Rights of an Arrested Person in India: Legal Safeguards Under BNSS and the Constitution

An arrest is one of the most coercive powers exercised by the State against an individual. For most citizens, an unexpected encounter with law enforcement causes immediate distress, panic, and uncertainty. However, the Indian legal system recognizes that deprivation of personal liberty must always be governed by strict procedural safeguards.

With the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—which replaces the historic Code of Criminal Procedure, 1973 (CrPC)—India's procedural criminal law has reaffirmed and updated these fundamental protections. Whether an individual is summoned for questioning or placed under formal arrest, knowing these rights is essential to preventing police excesses, custodial torture, and unlawful detention.

Here is a comprehensive legal guide to the statutory and constitutional rights of an arrested person in India.

Constitutional Foundations: Articles 21 and 22

Any discussion of arrest procedures begins with the Constitution of India:

Article 21 (Protection of Life and Personal Liberty): No individual can be deprived of personal liberty except according to procedure established by law. This procedure must be just, fair, and reasonable.
Article 22 (Protection Against Arrest and Detention): Guarantees the right to be informed of the grounds of arrest, the right to consult and be defended by a legal practitioner of one's choice, and the mandatory requirement to be produced before the nearest judicial magistrate within 24 hours.
Article 20(3) (Protection Against Self-Incrimination): Protects an accused person from being compelled to be a witness against themselves ("right to silence").

These constitutional guarantees are directly operationalized through the provisions of the BNSS, 2023.

Key Statutory Rights of an Arrested Person Under BNSS, 2023

1. Right to Know the Grounds of Arrest

Under Section 47 of the BNSS (corresponding to Section 50 of the erstwhile CrPC), every police officer arresting a person without a warrant must immediately communicate the full particulars of the offence for which the arrest is made or other grounds for such arrest.

Vague or evasive answers are unlawful. The grounds must be clearly stated so that the individual can prepare an immediate defense or apply for bail.

2. Right to Be Informed About Bail (Bailable Offences)

If the alleged offence is bailable, Section 47(2) of the BNSS mandates that the arresting officer must inform the accused that they are entitled to be released on bail and may arrange for sureties. The police cannot withhold this information or arbitrarily keep a person in custody for a bailable offence.

3. Right to Inform a Nominated Person Immediately

Under Section 48 of the BNSS (previously Section 50A CrPC), the arresting officer has a legal duty to inform a relative, friend, or any other person nominated by the arrested individual about:

The fact of the arrest, and
The exact police station or facility where the person is being held.

The police officer must record in a register maintained at the police station who was informed of the arrest. Additionally, under Section 37 of the BNSS, State governments must establish a Designated Police Officer (DPO) in every district and at every police station who is responsible for maintaining and displaying the names and addresses of all arrested persons.

4. Right to Consult a Legal Practitioner

Under Section 38 of the BNSS (read with Article 22(1) of the Constitution), an arrested person has the right to meet and consult an advocate of their choice throughout interrogation, though not throughout the entire duration of questioning continuously.

If the accused cannot afford private counsel, the State is constitutionally obligated under Article 39A to provide free legal aid through the District Legal Services Authority (DLSA).

5. Right to Be Produced Before a Magistrate Within 24 Hours

Under Section 58 of the BNSS and Article 22(2) of the Constitution, an arrested person cannot be detained in police custody for more than 24 hours without explicit judicial sanction.

This 24-hour limit excludes the time necessary for the journey from the place of arrest to the Magistrate’s Court.
Detention beyond 24 hours without an order of remand by a Magistrate constitutes illegal detention and violates fundamental rights.

6. Right to Medical Examination

Under Section 53 of the BNSS, an arrested person must be medically examined by an authorized medical officer immediately after arrest.

If no government medical officer is available, the examination must be conducted by a registered medical practitioner.
A copy of the medical report must be furnished to the arrested person or their nominated representative.
This provides a crucial paper trail documenting the individual's physical condition at the time of arrest, helping to deter and identify custodial violence.

7. Right to Humane Treatment and Non-Excessive Force

Under Section 43 of the BNSS, an arrested person shall not be subjected to more restraint than is necessary to prevent escape. Handcuffing is subject to judicial limitations and must only be used in specific high-risk categories of habitual offenders, escape risks, or serious heinous offences, with recorded justification.

Special Safeguards for Women

The law provides enhanced protections when arresting women:

Presence of a Female Officer: Under Section 43(1) of the BNSS, an arrest of a female must only be carried out by a female police officer, unless circumstances dictate otherwise.
No Night Arrests: Section 43(5) of the BNSS specifies that no woman shall be arrested after sunset and before sunrise, except in exceptional circumstances and only with the prior permission of a first-class Judicial Magistrate.
Medical Examination: Any medical examination of a female arrestee must be conducted strictly by, or under the supervision of, a female medical officer.

Formal Documentation: The Arrest Memo

Codified from the landmark Supreme Court directives in D.K. Basu v. State of West Bengal, every arrest requires the preparation of an Arrest Memo at the time of detention. This document must contain:

The date, exact time, and location of the arrest.
Signatures of at least one witness (a family member or respected member of the locality).
Countersignature of the arrested person confirming they were informed of their rights.

Refusing to prepare an arrest memo or fabricating arrest records is a disciplinary and penal violation for the officer involved.

Legal Remedies If Your Rights Are Infringed

If the police carry out an unlawful arrest, refuse access to counsel, or fail to produce the accused before a magistrate within 24 hours, the following legal avenues are available:

Representation Before the Remand Magistrate: Raise non-compliance of Section 47/48/58 BNSS at the very first production. The magistrate has the authority to refuse remand and release the person.
Habeas Corpus Petition: An urgent writ petition under Article 226 before the High Court (such as the Bombay High Court) can be filed for immediate production and release from unlawful custody.
Complaints to Human Rights Bodies: A formal grievance can be submitted to the National Human Rights Commission (NHRC) or State Human Rights Commission.
Criminal Prosecution: Unlawful confinement and willful assault by a public officer remain punishable offences under the Bharatiya Nyaya Sanhita, 2023 (BNS).

Frequently Asked Questions (FAQs)

1. Can police arrest someone without a warrant under the BNSS?

Yes, but only for "cognizable" offences as provided under Section 35 of the BNSS. For non-cognizable offences, police cannot make an arrest without a valid warrant issued by a competent Magistrate.

2. What should I do if the police refuse to let me call my family or lawyer?

Remember that this is a direct statutory violation of Section 48 of the BNSS. When produced before the Magistrate, immediately inform the court on record that you were denied the right to inform your family and contact counsel.

3. Can I be forced to give a confession while in custody?

No. Under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), confessions made to a police officer are inadmissible as evidence in court. You hold the constitutional right to remain silent under Article 20(3).

4. Can a woman be brought to the police station for questioning at night?

No. As per settled law and statutory provisions, women should not be summoned to a police station at odd hours. Interrogation should take place at their place of residence in the presence of a family member or female officer.

Legal Support in Mumbai, Thane, and Mira Road

Navigating criminal proceedings requires immediate and precise legal intervention. If you, a family member, or an associate are facing detention, interrogation, or arrest, exercising statutory rights without delay can significantly influence the trajectory of bail and defense.

APS Law provides responsive representation for bail applications, quashing petitions, and criminal defense across the courts of Mumbai, Thane, and Mira Road. Contact APS Law today to schedule an urgent consultation.