Interrogation is integral to criminal and regulatory probes, and courts recognise the legitimacy of arrest and detention to facilitate it. Yet, investigative agencies are increasingly resorting to non-custodial, late-night interrogations—a practice the Supreme Court, the Bombay High Court, and the Punjab & Haryana High Court have increasingly criticised in cases involving the Enforcement Directorate (ED).
These late-night interrogations run counter to the Supreme Court’s affirmation of sleep as a fundamental right under Article 21 of the Constitution of India. That declaration in the Ramlila Maidan case was made over a decade ago. Yet, the courts have still not laid down justiciable guidelines in the context of overnight interrogations.
In April 2024, in the case of Ram Kotumal Issrani v. Enforcement Directorate, the Bombay High Court came close. A 64-year-old businessman approached the court seeking inter alia, a declaration that his arrest and remand were illegal. The ED admitted that the Petitioner was summoned at 1030 hours, interrogation started at 2230 hours, continued till 0330 hours, and was followed by an arrest at 0530 hours. Although the Court held that the arrest was not illegal, it observed that the petitioner was deprived of his right to sleep, a fundamental right guaranteed under Article 21 of the Constitution of India.
Ultimately, the Court held that statements under Section 50 of the Prevention of Money Laundering Act, 2002 must be “necessarily recorded during earthly hours and not in the night when the person’s cognitive skills may be impaired.” Unfortunately, instead of stopping there, the Bombay High Court tasked the ED with issuing a self-correcting circular in the very next paragraph.
The ED then published a Technical Circular on 11 October 2024 stating that “efforts should be made” to record statements of persons summoned during ‘earthly hours’. However, it carves out so-called ‘exceptional circumstances’ where the authorised officer may record statements beyond earthly hours if in possession of credible information that the person being interrogated may (1) alienate proceeds of crime (2) destroy evidence or (3) may abscond or not join investigation, and (4) in the truest spirit of self-regulation, “etc.” The ED magnanimously included a further safeguard for these scenarios—the authorised officer making a note on the case file and taking the approval of a superior officer. Unsurprisingly, the Technical Circular does not prescribe any consequences for officers in default.
On 14 October 2024, the Bombay High Court, despite unequivocally holding that statements under Section 50 of the PMLA must be recorded during “earthly hours,” accepted compliance based on the ED circular. In effect, a fundamental constitutional right was made contingent on an internal memo—subject to an investigator’s ‘best effort’ and two signatures on a case file unlikely to ever emerge from a sealed cover.
It is difficult to see how such ‘exceptional circumstances’ justify depriving someone of sleep. If the situation is truly exceptional, the law permits arrest. Even then, detainees retain all fundamental rights, save those necessarily restricted by incarceration. Yet, the same courtesy does not extend to a person summoned for interrogation, who may not even be accused of a crime.
While other courts have also condemned the ED’s practice of overnight interrogations, they have fared no better in safeguarding the right to sleep. In July 2024, the Punjab and Haryana High Court observed that a 14-hour long interrogation till 0140 hours, followed by arrest, was “not heroic on the part of ED; rather it is against the dignity of a human being.” Unfortunately, the Court directed another form of self-regulation—officer ‘sensitization’—rather than laying down justiciable guidelines. The arrest was declared illegal on other grounds, which the Supreme Court confirmed on the ED’s appeal.
In August 2024, the Chhattisgarh High Court was apprised, inter alia, of an overnight interrogation that culminated in an arrest at 0345 hours. However, the High Court merely observed that neither the arrest nor the subsequent remand order violated any provisions of the Prevention of Money Laundering Act, 2002 or the Code of Criminal Procedure, 1973. When the matter came before the Supreme Court on appeal, it described several “disturbing features” of the manner in which the overnight interrogation was conducted. However, the Court noted the Additional Solicitor General’s reference to the ED’s Technical Circular as a remedial measure to ensure that such incidents are avoided, and did not lay down any specific guidelines.
Similar issues concerning the right to sleep have also been raised in the context of investigations under the Central Goods and Services Tax Act, 2017. In May 2024, in Shiv Kumar Deora v. Union of India, the Jharkhand High Court similarly deferred to internal circulars stating that statements should be recorded during office hours, subject to the exception that the person being interrogated may abscond, rather than holding the officers conducting late-night interrogations to account.
Article 21 of the Constitution, and so too the fundamental right to sleep, is non-negotiable. Unlike Article 19, the right to sleep is not subject to ‘reasonable restrictions.’ While Article 21 rights may at times yield to competing claims, it is difficult to imagine any legitimate rationale for state-sanctioned sleep deprivation. Courts have acknowledged that overnight interrogations threaten human dignity. It is time that courts step in to protect it.
