Section 38 BNSS 2023: Right of Arrested Person to Meet an Advocate During Interrogation
Section 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives an arrested person who is being interrogated by police the right to meet an advocate of his choice during interrogation, although the advocate is not entitled to remain present throughout the entire interrogation.
What does Section 38 BNSS provide?
Section 38 creates a statutory safeguard for a person who has been arrested and is being interrogated by police. The provision recognizes the arrested person's entitlement to meet a lawyer of choice during the interrogation process. At the same time, the text expressly states that this right does not extend to the advocate being present throughout the interrogation.
Key legal terms in Section 38
Arrested person: A person who has been lawfully taken into custody in accordance with the BNSS or another applicable law.
Advocate of his choice: A legal practitioner selected by the arrested person. Section 38 recognizes the arrested person's choice in deciding which advocate to meet during interrogation.
Interrogation: Police questioning of an arrested person in connection with investigation of an offence.
Though not throughout interrogation: The statutory right is to meet the advocate during interrogation, but the section itself does not confer a right to have the advocate continuously present during the entire interrogation.
Text of Section 38 - Right of arrested person to meet an advocate of his choice during interrogation
38. 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.
When does the right under Section 38 arise?
The section applies when both conditions mentioned in the provision exist: the person has been arrested and the person is being interrogated by police. The statutory protection is therefore specifically connected with custodial police interrogation after arrest.
Right to an advocate of choice
The provision expressly refers to an advocate "of his choice". This means that the arrested person is not confined by Section 38 to meeting only a lawyer selected by the police or another authority. The wording recognizes the person's right to choose the advocate whom he wishes to meet, subject to applicable law and practical arrangements governing custody and interrogation.
Does the advocate have a right to remain present throughout interrogation?
No. Section 38 contains an express limitation. It states that the arrested person is entitled to meet the advocate during interrogation, "though not throughout interrogation". The section therefore guarantees access to the chosen advocate during the interrogation process, but does not create a statutory right to continuous presence of the advocate for every moment of police questioning.
Relationship with constitutional safeguards
Section 38 operates alongside constitutional protections available to arrested persons. Article 22(1) of the Constitution of India provides that a person who is arrested shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice. Section 38 gives a specific statutory expression to access to an advocate during police interrogation under the BNSS.
Related BNSS provisions on arrest
Section 38 should be read with Section 35 BNSS on arrest without warrant, Section 36 BNSS on procedure of arrest and duties of the arresting officer, Section 37 BNSS on designated police officers, and Section 39 BNSS concerning arrest on refusal to give name and residence.
Section 38 BNSS at a glance
- The provision applies to a person who has been arrested and is being interrogated by police.
- The arrested person is entitled to meet an advocate of his choice.
- The meeting may take place during interrogation.
- The statute does not grant a right to continuous presence of the advocate throughout the entire interrogation.
- The provision operates alongside Article 22(1) of the Constitution and other arrest safeguards under the BNSS.
Official legal resources
This page provides general legal information. The application of Section 38 in an individual case may depend on the facts, the nature of custody and interrogation, court directions, constitutional safeguards, and other applicable provisions of law.