Introduction:
Being a democratic country, India grants several civil rights to it's citizens and civil rights at the time of arrest, perhaps is one of the most important rights. These rights form a framework against potential abuses and injustices. In this article, we will examine the right of a person at the time of arrest in the light of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
1. Right to Know the Grounds of Arrest:
Article 22 of the Indian Constitution mandates that any detained person must be informed of the reasons for their arrest. Section 47 of the BNSS echoes this, emphasizing the duty of law enforcement to communicate all details and particulars of the offense.
2. Right to Consult and Legal Aid:
The right to consult and be defended by a lawyer is a fundamental tenet, explicitly stated in Article 39-A of Indian Constitution and Article 22(1) of the Indian Constitution. The BNSS in Section 341 further reinforces this right, ensuring legal representation for those unable to afford it.
3. Right to Silence:
Article 20(3) of Indian Constitution protects individuals from self-incrimination during interrogation, emphasizing the right to remain silent.
4. Right to Be Taken to Magistrate Within 24 Hours:
Article 22(2) of Indian Constitution and Section 57 of the BNSS stipulate that an arrested person must be presented before a magistrate within 24 hours, preventing undue and prolonged detention without judicial oversight.
5. Right to Trial:
Ensuring an open court trial, Article 14 of the Constitution guarantees equality before the law, emphasizing fairness and transparency in the legal process. The principle of a speedy trial is reiterated in landmark cases like Huissainara Khatoon vs. Home Secretary, State of Bihar.
6. Right to be Examined by a Medical Practitioner:
Section 53 of the BNSS safeguards an arrested person's right to request a medical examination, particularly when it could provide evidence important for their defense or disprove allegations.
7. Right to Notification of Arrest:
In addition to being informed of the grounds for arrest, individuals have the right to timely notification of their arrest to a friend, relative, or any other person of their choice. Section 48 of the BNSS imposes an obligation on the arresting authority to inform the arrested person about this right, enabling them to reach out to a trusted contact.
9. Right to Custody Memo and Documentation:
Section 56 of the BNSS emphasizes the duty of the custodian to take reasonable care of the health and safety of the accused. This includes the preparation of a custody memo containing the date and time of arrest, attested by a witness and countersigned by the arrested person. Proper documentation, including an entry in the diary helps in ensuring transparency and accountability.
10. Right to Compensation for Illegal Detention:
Section 359 of the BNSS empowers arrested persons to seek compensation for groundless arrest. This right serves as a deterrent against arbitrary detentions.
11. Right to Notice for Non-Cognizable Offenses:
Section 35 of the BNSS grants police officers the authority to give notice to a person suspected of committing a cognizable offense, requiring them to appear before the officer. This notice provides the accused with an opportunity to respond to allegations him.
12. Right to Legal Aid for Indigent Accused:
Article 39A and Section 341 of the BNSS obligate the state to provide free legal aid for indigent accused persons, ensuring that financial constraints do not compromise their right to a fair trial.
13. Right to No Restraint Beyond Necessity:
Section 46 of the BNSS mandates that police officers should not use more restraint than necessary during an arrest, preventing unnecessary force.
14. Right to Protection from Cruel and Inhuman Treatment:
Apart from the duty to take care of the health and safety of the accused, Section 56 of the BNSS ensures protection from cruel and inhuman treatment while in custody.
Watch JudiX’s 1 minute video lecture on Arrest and Anticipatory bail under BNSS
Let us now examine some of the decided cases relating the rights of arrest.
1. Joginder Singh v. State of U.P.:
This case contributed to the addition of Section 50-A to the Code of Criminal Procedure, whose essence is now under Section 48 of BNSS. The Supreme Court emphasized the obligation of police officers making an arrest to inform a relative or friend about the arrest of the concerned person.
2. D.K. Basu v. State of West Bengal:
An important case that led to the incorporation of Section 50-A ofCRPC and introduced critical guidelines to protect the rights of arrested persons. The Supreme Court outlined measures such as the duty to wear visible, clear, and accurate badges, preparation of a custody memo, the right to consult a lawyer during interrogation, and the prohibition of routine handcuffing unless exceptional circumstances arise.
3. Janardhan Reddy v. State of Hyderabad:
In this case, the court emphasized the right of an accused in death penalty cases to have legal representation, especially in situations where the accused is unable to arrange for counsel due to factors like illiteracy or ignorance.
4. Nandini Sathpathy v. P.L. Dani:
This case established the principle that no person arrested should be compelled to give evidence or statements that are incriminatory in nature. The court affirmed the right to remain silent during interrogation, reinforcing the protection against self-incrimination enshrined in Article 20(3) of the Indian Constitution.
5. Harimand v. Jailor:
The court's decision in this case emphasized the timely production of arrested persons before a magistrate within 24 hours, excluding the time for the journey. Failure to adhere to this provision could entitle the accused to release.
6. Huissainara Khatoon vs. Home Secretary, State of Bihar:
This case is regarding the right to a speedy trial, emphasizing that the trial should be disposed of as expeditiously as possible.
7. Prem Shukla vs. Delhi Administration:
The court held that prisoners have the right not to be handcuffed routinely unless exceptional circumstances arise.
Frequently Asked Questions (FAQs) on Arrest Rights in India:
1. What is the significance of Article 22 in the Indian Constitution regarding arrest rights?
Article 22 is crucial as it mandates that any person detained in custody must be informed of the reasons for their arrest, providing the foundation for the right to know the grounds of arrest.
2. How does the BNSS reinforce the right to legal representation?
Section 341 of the BNSS ensures the right to consult and be defended by a lawyer, reinforcing legal aid provisions stated in Article 39-A and 22(1) of the Constitution.
3. Can an arrested person choose not to provide self-incriminating statements during interrogation?
Yes, Article 20(3) protects individuals from being compelled to give self-incriminating statements, allowing them the right to remain silent during the interrogation process.
4. What is the significance of presenting an arrested person before a magistrate within 24 hours?
Both Article 22(2) and Section 57 of the BNSS emphasize the importance of judicial oversight within 24 hours, preventing prolonged and unjustified detention.
5. How does Section 53 of the BNSS safeguard an arrested person's rights?
Section 53 allows an arrested person to request a medical examination when it could provide crucial evidence for their defense or disprove allegations against them.
6. What does Section 48 of the BNSS stipulate regarding the notification of arrest?
Section 48 imposes an obligation on the arresting authority to inform the arrested person of their right to notify a friend, relative, or any trusted person about their arrest.
7. Can an arrested person seek compensation for groundless arrest?
Yes, Section 359 of the BNSS empowers arrested individuals to seek compensation for groundless arrest, serving as a deterrent against arbitrary detentions.
8. How does Section 35 of the BNSS address non-cognizable offenses?
Section 35 grants police officers the authority to give notice to a person suspected of committing a cognizable offense, allowing the individual an opportunity to respond and participate in the legal process.
9. Is legal aid provided to indigent accused persons under the BNSS?
Yes, both Article 39A and Section 341 of the BNSS mandate the state to provide free legal aid for indigent accused persons, ensuring a fair trial regardless of financial constraints.
10. How does Section 46 of the BNSS prevent excessive use of force during arrest?
Section 46 mandates that police officers should not use more restraint than necessary during an arrest, preventing unnecessary force and upholding the dignity of individuals in custody.
Rights on arrest under BNSS (Bharatiya Nagarik Suraksha Sanhita)
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