vs Dani (P.L.) And Anr. to underscore that Lawyer's presence is a constitutional claim in some circumstances in our country also and in the context of Article 20(3) is an assurance of awareness and observance of the right to silence.

The matter is listed for March 4, for further consideration.

Case Title: Harlove Singh Rajput v. UOI & Ors.

Advocates for the petitioner Gursher Singh Dhillon , Kudrit Kaur Sara Adv with Harlove Singh Rajput petitioner in person.