Interrogation Techniques and Legal Safeguards: Balancing Investigation Needs and Rights of the Accused

When a person is taken into custody and placed in an interrogation room, what actually governs what the police can and cannot do? In India, the answer is layered across the Constitution, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – which replaced the Code of Criminal Procedure (CrPC) from July 1, 2024 – and a body of landmark Supreme Court judgments. Interrogation sits at the sharpest edge of the criminal justice system: investigators need information, and the accused holds legal rights that cannot simply be stripped away for convenience. Understanding where exactly that line is drawn is essential for any student or practitioner of criminal law.

What is interrogation in the criminal law context? 🔗

Interrogation, in the criminal procedure context, refers to the systematic questioning of a person – either accused, arrested, or a person of interest – by a police officer or investigating agency to collect information about an alleged offence. It is a core investigative tool. But it is not a limitless one. The BNSS and its predecessor, the CrPC, set out a comprehensive procedural framework that governs how interrogation must be conducted – including who can ask questions, what kind of questions can be asked, how statements are recorded, and what rights an accused person retains throughout the process.

The key statutory provision governing police examination during an investigation is Section 180 of the BNSS (which replaced Section 161 of the CrPC). Section 180 authorises a police officer to orally examine any person believed to be acquainted with the facts and circumstances of a case. Critically, though this provision speaks of “witnesses,” courts have consistently interpreted the phrase “any person supposed to be acquainted with the facts” to include the accused or suspect as well.

The constitutional framework: rights the accused always carries 🔗

Before getting into the mechanics of interrogation, it is essential to understand the constitutional foundation. Three Articles of the Indian Constitution directly shape what interrogation can and cannot look like.

Article 20(3) – protection against self-incrimination 🔗

Article 20(3) guarantees that no person accused of an offence shall be compelled to be a witness against himself. This is the constitutional basis for the right to silence during interrogation. The Supreme Court directly applied this right in the landmark case of Nandini Satpathy v. P.L. Dani (1978), where Justice Krishna Iyer held that an accused is entitled to keep silent and refuse to answer any question that is likely to expose them to guilt. Importantly, this protection is available not just at trial but also at the investigation stage, including during police interrogation.

Reinforcing this, Section 180(2) of the BNSS states that a person is bound to answer questions truthfully, but is not obligated to answer questions whose answers would expose them to a criminal charge, penalty, or forfeiture. This exception clause directly mirrors the constitutional protection under Article 20(3). Additionally, no court can draw an adverse inference against an accused simply because they chose to remain silent – silence is not treated as evidence of guilt.

Article 21 – right to life and personal liberty 🔗

Article 21 guarantees the right to life and personal liberty, and the Supreme Court has held that this includes a guarantee against torture and assault by the State or its functionaries – whether it occurs during investigation, interrogation, or otherwise. Any form of cruel, inhuman, or degrading treatment during custody is a direct violation of Article 21. This is not a procedural technicality; it is a constitutional command.

Article 22 – procedural safeguards upon arrest 🔗

Article 22 of the Constitution requires that an arrested person must be informed of the grounds of arrest and must be produced before a Magistrate within 24 hours, excluding travel time. The right to consult and be defended by a lawyer of choice is also embedded here. These rights become immediately operational the moment a person is arrested – even before formal interrogation begins.

Statutory safeguards under the BNSS during interrogation 🔗

The BNSS translates these constitutional protections into specific procedural obligations. Several provisions are directly relevant to the interrogation of an accused person.

Right to legal counsel during questioning 🔗

One of the most significant rights during interrogation is the right to access a lawyer. Section 38 of the BNSS confers upon an arrested person the right to meet an advocate of their choice during interrogation, though not throughout its entire course. This was previously Section 41D of the CrPC and was incorporated into the statute based on the recommendations of the 177th Law Commission Report.

The purpose of this provision is not merely formal. Legal counsel during interrogation ensures that the accused can later effectively exercise rights such as representation during remand proceedings and applications for bail. In Mohd. Ajmal Amir Kasab v. State of Maharashtra, the Supreme Court reaffirmed that the presence of a lawyer during interrogation serves as a crucial safeguard against coercion. It is worth noting that the right to meet a lawyer during interrogation does not mean the lawyer participates actively in the questioning – but their presence acts as a check on police conduct.

Right to be informed of grounds of arrest 🔗

Section 47 of the BNSS casts a duty on every police officer making an arrest to immediately communicate to the arrested person the full particulars of the offence and the grounds of arrest. This right is foundational – without knowing why one is being held, an accused person cannot meaningfully exercise any other right, including the right to remain silent on specific charges. A recent Supreme Court judgment clarified that simply handing over an arrest memo is insufficient; the grounds must be actively communicated to the person being held.

Production before a Magistrate within 24 hours 🔗

Sections 57, 58, and 76 of the BNSS mandate that any arrested person must be produced before a Magistrate within 24 hours of arrest, excluding travel time. This requirement creates a critical check on custodial interrogation: the police cannot hold a person indefinitely without judicial oversight. Once produced before the Magistrate, the accused gets an opportunity for bail, and the Magistrate ensures that the conditions of custody are lawful.

Audio-video recording of statements 🔗

A notable modernisation in the BNSS is the allowance for statements during examination to be recorded through audio-video electronic means. This provision under Section 180(3) of the BNSS enhances transparency and reduces the scope for manipulation of witness and accused statements recorded during investigation. In cases involving sexual offences against women, the statement must specifically be recorded by a woman police officer or any woman officer – a gender-sensitive safeguard that was continued from the CrPC regime.

Right to medical examination 🔗

Section 53 of the BNSS grants the accused the right to demand a medical examination. This serves a dual purpose: it protects the accused’s physical wellbeing and creates an evidentiary record that can be used to challenge claims of custodial abuse. The D.K. Basu guidelines, which were later codified into the CrPC and carried over in spirit into the BNSS, also require medical examinations every 48 hours during custody.

The D.K. Basu guidelines: a turning point for custodial rights 🔗

No discussion on interrogation safeguards in India is complete without examining D.K. Basu v. State of West Bengal (1997). This Supreme Court decision arose from a public interest litigation highlighting the alarming rise of custodial deaths and torture in India. The Supreme Court held that custodial torture is a naked violation of human dignity and that any form of cruel or inhuman treatment during investigation violates Article 21.

The Court issued a comprehensive set of guidelines that became binding on all arresting and interrogating agencies. These guidelines include: police personnel must wear visible identification during arrests; an arrest memo must be prepared and witnessed; a relative or friend of the arrested person must be informed; the arrestee must be medically examined at the time of arrest and every 48 hours thereafter; and a lawyer must be allowed to meet the arrestee during interrogation, though not continuously. Non-compliance with these guidelines amounts to contempt of court.

These requirements were subsequently incorporated into the CrPC by the 2008 amendment and now carry forward under the BNSS framework. Despite this, reports from across various states have indicated that D.K. Basu guidelines are not being followed consistently in practice – a gap that remains a significant concern for the criminal justice system.

What investigators cannot do: absolute prohibitions 🔗

The law draws firm lines around impermissible interrogation practices. Third-degree methods – meaning the use of physical force, threats, or psychological coercion to extract information – are unconstitutional and inadmissible as a matter of law. Any confession or statement obtained through torture, threat, or inducement is not admissible in court under the Bharatiya Sakshya Adhiniyam, 2023 (the successor to the Indian Evidence Act).

The Supreme Court has held that narco-analysis, brain mapping, and lie detector tests conducted without the informed consent of the accused violate Article 20(3) and are impermissible during interrogation. This was affirmed in Selvi v. State of Karnataka (2010), where the Court drew a bright line: involuntary administration of these techniques constitutes a compelled testimonial act, which the Constitution prohibits.

Balancing investigation needs and individual rights 🔗

The tension between effective investigation and the rights of the accused is real. Courts have consistently held that a balance must be struck between the constitutional and statutory safeguards on the one hand and the effective discharge of lawful law enforcement duties on the other. Interrogation is a legitimate and necessary tool of investigation – the problem arises when it is used coercively or as a substitute for proper evidence gathering.

The BNSS has also altered the provisions on police custody duration in ways that have raised concern among legal scholars, particularly around how the 15-day police custody limit is calculated across the investigation period. The risk, as critics point out, is that extended police custody increases the window for custodial abuse during interrogation – making judicial oversight through timely Magistrate production all the more critical.

The integrity of the entire investigation process depends on how interrogation is conducted. Evidence obtained through unlawful means can render an otherwise solid case legally untenable. Courts will not only exclude such evidence but may also question the legitimacy of the investigation itself. Ethical interrogation, therefore, is not just a human rights obligation – it is also a matter of prosecutorial strategy.

Key cases at a glance 🔗

Nandini Satpathy v. P.L. Dani (1978): Established that the right against self-incrimination under Article 20(3) extends to the investigation stage. An accused is entitled to silence during police interrogation if questions are likely to expose them to criminal liability.

D.K. Basu v. State of West Bengal (1997): Laid down binding guidelines for police conduct during arrest and interrogation to prevent custodial violence. These guidelines were subsequently incorporated into the CrPC and apply under the BNSS framework.

Selvi v. State of Karnataka (2010): Held that narco-analysis, brain mapping, and polygraph tests conducted without consent are unconstitutional and violate Articles 20(3) and 21.

Arnesh Kumar v. State of Bihar (2014): Directed that arrests should not be made mechanically; notice under Section 41A CrPC (now Section 35 BNSS) must be issued before arrest wherever applicable, preventing unnecessary custodial interrogation.

What do you think? Given that D.K. Basu guidelines have been law for nearly three decades and are yet inconsistently followed, what institutional reforms do you think are needed to ensure that the rights of the accused are meaningfully protected during police interrogation – not just on paper? And should India consider formally allowing a lawyer to be present throughout interrogation, rather than merely for consultation, given the risk of custodial coercion?

References

1. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00049_202346_1719552320687&orderno=180
2. https://www.lexology.com/library/detail.aspx?g=9c05e5f4-8a8e-4e0d-8c4a-89f2f15b7152
3. https://www.ijllr.com/post/section-180-bnss-echoes-of-section-161-crpc-with-a-constitutional-core
4. https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081051.pdf
5. https://www.apnilaw.com/bare-act/bnss/section-180-bharatiya-nagarik-suraksha-sanhitabnss-examination-of-witnesses-by-police/
6. https://thelegalquorum.com/case-summary-d-k-basu-vs-state-of-west-bengal/
7. https://kamalandcoadvocates.com/guide/nine-rights-of-arrested-person-in-india/
8. https://www.scobserver.in/supreme-court-observer-law-reports-scolr/communication-of-grounds-of-arrest/
9. https://ijlmh.com/wp-content/uploads/Interrogation-Stage-and-The-Right-to-Legal-Counsel.pdf
10. https://themightybrains.com/the-accused-and-bnss-2023-blog/
11. https://www.leadindia.law/blog/en/what-is-section-180-of-bnss/
12. https://www.facultyadda.com/2025/06/rights-on-arrest-india.html
13. https://indiankanoon.org/doc/10337889/
14. https://lc2.du.ac.in/DATA/Rights%20of%20Arrested%20person%20(Dr.%20Kalpna%20Sharma).pdf
15. https://cdnbbsr.s3waas.gov.in/s3ec03333cb763facc6ce398ff83845f22/uploads/2025/10/2025100720.pdf
16. https://cjp.org.in/police-custody-under-crpc-bnss-a-paradigm-shift-in-balancing-liberty-and-investigation/