Section 38

This provision draws on long-standing concerns about custodial abuse and coerced confessions in India. Courts and law reform bodies (including the Supreme Court's landmark directions in D.K. Basu v. State of West Bengal, 1997) recognized that arrested persons are vulnerable to intimidation and torture during police interrogation, and that access to legal counsel is a safeguard against this. At the same time, Indian law has historically not gone as far as some other countries in guaranteeing a lawyer's continuous physical presence during questioning, partly out of concern that this could hamper investigation. Section 38 of the BNSS formalizes this middle position into statutory law for the first time, rather than leaving it only as a judicial guideline.

The right traces back to the Supreme Court's guidelines in D.K. Basu v. State of West Bengal (1997), which held that an arrested person is entitled to meet his lawyer during interrogation, though not necessarily throughout the interrogation. Courts have generally interpreted this as allowing periodic or interval access to counsel — for example, a lawyer may be permitted to see the arrestee at intervals — rather than requiring the lawyer's uninterrupted presence in the interrogation room. This provision writes that judicial position into the new procedural code.

• Myth: An arrested person's lawyer must be present in the room for the entire police interrogation.
  Fact: The law only guarantees a meeting with the lawyer during the interrogation, not the lawyer's continuous presence throughout it.
• Myth: The police can refuse to let an arrested person see a lawyer at all until interrogation is finished.
  Fact: The person has a statutory right to meet an advocate of their choice at some point during the interrogation process itself.