India is the largest democracy in the world and the peculiarity of this democratic country is that it offers various fundamental rights even to an arrested person. The legal system of India is considered to be the best one across the globe due to the flexibility that it offers to each and every citizen. The presumption of innocence of the accused is one the basic tenets of India’s legal system that ensures nobody is a culprit until he or she is found guilty on the basis of legal evidences produced in the court during the trial.

The Indian constitution offers some certain rights even to the accused. As per the law, no person can be considered as non-person even if he or she is prima facie seems involved in any kind of crime. The basic theory behind these rights indicates that no government resource should be misused during the trial on any person and proper legal shielding should be ensured for an arrested person. As it is easily understandable that the policing machinery in India is equipped with certain set of powers, and sometimes these powers are used against some innocent persons. Keeping in view the same, these rights have been conferred even upon those who are taken into custody by the police.

Following are the rights of an arrested person:

1. Right to Silence

The ‘right to silence’ is one of the common principles of law that says no court or tribunal can be encouraged to conclude that a person is guilty just because he is not answering the questions raised and asked by the police or by the court. As per the provisions of the law, any statement made by any suspect to the police is not admissible. The general notion about the ‘right to silence’ is considered associated with the confession to a large extent. Any accused or suspect is entitled to break his or her silence before the magistrate voluntarily without any duress.

2. Right to know the reasons or grounds for arrest

Each and every person who is facing an arrest has a legal right to know why he is being taken into custody. Any police officer who is arresting a particular person without warrant needs to have communication with him in greater details about why he is being arrested. Article 22(1) of the Constitution guarantees that no arrested person shall be denied the right to consult, and to be defended by, a legal practitioner of his choice; the Supreme Court in Khatri (II) v. State of Bihar held that the State is also under a duty to provide free legal aid to an accused who cannot afford a lawyer. Under Section 48 of the BNSS, 2023 (formerly Section 50A of the Code of Criminal Procedure, 1973), the arresting officer must also inform a nominated relative or friend of the arrested person about the arrest and the place where the person is being held.

3. Information Regarding the Right To Be Released On Bail

Section 47(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (formerly Section 50(2) of the Code of Criminal Procedure, 1973, which the BNSS replaced with effect from 1 July 2024) has a provision that if a person is arrested by the police in the light of a bailable offense, he should be informed about his entitlement of the release on bail. But it happens only in the cases of bailable offenders only. This provision helps build a healthier relationship between the police and the public and reduces public discontent.

4. Right To Be Taken Before A Magistrate immediately

Another right that an arrested person can exercise is that he should be produced in the court at the earliest regardless of the arrest made under warrant or not.

5. Right of Not Being Detained For More Than 24 Hours

As per the law of land, no person can be detained for more than 24 hours without judicial scrutiny. Whether the arrest is made with warrant or without, it is necessary for the police to produce arrested person into court within 24 hours of the arrest. This is enshrined in Article 22(2) of the Constitution and in Section 58 of the BNSS, 2023 (formerly Section 57 of the Code of Criminal Procedure, 1973).

6. Safeguards against unnecessary arrest

The police cannot arrest a person mechanically. For offences punishable with imprisonment of up to seven years, Section 35(3) of the BNSS, 2023 (formerly Section 41A of the Code of Criminal Procedure, 1973) requires the police, in most cases, to first issue a notice of appearance instead of making an arrest, and the person who complies with the notice should not be arrested unless reasons are recorded. In Arnesh Kumar v. State of Bihar (2014), the Supreme Court reinforced these limits, and in D.K. Basu v. State of West Bengal (1997) it laid down binding requirements for every arrest and detention, such as the preparation of an arrest memo attested by a witness, intimation of the arrest to a relative or friend, and a medical examination of the arrested person.

The fundamental rights of an arrested person