Section 38 of BNSS: A Complete Guide to Your Right to Meet a Lawyer During Police Interrogation
Imagine you are sitting in a police station. The light
Section 38 of BNSS: A Complete Guide to Your Right to Meet a Lawyer During Police Interrogation
Imagine you are sitting in a police station. The lights are bright. The questions are sharp. You are alone, confused, and scared. You do not know what to say. You do not know your rights. This is the moment when having a lawyer by your side can change everything. This is exactly why Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) exists. It is a shield. It is a voice. It is your right.
In this detailed article, we will walk you through everything you need to know about Section 38 of BNSS. We will explain the exact words of the law, what they mean in simple language, why this section matters, how it protects you, and what recent courts have said about it. We will also look at real case laws from 2025 and 2026 that show how this law is being used today. Whether you are a law student, a legal professional, or a common citizen, this guide will help you understand your rights in the simplest way possible.
What is Section 38 of BNSS? The Exact Words of the Law
Let us start with the most important part. The exact text of Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 says:
"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."
This is a short sentence. But it carries huge meaning. Let us break it down word by word so that anyone can understand it.
- "When any person is arrested and interrogated by the police": This means the law applies only after you are arrested. It does not apply before arrest. If the police are just questioning you as a witness or suspect without arresting you, this section does not give you the right to a lawyer at that stage.
- "he shall be entitled to meet an advocate of his choice": This is the heart of the law. It says you have the RIGHT to meet a lawyer. Not just any lawyer, but a lawyer YOU choose. The police cannot force you to talk to their lawyer or a government lawyer unless you want to.
- "during interrogation": The meeting can happen while the police are questioning you. It is not limited to before or after. It happens DURING the process.
- "though not throughout interrogation": This is the tricky part. It means the lawyer cannot sit with you for the ENTIRE interrogation. The police can question you, then allow you to meet your lawyer, then question you again. The lawyer's presence is not continuous.
This section is the new version of Section 41D of the old Code of Criminal Procedure, 1973 (CrPC). The words are almost the same. The only change is the section number. But the debate around it has grown much bigger in recent years.
Why Was Section 38 Created? The Real Purpose Behind the Law
The makers of the BNSS did not create this section just to fill pages in a law book. They created it because of a painful history. For decades, people in India have been arrested, kept in police stations, and questioned for hours without any legal help. Many did not even know they had rights. Some were forced to sign statements they did not understand. Others faced pressure, threats, or worse.
Section 38 was born to stop this. Its main goals are:
- To protect you from coercion: When a lawyer is present, even for a short time, the police know they cannot use unfair pressure. The lawyer can advise you, calm you down, and make sure you do not say anything that can be used against you illegally.
- To ensure fair investigation: A fair investigation is not just about catching the criminal. It is also about protecting the innocent. When a lawyer is involved, the chances of false confessions or forced statements go down. The truth comes out more clearly.
- To give life to the Constitution: Article 22(1) of the Indian Constitution says no arrested person shall be denied the right to consult a lawyer. Article 21 promises the right to life and personal liberty. Section 38 turns these constitutional promises into real, practical rules that the police must follow.
- To build trust in the system: When people know they have a lawyer, they trust the police process more. They are more willing to cooperate. The system becomes more transparent.
In simple words, Section 38 is the bridge between the Constitution and the police station. It takes the beautiful words of the Constitution and places them inside the dusty rooms where interrogations happen.
How Does Section 38 Work in Real Life? The Step-by-Step Process
Let us walk through what actually happens when Section 38 is followed properly. This will help you understand the procedure in a practical way.
- Step 1: Arrest: The police arrest you based on a complaint, information, or suspicion. They must follow the rules of Section 35 of BNSS, which says they can only arrest if it is truly necessary.
- Step 2: Information of Rights: Under Section 47 of BNSS, the police must tell you WHY you are arrested. They must also inform you of your right to bail if the offence is bailable. Under Section 48, they must inform your family or a friend about your arrest.
- Step 3: Request for a Lawyer: Once you are at the police station and interrogation begins, you can ask to meet your lawyer. This is where Section 38 comes in. You do not need to wait for the court. You can ask immediately.
- Step 4: Police Allow the Meeting: The police must give you a REASONABLE opportunity to meet your lawyer. They cannot deny it completely. They cannot delay it for days. The meeting should happen during the interrogation, at reasonable intervals.
- Step 5: Lawyer Advises You: Your lawyer will advise you on your rights. They will tell you that you have the right to remain silent under Article 20(3) of the Constitution. They will check if the police are following the law. They will note if there is any sign of coercion or torture.
- Step 6: Interrogation Continues: After the meeting, the police can continue questioning you. But now you are better informed. You know what to say and what not to say. You know your protections.
- Step 7: Production Before Magistrate: Within 24 hours of arrest, the police must produce you before a Magistrate under Section 57 and 58 of BNSS. At this stage, your lawyer can argue for bail, oppose police custody, and protect your liberty.
This is the ideal process. But in reality, things do not always go so smoothly. That is why courts have had to step in again and again.
The Big Debate: Why "Not Throughout Interrogation" is Controversial
The most debated part of Section 38 is the phrase "though not throughout interrogation." This small phrase has created a huge storm in the legal world. Let us understand why.
On one side, the government and police argue that continuous lawyer presence would make interrogation impossible. They say criminals would hide behind their lawyers. They say investigations would slow down. They say the lawyer would coach the accused on what to say.
On the other side, human rights activists, lawyers, and many judges argue that this phrase weakens the right. They say:
- If the lawyer is not present throughout, how can they stop torture or coercion in real time?
- If the police question you for 10 hours and allow a 10-minute lawyer meeting, is that really a meaningful right?
- The phrase gives too much power to the police to decide WHEN and FOR HOW LONG you can meet your lawyer.
- In many countries, the right to counsel during interrogation is much stronger.
This debate reached the courts. In January 2025, a Public Interest Litigation (PIL) was filed in the Punjab and Haryana High Court challenging Section 38. The petitioners argued that the phrase "not throughout interrogation" violates Article 20(3) of the Constitution, which protects against self-incrimination. They said that without continuous lawyer presence, the accused is vulnerable to psychological pressure and cannot truly exercise their right to remain silent. The High Court issued notice on this PIL, showing that the debate is alive and serious.
This case is important because it asks a fundamental question: Is Section 38 strong enough to truly protect the accused, or does it create an illusion of protection while leaving the door open for abuse?
Section 38 and the Constitution: The Invisible Thread
Section 38 does not stand alone. It is deeply connected to the Constitution of India. Let us look at these connections.
- Article 22(1): This article says that no person who is arrested shall be denied the right to consult and be defended by a legal practitioner of their choice. Section 38 gives practical shape to this right. It says WHEN and HOW this right can be used during interrogation.
- Article 21: This article promises the right to life and personal liberty. The Supreme Court has interpreted this to include the right to a fair procedure. A fair procedure includes the right to legal assistance at all critical stages, including interrogation.
- Article 20(3): This article protects against self-incrimination. It says no person accused of an offence shall be compelled to be a witness against himself. When a lawyer is present during interrogation, they can ensure that the police do not use threats, promises, or pressure to force you to speak. This makes Section 38 a tool to protect Article 20(3).
- Article 39A: This article directs the State to provide free legal aid to ensure that justice is not denied to any citizen because of economic disability. This means that if you cannot afford a lawyer, the State must provide one. This is crucial because Section 38 is meaningless if only rich people can afford lawyers.
The Supreme Court has said many times that these constitutional rights are not just paper promises. They are living, breathing protections that must be enforced in every police station, every day.
Landmark Supreme Court Cases That Shaped Section 38
Before BNSS came into force on 1 July 2024, the Supreme Court of India had already built a strong foundation of cases that protect the right to legal counsel during interrogation. These cases are still relevant because they interpret the Constitution, and the Constitution never changes. Let us look at the most important ones.
Nandini Satpathy v. P.L. Dani (1978)
This is the mother of all cases on this topic. Nandini Satpathy, a former Chief Minister of Odisha, was called for questioning by the police. She refused to answer certain questions and claimed her right against self-incrimination under Article 20(3). The Supreme Court held that:
- The right to consult a lawyer during police questioning is essential to protect against self-incrimination.
- The police cannot compel a person to answer questions that may expose them to criminal charges.
- The presence of a lawyer ensures that the accused understands their rights and does not speak under pressure.
This case laid the foundation for what later became Section 41D of CrPC and now Section 38 of BNSS.
D.K. Basu v. State of West Bengal (1997)
This case is a landmark in the history of custodial rights. The Supreme Court laid down 11 specific guidelines that the police must follow during arrest and detention. These include:
- Preparing a memo of arrest attested by a witness.
- Informing a friend or relative about the arrest.
- Conducting a medical examination.
- Producing the arrested person before a Magistrate within 24 hours.
- Most importantly, the Court emphasized that access to legal counsel is a critical safeguard against custodial abuse and torture.
The Court warned that non-compliance with these guidelines would invite departmental action and contempt of court. This case elevated custodial safeguards from administrative suggestions to enforceable constitutional duties.
Joginder Kumar v. State of Uttar Pradesh (1994)
In this case, the Supreme Court dealt with the evil of arbitrary arrests. Joginder Kumar, an advocate, was detained by the police for several days without being produced before a Magistrate. The Court held that:
- Arrest is not a routine procedure. It is a serious intrusion into personal liberty.
- The police must have JUSTIFIABLE reasons to arrest.
- The arrested person must be informed of their rights.
- The police must notify the family or friends of the arrested person.
- The Court emphasized that the right to legal representation begins immediately after arrest and continues through interrogation.
This case reinforced the idea that arrest is not the beginning of punishment. It is the beginning of a legal process that must be fair from the very first minute.
Selvi v. State of Karnataka (2010)
This case dealt with scientific tests like narco-analysis, polygraph, and brain mapping. The Supreme Court held that:
- No person can be forced to undergo these tests without their consent.
- Forced tests violate Article 20(3) against self-incrimination.
- The right to remain silent is absolute during investigation.
- The presence of a lawyer is essential to ensure that the accused gives informed consent or refusal.
This case showed that the right to counsel is not just about answering police questions. It is also about protecting the accused from invasive and potentially abusive investigative techniques.
Arnesh Kumar v. State of Bihar (2014)
This case is a modern classic. The Supreme Court observed that arrest is the most serious infringement of personal liberty. The Court directed that:
- For offences punishable up to 7 years, the police must issue a notice under Section 41A CrPC (now Section 35(3) BNSS) before arrest.
- Arrest should only happen if the person fails to respond to the notice.
- The police must record written reasons for arrest.
- The Magistrate must verify these reasons before granting remand.
This case is directly relevant to Section 38 because it shows that the Supreme Court wants the police to follow a strict, step-by-step process. The right to meet a lawyer is part of this process.
Satender Kumar Antil v. CBI (2021-2025)
This is a series of orders where the Supreme Court gave detailed directions on bail, arrest, and police procedure. The Court emphasized that:
- The guidelines of Arnesh Kumar must be followed strictly.
- Non-compliance with arrest procedures entitles the accused to bail.
- The police cannot use WhatsApp or electronic means to serve notices under Section 41A CrPC (now Section 35(3) BNSS).
- The investigating agencies must respect the rights of the accused at every stage.
These cases form the constitutional backbone of Section 38. They show that the right to meet a lawyer during interrogation is not a new idea invented by BNSS. It is a deeply rooted constitutional principle that BNSS has simply codified.
Recent Case Laws from 2025 and 2026: How Courts Are Using Section 38 Today
Now let us look at what has happened AFTER BNSS came into force. These recent cases show how Section 38 is being interpreted and applied in real courts today.
Punjab and Haryana High Court PIL Challenge (January 2025)
In January 2025, a PIL was filed in the Punjab and Haryana High Court challenging the constitutional validity of Section 38 BNSS. The petitioners argued that:
- The phrase "though not throughout interrogation" violates Article 20(3) of the Constitution.
- It allows the police to interrogate the accused for long periods without lawyer presence, making the right meaningless.
- It creates a risk of custodial torture and forced confessions.
- The right to counsel should be continuous, not intermittent.
The High Court issued notice on this petition, which means the case is being actively considered. This is one of the most direct legal challenges to Section 38 and could lead to important clarifications in the future.
Bombay High Court: Deepfake Arrest Case (2025)
In a case decided by the Bombay High Court in 2025, the petitioner was arrested in connection with a deepfake video case. The Court examined whether the arrest complied with BNSS provisions, including the right to legal counsel. The petitioner argued that:
- The arrest was illegal because no prior notice was issued under Section 35(3) BNSS.
- The grounds of arrest were vague and generic, violating Section 47 BNSS.
- The Magistrate remanded him to police custody in a mechanical manner without verifying compliance with constitutional safeguards.
- The right to meet a lawyer under Section 38 was not meaningfully implemented because the overall arrest process was flawed.
The Court examined these arguments in detail, showing that Section 38 cannot be read in isolation. It must be read together with other safeguards like Sections 35, 47, and 48. If the arrest itself is illegal, the right under Section 38 becomes a hollow promise.
Rajasthan High Court: Abdul Karim v. State of Rajasthan (February 2026)
In this case, decided on 19 February 2026, the Rajasthan High Court dealt with a revision petition against an order framing charges. While the main issue was about procedural infirmities in the charge-framing process, the Court made important observations about the BNSS scheme. The Court held that:
- The trial court must pass orders strictly in accordance with the statutory scheme of the BNSS.
- The settled legal position under the old CrPC continues to guide the interpretation of BNSS.
- The accused must be given adequate opportunity to defend themselves at every stage.
- The Magistrate must apply judicial mind and cannot act mechanically.
This case reinforces the idea that BNSS provisions, including Section 38, must be interpreted in a way that protects the accused's rights, not just as empty formalities.
Supreme Court: Suo Motu Writ Petition on Summons to Advocates (October 2025)
In a significant judgment dated 31 October 2025, the Supreme Court dealt with a case where an Advocate was summoned by the police to reveal details about his client. The Court held that:
- The investigating agency CANNOT directly summon a lawyer appearing in a case to elicit details about the case.
- This would breach the advocate-client privilege under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
- It would also violate the fundamental rights of the accused under Article 21 and the right to effective representation.
- Any such summons must be approved by a superior officer not below the rank of Superintendent of Police, with written reasons.
While this case was about summons to lawyers rather than Section 38 directly, it shows the Supreme Court's strong protective stance towards the rights of the accused and the sanctity of legal representation. The spirit of this judgment supports a broad and meaningful interpretation of Section 38.
Punjab and Haryana High Court: Sunil v. State of Haryana (December 2025)
In this case, decided on 3 December 2025, the Punjab and Haryana High Court dealt with an appeal against the dismissal of a bail application. The appellant was re-arrested after being released on bail, when additional charges under the SC/ST Act were added. The Court examined whether:
- The re-arrest complied with Section 35 of BNSS.
- The police had issued the required notice under Section 35(3) before re-arrest.
- The investigating officer had recorded written reasons for the arrest.
- The Magistrate had verified compliance before granting remand.
The Court found that the police had NOT complied with the mandatory requirements of Section 35 and the directions of the Supreme Court in Arnesh Kumar and Satender Kumar Antil. The Court held that the Investigating Officer and the Additional Sessions Judge had ignored the law and rendered themselves liable for contempt and departmental action. While the Court refrained from initiating contempt proceedings, it sent a strong message about the need for strict compliance with BNSS safeguards.
This case is important because it shows that Section 38 operates within a larger framework of arrest safeguards. If the police violate Section 35 (arrest without notice), Section 47 (failure to inform grounds), or Section 48 (failure to inform family), the entire arrest process becomes suspect, and the right under Section 38 loses its meaning.
Section 38 in Comparison with Other Countries
To understand whether Section 38 is strong or weak, it helps to look at how other countries handle the right to counsel during interrogation.
- United States: Under the famous Miranda v. Arizona (1966) ruling, the police must inform the accused of their right to an attorney BEFORE questioning. If the accused requests a lawyer, ALL questioning must stop until the lawyer is present. The lawyer can be present throughout the interrogation.
- United Kingdom: Under the Police and Criminal Evidence Act 1984 (PACE), the accused has the right to free and independent legal advice at any time. The lawyer can be present during police interviews, and the interviews must be recorded.
- European Union: The European Convention on Human Rights and EU directives guarantee the right to access a lawyer from the earliest stages of police custody, including during interrogation. Many EU countries allow the lawyer to be present throughout.
- Canada: The Canadian Charter of Rights and Freedoms guarantees the right to retain and instruct counsel without delay. The police must inform the accused of this right immediately upon arrest.
Compared to these systems, Section 38 of BNSS is more limited. The phrase "though not throughout interrogation" places India in a middle position. It is better than having no right at all, but it is not as strong as the Miranda rule or the European standards. This is why the PIL in the Punjab and Haryana High Court is so important. It asks India to move closer to global best practices.
Practical Tips: What to Do If You Are Arrested
If you or someone you know is arrested, here are the practical steps to use Section 38 effectively:
- Stay calm: Panic makes you say things you regret. Take deep breaths.
- Ask for your lawyer immediately: As soon as you are taken to the police station, say clearly: "I want to meet my lawyer." Do not wait for the police to offer.
- Do not sign anything without your lawyer: The police may ask you to sign statements or confessions. Refuse politely but firmly until your lawyer arrives.
- Use your right to remain silent: Under Article 20(3), you cannot be forced to answer. Tell the police: "I choose to remain silent until I consult my lawyer."
- Inform your family: Under Section 48 of BNSS, the police must inform your relative or friend. Give them the name and contact of someone you trust.
- Check for arrest memo: Under Section 36 of BNSS, the police must prepare a memo of arrest attested by a witness. Ask for a copy.
- Note the time: The police must produce you before a Magistrate within 24 hours under Section 58. If they delay, your lawyer can challenge the detention.
- Request free legal aid: If you cannot afford a lawyer, ask for free legal aid under the Legal Services Authorities Act. This is your right under Article 39A.
- Document everything: If you see any signs of coercion, torture, or illegal pressure, tell your lawyer immediately. They can file a complaint or seek judicial intervention.
- Do not resist physically: Even if the arrest is illegal, do not use violence. Fight it in court, not in the police station.
The Role of Legal Aid Lawyers and NGOs
Section 38 is only effective if lawyers are actually available. In India, many arrested persons are poor, illiterate, or from marginalized communities. They do not know any lawyers. They cannot afford private counsel. This is where legal aid lawyers and NGOs play a crucial role.
- District Legal Services Authorities (DLSA): Every district has a DLSA that provides free legal aid. They can arrange a lawyer for you within hours of arrest.
- 24x7 Legal Aid Helplines: Many states have helplines that arrested persons or their families can call to request legal assistance.
- NGOs and Human Rights Organizations: Organizations like the Centre for Civil Society, Human Rights Law Network, and Amnesty International India monitor police stations, provide legal aid, and file PILs when rights are violated.
- Police Station Legal Aid Clinics: Some states have started placing legal aid lawyers in or near police stations to ensure immediate access.
The Supreme Court has emphasized that free legal aid is not charity. It is a constitutional mandate. If the State fails to provide a lawyer to an indigent accused, the entire trial can be vitiated.
Criticisms and Suggestions for Improvement
No law is perfect. Section 38 has received several criticisms from legal scholars, activists, and judges. Here are the main ones:
- The "not throughout" phrase is too vague: It gives unlimited discretion to the police. They can allow a 5-minute meeting after 8 hours of questioning. This is not meaningful access.
- No guidance on frequency or duration: The law does not say HOW MANY TIMES you can meet your lawyer or for HOW LONG. This creates inconsistency.
- No remedy for denial: If the police deny you access to a lawyer, what can you do? The law does not specify a clear remedy. Can you file a complaint? Can the court exclude the evidence obtained? These questions are unanswered.
- Limited to post-arrest: The right does not apply before arrest. If you are summoned for questioning under Section 35(3) BNSS (notice of appearance), you do not have a statutory right to a lawyer during that questioning. This is a major gap.
- No requirement for audio-video recording: Unlike some modern systems, BNSS does not mandate that interrogations be recorded. If they were recorded, the role of the lawyer would be more transparent and enforceable.
Suggestions for improvement include:
- Amending Section 38 to allow lawyer presence throughout interrogation, or at least defining minimum meeting durations.
- Making audio-video recording of interrogations mandatory.
- Creating a specific penalty for police officers who deny or delay lawyer access.
- Extending the right to counsel to the pre-arrest stage when a person is summoned for questioning.
- Establishing a statutory right to have a legal aid lawyer present at the first remand hearing.
Conclusion: Section 38 is a Step Forward, But the Journey Continues
Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is a vital safeguard. It recognizes that an arrested person is not a puppet in the hands of the police. They are a citizen with rights. They have the right to meet a lawyer, to seek advice, to protect themselves against coercion, and to ensure that the investigation is fair.
But Section 38 is not the end of the story. It is the beginning. The phrase "though not throughout interrogation" leaves a gap that the police can exploit. The lack of clear remedies for denial makes the right fragile. The limitation to post-arrest situations ignores the reality of modern investigations where much questioning happens before formal arrest.
The courts are already stepping in. The Punjab and Haryana High Court PIL, the Bombay High Court's scrutiny of arrest procedures, the Rajasthan High Court's insistence on judicial mind, and the Supreme Court's protection of advocate-client privilege all show that the judiciary is watching closely. They are ensuring that BNSS does not become a tool for oppression but remains a shield for the innocent and a check on the powerful.
As citizens, we must know our rights. We must demand that the police follow the law. We must support legal aid services. And we must continue the conversation about how to make our criminal justice system fairer, more transparent, and more humane.
Section 38 is not just a legal provision. It is a promise. A promise that even in the darkest room of a police station, the light of the law can enter. A promise that you are never truly alone. A promise that justice begins with a single meeting between an accused and their lawyer.
Let us keep that promise alive.
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