The Universal Declaration of Human Rights (UDHR) in its article 1 state, “All human beings are born free and are equal in dignity and human rights.” Similarly, Article 21 of the Indian Constitution states, “No person shall be deprived of his life and personal liberty except according to procedure established by law”. Thus, the liberty of the person is his fundamental right. The freedom to move is very essential for every person to develop his personality and to participate in socio-economic and political life. Though this freedom is not absolute, reasonable restrictions can be imposed by the State. But these restrictions must be just, fair reasonable, and according to the procedures established by law. The arrest of a person by law-enforcing authorities is one of the ways by which a person’s freedom is curtailed. There is widespread criticism of the police force in our country that they use the power of arrest for their own selfish gains or for political or communal considerations. The power of police is not unlimited. The need of an hour is that the common man is aware of his rights if arrested. An unlawful arrest is a violation of Human Rights, and such a person is entitled to compensation. The Indian legal system works on the principle that the person is innocent till proved guilty. Hence, an arrested person’s rights should be safeguarded, and he should be treated with dignity.
Let us understand the rights of the arrested person.
To know the grounds of arrest you have a right to know the reasons for your arrest. This is every person’s fundamental right under Article 22 of the Indian Constitution. The fundamental rights cannot be curtailed without the procedure established by law. Further Section 50 of the Criminal Procedure Code, 1973 also mandates that the person arrested be informed of grounds of arrest. This is the duty of the arresting officer, and he cannot refuse to furnish the grounds of arrest. If the person is alleged of committing a cognizable offense he can be arrested without a warrant.
Notify the substance of Warrant
If the police are arresting after procuring a warrant from the court, Section 75 of the Criminal Procedure Code mandates notification of substance of warrant to the person and if required to show him the warrant.
Right to consult the lawyer of your choice
An arrested person under Section 303 of the Criminal Procedure Code has the right to consult the legal practitioner of his own choice. This is also a Fundamental Right as mandated in Article 22. Further, under Section 41D the arrested person can meet an advocate of his choice during interrogation.
To produce before the Magistrate within 24 hours
If you are arrested, the police cannot take you to an unknown destination. According to Section 76 of the Criminal Procedure Code, they are required to produce the arrested person before the nearest Magistrate within 24 hours. This is also a Fundamental Right of an arrested person under Article 22 of the Indian Constitution.
Protection against Cruel and Inhuman treatment
As commonly known that police use third-degree treatment to extract confession during an investigation. The police cannot do so. In fact, under Section 55A it is the duty of the person having the custody of the arrested person to take reasonable care of his health and safety. When produced before the Magistrate, the duty is cast on the Magistrate to ensure that the arrested person is not physically abused.
To be informed regarding his right to bail if the arrested person is charged with a bailable offense
If a person is arrested for a bailable offense, it is the duty of arresting officer under Section 50(2) of the Criminal Procedure Code to inform him that he is entitled to be released on bail.
The obligation of the person making an arrest to inform the nominated person about the arrest
Under Section 50 A of the Criminal Procedure Code, the duty is cast on the police office arresting the person to inform about the arrest to a close relative or friend nominated by the arrested person and about the place where he has been held. The entry of the fact is to be recorded in the book kept at the police station.
Right of indigent (poor) person when arrested
If an indigent person is arrested, he is entitled to free legal aid under Article 39 A of the Indian Constitution. The State must provide free legal aid to the poverty-stricken accused person as held by Supreme Court in Khatri v State of Bihar’s case.
If the arrested person is not able to hire a lawyer, it is mandatory for the State to provide free legal aid even if he fails to apply for the same. This was firmly established by the Supreme Court in Sukh Das v State of Arunachal Pradesh’s case.
Similarly, Section 304 of the Criminal Procedure Code provides for the appointment of a lawyer free of cost at the expense of the State for the person who does not have sufficient means to appoint one for himself.
Right to silence i.e., right against self-incrimination
The Indian Constitution provides immunity to an accused against self -incrimination under Article 20(3). A person cannot be compelled to be a witness against himself. This is based on the legal maxim, “nemo teneteur prodre accussare seipsum” which means no person can be compelled to give witness against himself.
Right to be examined by the Medical Practitioner
An arrested person under Section 54 of the Criminal Procedure Code can ask the magistrate for medical examination if his body would lead to a detail that would dismiss the fact of his commission of the criminal offense.
Clear identification of arresting personal
As mandated under Section 41 B of the Criminal Procedure Code, the police officer while making an arrest should have clear, accurate, and visible identification of his name. This will facilitate the identification of the officer conducting the arrest.
Preparation of Memorandum of arrest
The memorandum of arrest is required to be signed by a member of the family or a respectable member of the locality. Section 41B further mandates the memorandum to be countersigned by the arrested person. The police officer while arresting a person is required to prepare an arresting memorandum with complete details of the arrest like date, time, the offense for which arrested, etc. The arrested person is also required to countersign the memorandum.
Right not to be handcuffed in shackles
In Prem shukla v Delhi Administration’s case, the Supreme Court held that the arrested person has a right not to be handcuffed in shackles if he is cooperating.
Rights of women when arrested
A woman cannot be arrested after sunset and before sunrise in normal circumstances. There is a requirement for the presence of a woman police officer when women are arrested. The search of a woman must be carried out by a woman police officer only. In exceptional circumstances, a police officer can arrest a woman, but this can be done only after seeking permission from the magistrate, and an arrest should be made by a lady police officer as per Section 46(4) of the Criminal Procedure Code.
After an arrest, the woman arrestee should be kept in a separate lockup. If no such separate lockup is available, then she should be kept in a separate room. Medical examination of women arrestees should be done under the supervision of female medical practitioners. If a woman arrestee is pregnant, she is entitled to pre-natal and post-natal care.
Maliimath Committee in its report on Reforms in Criminal Justice System had rightly pointed out that the arrested person not only has the right to know his rights when arrested but also to know how to enforce such rights. Thus, this is an endeavor to bring legal awareness regarding your rights if arrested.
Dr Kiran D. Gardner is Professor and Dean, School of Law, Alliance University. She is holder of two doctoral degrees in Law and Education. Her doctoral research is on Minority and Tribal Rights. Her area of interest is Criminal Law, Constitutional Law and Gender Studies.