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Rights of Arrested Persons in India: BNSS 2023 & Constitutional Protections

R.J. Sharma, Advocate High Court & District Court

Rights of Arrested Persons in India: Navigating the BNSS 2023 Landscape

In any civilized society, the power of arrest is one of the most intrusive tools of the State. Under the Indian Legal System, the sanctity of individual liberty is enshrined in Article 21 of the Constitution, which mandates that no person shall be deprived of their life or personal liberty except according to a procedure established by law. This principle is not merely a procedural formality but the bedrock of our criminal jurisprudence.

With the recent overhaul of criminal laws, shifting from the Code of Criminal Procedure (CrPC) to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the procedural safeguards have been modernized. Understanding these rights is crucial for every citizen, legal practitioner, and law enforcement officer to prevent the "law of the jungle" from superseding the "Rule of Law."

Statutory Framework: Key Provisions

  • Section 35, BNSS (formerly Section 41, CrPC): Conditions under which police may arrest without a warrant.
  • Section 47, BNSS (formerly Section 50, CrPC): Mandatory duty to inform the arrested person of the grounds of arrest and the right to bail.
  • Section 48, BNSS (formerly Section 50A, CrPC): Obligation to inform a nominated person/relative about the arrest.
  • Section 51, BNSS (formerly Section 54, CrPC): Mandatory medical examination of the arrested person.
  • Section 58, BNSS (formerly Section 57, CrPC): Person arrested not to be detained more than 24 hours.
  • Article 22(1), Constitution of India: Fundamental right to consult and be defended by a legal practitioner of choice.

Landmark Judgments

D.K. Basu v. State of West Bengal (1997) 1 SCC 416
Facts A PIL was filed regarding deaths in police custody and custodial violence across various states.
Issue The absence of standardized guidelines to prevent custodial torture and ensure transparency during arrest.
Significance The Supreme Court laid down 11 mandatory guidelines. These rights are no longer just judicial directions but have been fully codified in the new BNSS framework.
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
Facts Concerns regarding the misuse of Section 498A IPC and automatic arrests by police officers.
Issue Whether arrest is mandatory in every cognizable offense where the punishment is less than seven years.
Significance The Court held that "Arrest brings humiliation, curbs liberty and leaves scars forever." Police must now provide specific reasons for arrest in their checklist provided to Magistrates.

Jurisprudential Analysis

The philosophy of Indian criminal law is rooted in the maxim "innocent until proven guilty." The rights of an arrested person serve as a check against "Police Raj." When a person is arrested, the power dynamic shifts entirely toward the State. Therefore, the law provides a "shield of procedure" to ensure that the deprivation of liberty is not arbitrary. This is what we call the Due Process requirement—ensuring that the dignity of the individual is maintained even while under suspicion.

Practical Tip for Clients: Always demand to see the "Arrest Memo." Ensure it mentions the exact time of arrest and is signed by at least one witness, preferably a family member or a respectable locality member. Under BNSS, digital notification to the family is now an accepted and required practice.

Recent Developments (2024-25)

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has introduced significant shifts. Notably, the introduction of Zero FIR and the mandate for Forensic Investigation in offenses punishable by 7 years or more has changed the pre-arrest and post-arrest landscape. Furthermore, the use of audio-video electronic means for recording statements and even the process of search and seizure is now prioritized, increasing transparency and reducing the scope for custodial manipulation.

Frequently Asked Questions (FAQs)

1. Can a woman be arrested after sunset?
As per Section 43(6) of BNSS, no woman shall be arrested after sunset and before sunrise, except in exceptional circumstances by a woman police officer with prior permission from a Judicial Magistrate.
2. Is it mandatory to provide a lawyer during interrogation?
Yes, Section 38 of BNSS allows an arrested person to meet an advocate of their choice during interrogation, though not throughout the entire process.
3. What is an Arrest Memo?
A document prepared at the time of arrest containing the time, date, and place, witnessed by a local inhabitant or relative, and countersigned by the arrested person.
4. Can I be detained for more than 24 hours without court orders?
No. Under Section 58 BNSS, production before a Magistrate within 24 hours (excluding travel time) is a mandatory constitutional and statutory right.

Conclusion

The law regarding the rights of arrested persons in India has evolved from simple statutory rules to robust constitutional mandates. The shift to BNSS signifies a move toward a more digital and forensic-heavy justice system. However, the core remains the same: Liberty is the rule, and arrest is the exception. Awareness of these rights is the first step toward justice.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. While we strive for accuracy, laws change frequently. Please consult with a qualified legal professional for specific legal issues.