Legal Guide by Akinchan Aggarwal, Advocate — B.A. (Hons.), LL.B. (Gold Medalist), LL.M. (Disputes Resolution), UGC-NET, Ph.D. (Pursuing)
An arrest is the sharpest power the State can exercise over an ordinary citizen. In a single moment, a person’s liberty, reputation, livelihood and family life can all be put at risk — often before a single charge has been proved.
That is precisely why the law does not leave arrest to the unchecked discretion of the police. The Constitution, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — which replaced the Code of Criminal Procedure, 1973 with effect from 1 July 2024 — and a long line of Supreme Court judgments together create a set of rights that belong to every arrested person, whoever they are and whatever they are accused of.
This guide sets out those rights in plain language, with the correct BNSS provisions and the leading case law, including the Supreme Court’s important 2024 and 2025 rulings on the grounds of arrest.
1. The Constitutional Foundation
Three Articles of the Constitution do the heavy lifting.
Article 21 — Life and personal liberty
No person shall be deprived of life or personal liberty except according to procedure established by law. Since Maneka Gandhi, that procedure must be fair, just and reasonable — not arbitrary or oppressive. Every right discussed below ultimately draws its force from Article 21.
Article 22(1) — Grounds of arrest and legal representation
A person who is arrested must be:
- informed, as soon as may be, of the grounds of arrest; and
- allowed to consult and be defended by a legal practitioner of his choice.
Article 22(2) — Production within 24 hours
Every arrested person must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time necessary for the journey. No person may be detained beyond that period without the Magistrate’s authority.
Article 20(3) — Right against self-incrimination
No person accused of an offence shall be compelled to be a witness against himself. In Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, the Supreme Court held that this protection extends to the stage of police interrogation and not merely to the courtroom, and that a person may decline to answer questions that have a reasonable tendency to expose them to criminal charges.
In Selvi v. State of Karnataka, (2010) 7 SCC 263, the Court held that narco-analysis, polygraph and brain-mapping tests cannot be conducted without consent, as compulsory administration violates Article 20(3) and the right to privacy under Article 21.
2. Arrest Is Not Automatic — The Right Not to Be Arrested Unnecessarily
The single most misunderstood point about arrest is this: the power to arrest is not the same as the necessity to arrest.
In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, the Supreme Court held that no arrest should be made merely because it is lawful to do so. The police officer must be able to justify why the arrest was necessary. Arrest causes incalculable harm to reputation and self-esteem, and a person is not to be arrested routinely on a mere allegation.
This was carried further in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 — one of the most practically important criminal law judgments in India. For offences punishable with imprisonment of up to seven years, the Court directed that:
- Police officers must not arrest automatically upon registration of an FIR, but must first satisfy themselves of the necessity to arrest under the statutory criteria;
- Officers must fill in a check-list of reasons and forward it to the Magistrate along with the accused;
- The Magistrate must record his own satisfaction before authorising detention; and
- Failure to comply may expose the officer to departmental action and contempt proceedings.
The Court also emphasised the notice of appearance procedure — now contained in Section 35(3) BNSS — under which, in such cases, the police should ordinarily issue a notice directing the person to appear rather than arresting them. A person who complies with the notice is generally not to be arrested.
The BNSS adds a further safeguard in Section 35(7): no person accused of an offence punishable with imprisonment of less than three years, who is infirm or above sixty years of age, shall be arrested without the prior permission of an officer not below the rank of Deputy Superintendent of Police.
3. The Right to Know the Grounds of Arrest
This right has been transformed by recent decisions and now deserves the closest attention.
Section 47 BNSS requires a police officer arresting without a warrant to forthwith communicate to the arrested person the full particulars of the offence and the grounds for arrest, and, in bailable offences, to inform them of their entitlement to be released on bail.
The Supreme Court has, in quick succession, given this constitutional teeth:
- In Prabir Purkayastha v. State (NCT of Delhi), 2024 INSC 414 (decided 15 May 2024), the Court held that the grounds of arrest must be communicated in writing, applying to UAPA the principle earlier laid down under the PMLA in Pankaj Bansal. The arrest memo carried no column for grounds of arrest, and the arrest and consequent remand were held illegal. Significantly, the Court held that such procedural non-compliance cannot be cured by later action.
- In Vihaan Kumar v. State of Haryana, 2025 INSC 162 (decided 7 February 2025), the Court held that failure to communicate the grounds of arrest vitiates the arrest and the subsequent custody. The communication must be meaningful — the basic facts constituting the grounds must be conveyed in a language the arrested person understands. Merely informing a relative, or handing over a bare notice of arrest, does not satisfy Article 22(1). The burden of proving compliance lies on the arresting agency, and a contemporaneous written record is the safest course.
The practical takeaway is blunt: “you know why you are here” is not compliance with the Constitution. Grounds must be specific, meaningful, understood, and preferably in writing.
4. Right to Inform a Person of Your Choice
Secret arrest is the enemy of liberty. Section 48 BNSS obliges the police, immediately on arrest, to give information about the arrest and the place where the arrested person is being held to a relative, friend or such other person as the arrested person may nominate. Notably, the BNSS widens this — the arrested person may nominate any person, not merely a friend or relative.
The police must also inform the arrested person of this right as soon as they are brought to the police station, and an entry must be made in the prescribed register. Under Section 37 BNSS, every police station must designate an officer responsible for maintaining information about arrested persons, and such information must be prominently displayed at the police station and district headquarters.
5. Right to a Lawyer
Article 22(1) guarantees the right to consult and be defended by a legal practitioner of one’s choice. Two provisions matter in practice:
- Section 38 BNSS — an arrested person is entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation. This is a crucial protection at the most vulnerable stage of the process.
- Free legal aid — in Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 98 and Khatri v. State of Bihar, the Supreme Court held that the right to free legal services is an essential ingredient of a fair procedure under Article 21. The State is obliged to provide a lawyer to an accused who cannot afford one, and the Magistrate must inform the accused of this entitlement.
6. Right to Be Produced Before a Magistrate Within 24 Hours
Section 58 BNSS (with Sections 56 and 57) gives statutory shape to Article 22(2): a person arrested without a warrant shall not be detained by the police for more than twenty-four hours without the authority of a Magistrate. The period excludes the time necessary for the journey from the place of arrest to the court, and is computed from the moment of arrest.
This is not a formality. It is the point at which an independent judicial mind first examines whether the detention is justified at all. Detention beyond 24 hours without a Magistrate’s order is illegal detention, and the remedy is a writ of habeas corpus under Article 226 or Article 32.
7. Right to Be Free from Torture and Excessive Restraint
Section 46 BNSS provides that a person arrested shall not be subjected to more restraint than is necessary to prevent escape.
On handcuffs, Section 43(3) BNSS now expressly permits a police officer, having regard to the nature and gravity of the offence, to use handcuffs while arresting or producing before court a person accused of specified offences — including organised crime, terrorist acts, drug-related offences, illegal possession of arms, murder, rape, acid attack, counterfeiting of currency, human trafficking, sexual offences against children, and offences against the State.
Two points must be stressed. First, the provision uses the word “may” — it is an enabling provision, not a mandate, and certainly not a licence for routine or mechanical handcuffing. Second, it operates subject to Article 21; the long-standing constitutional position that handcuffing must be the exception, justified by recorded reasons, continues to inform its exercise.
The D.K. Basu safeguards
In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, the Supreme Court laid down binding requirements for every arrest and detention, including that:
- Police personnel carrying out the arrest must bear accurate, visible and clear identification and name tags, and particulars of all personnel handling interrogation must be recorded;
- An arrest memo must be prepared at the time of arrest, attested by at least one witness (a family member or a respectable person of the locality) and countersigned by the arrested person, bearing the date and time of arrest;
- The arrested person is entitled to have a friend, relative or well-wisher informed of the arrest and the place of detention;
- The arrested person must be examined for injuries at the time of arrest, with an “Inspection Memo” signed by both the arrestee and the officer;
- A medical examination every 48 hours during custody by a doctor from an approved panel; and
- Copies of documents must be sent to the Magistrate for record.
These requirements are reflected in the BNSS — Section 36 (memorandum of arrest and duties of the arresting officer), Section 53 (examination of the arrested person by a medical officer), and Section 55 (the arrested person’s right to have himself examined by a medical practitioner of his choice, particularly to record evidence of ill-treatment). Under Section 56 BNSS, it is the duty of the person having custody to take reasonable care of the health and safety of the arrested person.
8. Special Protections for Women
The law recognises particular vulnerabilities:
- Section 43(5) BNSS — save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise; where such an arrest is necessary, a woman police officer must obtain the prior permission of the Judicial Magistrate of the local jurisdiction by making a written report.
- Where a woman is to be arrested, her submission to custody on an oral intimation is ordinarily presumed, and, unless circumstances require otherwise or the officer is a woman, the police officer shall not touch the person of the woman.
- Section 51 BNSS — where an arrested person is a woman, any search must be made by another woman, with strict regard to decency.
- In Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, the Supreme Court issued directions for the protection of women in police custody, including separate lock-ups guarded by women constables and interrogation only in the presence of a woman police officer.
9. Right to Bail and Against Endless Detention
Where the offence is bailable, release on bail is a right, and the arrested person must be informed of that entitlement under Section 47 BNSS.
For undertrials, Section 479 BNSS is a significant reform. Broadly, where the offence is not punishable with death or life imprisonment, an undertrial who has undergone detention for up to one-half of the maximum period of imprisonment prescribed shall be released on bail; and a first-time offender (never previously convicted) who has undergone up to one-third of that maximum period shall be released on bond. This directly addresses the long-standing scandal of undertrials languishing in prison longer than the sentence they might ever receive.
The right to a speedy trial is itself part of Article 21 — the core holding of Hussainara Khatoon.
10. Remedies When Rights Are Violated
Rights without remedies are decoration. If the safeguards above are breached, the following avenues exist:
- Habeas corpus — a writ petition under Article 226 (High Court) or Article 32 (Supreme Court) challenging illegal detention and seeking release.
- Illegality of the arrest itself — as Prabir Purkayastha and Vihaan Kumar establish, non-communication of grounds vitiates the arrest and the remand that follows, entitling the accused to release.
- Compensation — in D.K. Basu and earlier in Rudul Sah, the Supreme Court recognised that monetary compensation is an appropriate public-law remedy for violation of the fundamental right to life and liberty by State agents.
- Action against the officer — departmental proceedings and contempt of court, as expressly directed in Arnesh Kumar.
- Complaint to the National or State Human Rights Commission, and complaints of custodial violence to the Magistrate, who is empowered to order medical examination.
11. Practical Checklist — If You or Someone You Know Is Arrested
- Ask for the grounds of arrest, and ask for them in writing. You are constitutionally entitled to know the specific facts, not a vague label.
- Note the arrest memo details — date, exact time, place of arrest, and the name and rank of the arresting officers. Ensure a witness attests it.
- Exercise the right to inform someone — nominate a person and confirm they have actually been informed.
- Ask to speak to a lawyer before and during interrogation. If you cannot afford one, ask for free legal aid — and repeat that request before the Magistrate.
- Insist on a medical examination if there is any injury or ill-treatment, and remember the right to be examined by a doctor of your own choice.
- Count the 24 hours. Production before a Magistrate is not a courtesy; it is a constitutional command.
- Do not sign blank or unread papers, and remember that you cannot be compelled to be a witness against yourself.
- Speak to the Magistrate. The first production is the moment to place on record any illegality, custodial violence, or failure to furnish grounds.
Conclusion
The rights of an arrested person are not technicalities that help the guilty escape. They exist because the alternative — unrecorded arrests, secret detention, confessions extracted in closed rooms — is a system in which the innocent have no defence at all.
What has changed most recently is the seriousness with which the courts treat non-compliance. Prabir Purkayastha and Vihaan Kumar make clear that a failure to communicate the grounds of arrest is not a curable irregularity but a defect that invalidates the arrest itself. Read alongside Arnesh Kumar’s insistence that arrest must be necessary and not merely lawful, the message to investigating agencies is unmistakable.
For the citizen, the lesson is simpler still: these rights operate only if they are asserted. Knowing them — calmly, at the right moment — is often the difference between lawful process and lasting injustice.
Disclaimer: This article is intended for general information and legal education only and does not constitute legal advice. The law stated is based on the Constitution of India, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the judgments cited, and readers should refer to the bare provisions and the full text of those judgments. Anyone facing arrest or criminal proceedings should consult a qualified advocate without delay. Please read our Disclaimer for more details.
