If you are arrested, know your rights

Updated: Feb 18


Every human being is born with the Right to Personal Liberty, Right to Life etc. Human rights are cherished under The Constitution of India, the Universal Declaration of Human Rights, and various other enactments. A person shall not be denied his rights because he/she has been detained. One of our legal system's basic tenets is the benefit of the assumption of innocence of the accused till he is found guilty at the end of a trial. Rights of the accused include many rights like the rights of the accused at the time of arrest, search and seizure, during the trial or any investigation; enquiry of a crime with which he is charged, and he should be protected against or illegal or arbitrary arrest.

Though the police have been given considerable powers for facilitating the making of arrests, the powers are subject to some limitations. These restraints fundamentally provide protection of the person's interests to be arrested and the general public. The imposition of the constraints can be considered, to a degree, as the recognition of the arrested person's rights.

In the landmark judgment of Kishore Singh Ravinder Dev v. State of Rajasthan[1], it was said that the Constitutional, Evidentiary and procedural laws of India have made elaborate provisions for safeguarding the rights of arrested with the view to protect his (accused) dignity as a human being and giving him benefits of a just, impartial and fair trial.

However, in another landmark case of Meneka Gandhi v. Union of India[2], the Court interpreted that the procedure adopted by the state must, therefore, be just, fair and reasonable.


PROVISIONS UNDER THE INDIAN LAW FOR THE ARRESTED

· Right to know the grounds of Arrest-

Firstly, section 50(1) Cr.P.C. provides any person arrested without a warrant has a right to be informed about the cause or grounds of his arrest.

Secondly, when a senior police officer deputes a subordinate officer to arrest a person under Section 55 Cr.P.C., such subordinate officer before making the arrest shall inform the person to be arrested about the information contained in the written order given by the senior police officer clarifying the cause and grounds of his arrest. Not complying with this provision will render the arrest unconstitutional.

Thirdly, in case of arrest is to be made under a warrant, Section 75 of Cr.P.C. provides that any person executing a warrant of arrest shall inform the person to be arrested about the cause and grounds for his arrest and if it is so required, they shall show the warrant. Non-compliance will make the detention unlawful.

The rules emerged from JoginderSingh v. State of U.P[3]. as well as D.K. Basu v. State of West Bengal[4], have been enacted in Section 50-A making it obligatory on the police officer to inform the friend or relative of the arrested person about his arrest etc and also to make an entry in a register maintained by the police. The magistrate is also under the duty to satisfy himself about the police's compliance in this regard.

· The Right To Be Released On Bail-

Section 50(2) of Cr.P.C. provides that where an arrest is made of a person accused of any offence other than a non-bailable offence then he shall be informed of his right to furnish bail for his release by the police officer.

· Rights to a fair trial

Article 14 of the Constitution of India states that "all persons are equal before the law". Right to a fair and speedy trial is recognized in the case of Huissainara Khatoon vs Home Secretary, State of Bihar[5]. The court held that the trial is to be disposed of expeditiously as possible.

· Right To Be Taken Before A Magistrate Without Delay-

Section 76 of the CrPC and Article 22(2) of the Constitution provide that an arrested person shall be produced before the magistrate less than 24 hours of his arrest without unnecessary delay. This law has been created with a view to:

1. To prevent compelling of information or confession by the police.

2. To avoid unnecessary detention.

3. To provide recourse for bail or discharge.

· Right to consult a lawyer-

Section 41D and Section 303 of CrPC, as well as Article 22(1) of the constitution, provides for the right of the arrested person to consult at any stage and be defended by a legal practitioner or lawyer of his own choice.

Although when it appears that the arrested person or accused does not have sufficient means to appoint a pleader, then under Article 39A, the state is obligated to provide free legal aid to ensure justice.

This right has also been elaborated in Khatri (II) VS State of Bihar [6]. The court held that to provide free legal aid to the indigent accused person. The right of the accused person does not expire even when the accused fails to apply for it. In case the state fails to provide legal aid to such an indigent person, it will render the whole trial void.

· Right to keep silence-

This right pertains to the statements and confessions made in court. Under Article 20(2) No person shall be compelled to be a witness against himself or the principle of self-incrimination. Whenever any statement or confession is given in the court, the court must ensure that the person was not compelled to do so. This principle was reiterated in the case of Nandini Satpathy vs P.L Dani [7]. It stated, “No one can force any person to give any statement or to answer questions, and the accused person has a right to keep silent during the process of interrogation".

· Right to be Examined by the medical practitioner-

Section 54 of CrPC gives the right to the accused to be medically examined by a medical practitioner. Under this article, the charged can defend and protect himself. The Supreme Court casts a duty upon the magistrate to inform the arrested person about such right and ask him whether he was subjected to the torture of maltreatment within the lockup.

In D.K Basu vs State of West Bengal and others, this case is a landmark judgment because it focuses "on the arrested person's rights and obligates the police officer to do certain activities". The court also states that if the police officer fails to perform his duty, he will be liable for contempt of court and departmental actions. Such matter can be instituted in any High Court having the jurisdiction over the matter.


CONCLUSION

No democracy can survive without protecting the basic rights that are granted to each and every human. The concept of human rights emerged centuries ago, which slowly started the revolutionary ideas among the thinkers for a better model of governance for its people and with a lot of struggle and sacrifices, that idea solidified into democracy. Right of every man is diminished when the right of one man is threatened and with that, we should never forget that every man deserves human rights.


REFRENCES

[1] 1981 AIR 625, 1981 SCR (1) 995

[2] 1978 AIR 597 1978 SCR (2) 621

[3] 1994 AIR 1349, 1994 SCC (4) 260

[4] (1997) 1 SCC 416

[5] 1981 2 SCR (408)

[6] 1981 AIR 1068, 1981 SCR (3) 145

[7] AIR 1997(1) SCC 416


Submitted by,

Neelansh Arora & Kaanupriya Tyagi,

Vivekananda Institute of Professional Studies.