Right to Defence of an Accused – Scope and Ambit of the Right

Abstract

This paper examines the constitutional and statutory foundations of the right to legal representation in India, tracing its evolution from the Constituent Assembly debates to the contemporary criminal justice framework under the Bharatiya Nagarik Suraksha Sanhita (BNSS). While Articles 21, 22(1), and 39-A collectively guarantee access to counsel and free legal aid, judicial interpretation has created ambiguity regarding when this right begins—particularly in the pre-arrest and investigative stages. Through an analysis of landmark decisions such as Nandini Satpathy, Hussainara Khatoon, Ranchod Mathur Wasawa and the Kasab case, the paper highlights the tension between constitutional protections and restrictive judicial stances that limit the presence of lawyers during police interrogation. Using the recent Allahbadia controversy as a case study, it argues that excluding legal assistance at police stations exacerbates power imbalances, risks coercive practices, and undermines procedural fairness. The paper further discusses the role and shortcomings of legal aid institutions in ensuring meaningful access to justice, especially for economically disadvantaged accused persons. Ultimately, it contends that safeguarding the right to defence requires extending legal consultation beyond formal arrest, strengthening institutional delivery of legal aid, and adopting reforms that balance investigative efficacy with constitutional guarantees.