Introduction
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023—which replaces the Code of Criminal Procedure (CrPC), 1973—marks a major reform in India’s criminal justice system. At the heart of any fair criminal trial lies the right of the accused to defend themselves, and that responsibility is carried out by the defence lawyer.
The defence counsel, also known as the advocate for the accused, plays a crucial role in ensuring that the trial process is just, the rights of the accused are protected, and that the presumption of innocence is honored until proven guilty. The BNSS retains and modernizes these rights while also promoting faster and more efficient trials.
Legal Basis for Defence in BNSS
While BNSS does not define a “defence lawyer” separately, multiple provisions guarantee legal representation, a fair trial, and due process—ensuring that the defence has a strong role. Important constitutional guarantees under Article 21 (Right to Life and Personal Liberty) and Article 22(1) (Right to Counsel) of the Indian Constitution are fully supported under the BNSS.
Key Responsibilities of a Defence Lawyer Under BNSS
1. Ensuring the Right to Legal Representation (Section 38)
- BNSS Section 38 gives every arrested person the right to consult a legal practitioner of their choice.
- The defence lawyer steps in from the time of arrest, advising the accused on their rights and available remedies.
2. Safeguarding Against Unlawful Detention (Section 56–57)
- Defence lawyers ensure the accused is produced before a Magistrate within 24 hours.
- They can challenge illegal arrests, torture, or police misconduct.
3. Applying for Bail (Section 479–485)
- The defence lawyer plays a critical role in bail hearings.
- They gather necessary facts and present arguments that the accused:
- Is not a flight risk
- Will cooperate with the investigation
- Deserves interim liberty
4. Defending During Trial (Sections 339–362)
- Defence lawyers cross-examine prosecution witnesses, present evidence, and argue for acquittal.
- They protect against:
- Improper questioning
- False evidence
- Procedural lapses
- With digital filing and video trials now allowed, defence lawyers must also adapt to tech-based systems.
5. Access to Case Information (Section 193, 230)
- BNSS requires charge sheets, police reports, and evidence to be submitted digitally.
- The defence lawyer uses these to analyze flaws in the prosecution case and prepare the strategy.
6. Filing Petitions and Objections
- During investigation or trial, the defence lawyer may file:
- Discharge applications
- Objections to illegal searches/seizures
- Petitions for quashing FIR or proceedings
7. Appeals and Revisions (Sections 421–444)
- If the accused is convicted, the defence lawyer can:
- File appeals
- Request suspension of sentence
- File revision petitions in higher courts
8. Protecting the Accused’s Rights Throughout
- Ensures:
- No coerced confessions are used
- Right to silence is respected
- No excessive delay in proceedings
- Fairness and balance are maintained
Role in Specific Stages of the Criminal Process
| Stage | Defence Lawyer’s Role |
|---|---|
| Arrest | Ensures lawful arrest, presence during questioning, applies for bail |
| Investigation | Advises client, checks misuse of police powers, requests anticipatory bail |
| Framing of Charges | Argues against framing incorrect or exaggerated charges |
| Trial | Cross-examines witnesses, produces defence evidence, argues legal points |
| Judgment | Makes closing arguments, appeals against wrongful conviction |
| Post-trial Proceedings | Assists in sentence suspension, parole applications, legal remedies |
Defence Counsel for the Poor: Legal Aid
- Under BNSS and the Legal Services Authorities Act, 1987, those unable to afford a lawyer are entitled to free legal aid.
- Legal aid lawyers perform all the functions of a regular defence counsel to ensure equal access to justice.
Constitutional Backing of Defence Rights
- Article 21: Fair trial is a part of right to life.
- Article 22(1): Right to consult and be defended by a legal practitioner.
- Case law: Hussainara Khatoon v. State of Bihar (1979) – Emphasized free legal aid as a fundamental right.
Importance of the Defence Lawyer in Ensuring a Fair Trial
- Checks abuse of power by police and prosecution
- Guards individual liberty
- Protects against wrongful convictions
- Brings balance to adversarial trial system
- Contributes to public confidence in the justice system
New Challenges and Skills in BNSS Era
- Defence lawyers must now:
- Work with digital documents and evidence portals
- Participate in video hearings
- Understand forensic reports and AI-generated evidence
- Protect privacy while ensuring compliance with tech-based rules
Summary Table
| Aspect | Defence Lawyer’s Role |
|---|---|
| Legal Representation | Advising, defending, and protecting rights |
| Bail and Custody | Filing bail applications, opposing illegal detention |
| Trial Duties | Examining evidence, cross-examining witnesses, arguing on merits |
| Appeals and Revisions | Filing appeals in Sessions Court, High Court, and Supreme Court |
| Procedural Protection | Ensuring due process, opposing misuse of power |
| Legal Aid | Ensuring access to defence even for the economically weaker sections |