Guest Post: The Delhi High Court’s Interim Order on the Right to Counsel

[This is a guest post by Abhinav Sekhri, cross-posted from the Proof of Guilt blog.]


It appears that by an interim order passed on 03.06.2022, the Delhi High Court has stayed operation of a portion of an order passed by the Trial Court whereby it had directed that Satyendar Kumar Jain, who has been arrested by officers of the Enforcement Directorate and remanded to their custody for ten days, was entitled to have counsel present within visual range while he was being interrogated. The reasoning adopted by the High Court to grant interim relief is straightforward: the directions in the Trial Court’s order are seemingly contrary to judgments of the Supreme Court and the Delhi High Court, and so it was appropriate to stay their operation. 

The High Court was swayed by the decision of the Supreme Court in Poolpandi & Ors. v. Superintendent, Central Excise & Ors. [(1992) 3 SCC 259 (“Poolpandi“)] and an order of a Division Bench of the Delhi High Court in Sandeep Jain v. Addl. Director, DRI [Rev. Petition 387 of 2019 (Order dated 10.12.2019) (“Sandeep Jain“)], pressed into service by the Enforcement Directorate. All the Supreme Court judgments relied upon by the Respondent Satyendar Jain were distinguished simply because they, apparently, do not consider Poolpandi; the Bombay High Court judgment cited by his counsel was not relied upon due to the existence of Sandeep Jain which according to the High Court held a contrary view.

This admirably straightforward argument, which the High Court has accepted, has one small problem — it is wrong in law. A careful reading of the two main planks of the Enforcement Directorate’s contentions, viz. the judgments in Poolpandi and Sandeep Jain, shows that they were entirely inapplicable to the facts before the High Court in this case of Satyendar Jain. Importing Poolpandi and Sandeep Jain to this factual matrix is worse than comparing apples to oranges.

In Poolpandi the pure issue presented to the Supreme Court was this: do the persons summoned for being questioned under the Customs Act 1962 or the erstwhile Foreign Exchange Regulation Act 1947 have a right to presence of counsel while they are questioned. It was contended that the source for this right was Article 20(3) which protected accused persons against compelled self-incrimination, and alternatively in Article 21 as the questioning by agencies was necessarily coercive. The Supreme Court disagreed, primarily on that (incorrect) technical objection that persons being questioned under Customs Act etc. were not ‘accused’ thereby failing to trigger the Article 20(3) guarantee. As for Article 21, the Court refused to accept a presumption that questioning by agencies was necessarily coercive.

In Sandeep Jain, a review petition was filed challenging the dismissal of a writ petition by a single judge on entirely new grounds. This was, patently, outside the scope of review jurisdiction of the High Court, and the Division Bench rightly observed that the petition deserved an outright dismissal. In light of this, whatever followed was obiter dicta, and that is what has been treated as binding by a Single Judge in Satyendar Jain’s case. Be that as it may, what were the facts in Sandeep Jain? Again, it did not concern an arrested person; it involved a person who had avoided summons under Section 50 of the Prevention of Money Laundering Act, but now sought presence of counsel, within visual range, during his questioning. The Court declined to grant this indulgence, citing that no allegation of any threat existed justifying presence of counsel. The contrast with a case in which the person is arrested and remanded to ten days custody of the law enforcement agency could not be starker.

Critically, the issues before the Supreme Court in Poolpandi and the High Court in Sandeep Jain did notextend to considering whether persons who have been arrested and are undergoing custodial detention are also without any right to counsel during questioning. The scenario was purely about a set of people who had only been summoned, which is why none of the petitioners resorted to Article 22(1) of the Constitution which, plainly, guarantees to all persons who have been arrested the right to be defended by counsel of their choice. Since 2008, with the enactment of Section 41-D of the Criminal Procedure Code 1973, this aspect of Article 22 rights have been given clear and unambiguous statutory footing. Nothing in the Prevention of Money Laundering Act 2002 prevents the application of Section 41-D, and in any event, nothing in a statute can ever override the constitutional mandate of Article 22. 

The position of a person at liberty cannot be compared with a person under arrest. In doing so, and by ignoring the letter and spirit of Article 22(1), the High Court has unfortunately erred and has potentially set a rather dangerous precedent, perilously tilting an already skewed balance between rights of arrested persons and the powers of investigators even more in favour of the latter. There is more which can be argued to contest the legal soundness of the view taken by the High Court here, but it warrants a second look on this primary ground itself. 

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