These rights are constitutional and statutory, and breach of them has real consequences for the prosecution, so knowing them matters.
At the point of arrest
- To be informed of the grounds of arrest. Article 22(1) of the Constitution and Section 47 BNSS. Recent Supreme Court decisions have emphasised that the grounds must be communicated in writing and in a language the arrested person understands, and failure has led to release.
- To have a relative or friend informed. Section 48 BNSS, and the police must display information about the arrest.
- An arrest memo, attested by a witness and countersigned by the arrested person, recording the time and place. Section 36 BNSS requires the attesting witness to be a family member of the person arrested or a respectable member of the locality, and obliges the officer to bear a clearly visible identification of his name.
- To consult and be defended by a lawyer of your choice. Article 22(1). The lawyer may be present during interrogation, though not necessarily throughout. Section 38 BNSS now says exactly that.
- Medical examination at the time of arrest and periodically, recording any injuries. Under Section 53 BNSS the examination is by a government medical officer soon after arrest, the record must note any injuries or marks of violence and roughly when they were inflicted, a woman is examined only by or under the supervision of a female practitioner, and a copy of the report must be given to the arrested person or the person he nominates. Ask for that copy. It is the key document if custodial violence is alleged, and the one most often missed.
- To be told the grounds of arrest, and to have them communicated in writing
- To have a relative or friend of your choosing informed of the arrest and where you are held
- To be produced before the nearest Magistrate within 24 hours, excluding travel time
- To consult a legal practitioner of your choice, and to have one present during interrogation
- To be medically examined, and to have injuries recorded in the memo
- To free legal aid if you cannot afford counsel
- Where the offence carries less than seven years, to a notice to appear rather than arrest as a matter of course
Within 24 hours
You must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time needed for the journey. Article 22(2) and Section 58 BNSS. Detention beyond that without a Magistrate's authorisation is illegal.
The first production is not a formality. It is where the Magistrate must, under Section 48(4) BNSS, satisfy himself that a relative or friend was informed of the arrest and the entry made in the station register, and it is where the police ask for custody. Under Section 187 BNSS the Magistrate may authorise up to fifteen days of police custody, and that may now be taken in whole or in parts at any time during the first forty or sixty days of detention, rather than only in the opening fortnight as under the old Code. Opposing that request, on the right material, is what a lawyer is for that day.
D.K. Basu v. State of West Bengal (1997) laid down the requirements for arrest and detention that are now largely codified. Arnesh Kumar v. State of Bihar (2014) requires that for offences punishable up to seven years, the police issue a notice of appearance under what is now Section 35 BNSS rather than arresting mechanically, and record reasons if they do arrest. Officers who ignore these directions can face departmental and contempt consequences.
Additional protections
- A woman shall not be arrested after sunset and before sunrise save in exceptional circumstances and with the prior permission of a Magistrate, and arrest of a woman must be by a woman officer. Section 43 BNSS states it precisely: where exceptional circumstances exist the woman police officer must make a written report and obtain the prior permission of the Magistrate of the first class having local jurisdiction; a woman's submission to custody on oral intimation of arrest is presumed; and a male officer shall not touch her person to make the arrest.
- You cannot be compelled to be a witness against yourself. Article 20(3).
- Handcuffing is restricted and is not routine. Section 43(3) BNSS permits it only for a habitual or repeat offender, a person who escaped from custody, or a person accused of a listed grave offence such as organised crime, a terrorist act, murder, rape or acid attack. Section 46 separately forbids more restraint than is necessary to prevent escape.
- For an offence punishable with less than three years imprisonment, where the person is infirm or above sixty, Section 35(7) BNSS forbids arrest without the prior permission of an officer not below the rank of Deputy Superintendent of Police. This is new, and regularly ignored where elderly parents are named.
What to do
Stay calm and do not resist. Ask for the grounds in writing. Ask for your family to be informed. Say clearly that you wish to speak to a lawyer before answering questions. Do not sign anything you have not read. If rights are breached, the remedies include a habeas corpus petition and a complaint to the Magistrate, and the breach is a strong point at the bail stage.
For the family outside, a short list in this order. Get the FIR number and sections from the station. Note the exact time of arrest on the arrest memo, because the twenty four hours runs from it. Instruct a lawyer for the first production, not for a bail hearing a week later, and take sureties with their documents to court, since a bail order without a surety in attendance leaves the person in jail overnight. Where you believe the accusation is manufactured, the remedies are in our note on being falsely accused of a crime.
Then work out which bail application fits. If the offence is bailable, release is a matter of right on a bond. If it is non-bailable, it is a regular bail application before the Magistrate or Sessions Court. If the investigation runs past sixty or ninety days without a chargesheet, default bail arises whatever the merits. The distinctions are in our guide on the types of bail in India.