Know Your Powers

'No person shall be deprived of his life or personal liberty except according to procedure established by law'.

Through decades of judicial interpretation, the Supreme Court has infused this article with profound meaning. The phrase "procedure established by law" is not a license for the state to create any procedure it deems fit. The Court has ruled that such a procedure must be "fair, just, reasonable, and devoid of any arbitrariness".

In the context of an arrest, this means that any action taken by the police must strictly adhere to the legally prescribed procedures laid out in the Bharatiya Nagarik Suraksha Sanhita (BNSS) and other relevant statutes. Any deviation from this fair procedure can render the arrest and subsequent detention illegal, constituting a direct violation of a citizen's fundamental rights.

While Article 21 provides the broad principle of liberty, Article 22 provides the specific, non-negotiable rights that protect this liberty at the moment of arrest.

Section 35 of the BNSS details the circumstances under which a police officer may arrest a person without a warrant from a magistrate. This power is primarily exercised for "cognizable offences," which are serious crimes. However, for cognizable offences punishable with imprisonment up to seven years, an arrest is not automatic. The police officer is required to record these reasons for the arrest in writing. If an arrest is not deemed necessary, the officer must issue a "notice of appearance" under Section 35.

Section 36 of the BNSS makes the preparation of a "memorandum of arrest" a mandatory procedure. It must be attested by at least one witness (a family member or a respectable local person), countersigned by the person being arrested, and clearly state the date and time of the arrest. The arresting officer must also wear clear identification.

In the landmark case of D.K. Basu v. State of West Bengal, the Supreme Court laid down eleven mandatory requirements to be followed in all cases of arrest and detention. These guidelines, now enshrined in the BNSS, serve as a citizen's checklist for proper police conduct:

1. Clear Identification: Police personnel must wear clear and visible identification and name tags.
2. Arrest Memo: An arresting officer must prepare a memo of arrest at the time of arrest.
3. Right to Inform a Friend/Relative: The arrested person is entitled to have one friend or relative informed.
4. Notification for Out-of-District Family: Must be notified within 8 to 12 hours.
5. Awareness of Right to Inform: The arrested person must be made aware of their right.
6. Diary Entry: An entry must be made in the station diary.
7. Medical Examination on Request: The arrestee has the right to request a medical examination.
8. Periodic Medical Examination: The arrestee must be subjected to a medical examination every 48 hours.
9. Documents to Magistrate: Copies of all documents must be sent to the magistrate.
10. Right to Meet Lawyer: The arrestee must be permitted to meet their lawyer during interrogation.
11. Police Control Room Notification: Information regarding the arrest must be communicated within 12 hours.

Legal Basis: Article 22(1) of the Constitution and Section 49 of the BNSS.
Strategic Importance: This is the first and most critical question. The answer helps you understand the nature of the accusation and begin formulating a defence.

Legal Basis: Section 50 of the BNSS and the D.K. Basu guidelines.
Strategic Importance: This action immediately breaks the isolation of custody. It creates an external witness to your detention, significantly reducing the risk of illegal confinement.

Legal Basis: Article 22(1) of the Constitution, Section 37 of the BNSS.
Free Legal Aid: If you cannot afford a lawyer, you have a constitutional right to free legal aid. You should inform the magistrate.

Legal Basis: Article 20(3) of the Constitution.
Strategic Importance: This fundamental right protects you from coerced confessions, which are inadmissible as evidence in court.

Legal Basis: Section 53 of the BNSS.
Strategic Importance: This is a powerful safeguard against custodial violence. It creates an official record of your physical condition at the time of arrest.

Action: Make a mental or written note of the exact time of your arrest. If you are not produced before a magistrate within 24 hours, your continued detention becomes illegal.
Strategic Importance: This is the most critical check on police power, ensuring that a neutral judicial authority reviews the legality of your arrest promptly.

The BNSS lays down strict rules to safeguard the dignity and safety of women during arrest:

• Prohibition on Night Arrest (Section 43(1) BNSS): Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise. This requires prior permission from a Judicial Magistrate.
• Presence of a Female Officer: As far as is practicable, an arrest of a woman must be made by a female police officer.
• Respect for Dignity: A male police officer is prohibited from touching the person of a woman during an arrest.
• Search and Medical Examination: Any physical search of a woman must be conducted by another woman with strict regard to decency. Similarly, any medical examination must be carried out by a female medical officer.
• Questioning at Residence (Section 179 BNSS): A woman cannot be summoned to a police station for questioning. The police must conduct the questioning at her place of residence.

Children are treated under a separate legal framework, the Juvenile Justice Act, which prioritizes rehabilitation over punishment. Key protections include:

• A juvenile cannot be tried alongside adult offenders.
• The identity of a juvenile involved in any proceeding cannot be published.
• Bail is the norm, and its denial is the exception.
• Police are advised to avoid using force during the arrest of a juvenile and should associate respectable citizens in the process to minimize fear and trauma.

Bailable Offence (Section 480 BNSS): For less serious offences, bail is a matter of right. If you are arrested for such an offence, the police officer is legally bound to inform you of your right to bail.

Non-Bailable Offence: For more serious offences, bail is not a right but is granted at the discretion of the court. The court will consider several factors, including the gravity of the offence, the evidence against the accused, and the risk of them fleeing justice.

Regular bail is sought after a person has been arrested and is in police or judicial custody. The process:

• Engage a Lawyer: The first and most critical step.
• Draft Application: The lawyer will draft a formal bail application with the facts of the case and strong legal grounds for granting bail.
• Filing and Hearing: The application is filed in the appropriate court, where the defence and prosecution will present their arguments.
• Order: The court will issue an order either granting or denying bail. If granted, the court will specify the bail amount and conditions.

Anticipatory bail is a unique provision that allows a person to seek bail in anticipation of a possible arrest. It is a pre-arrest remedy for someone who has a "reason to believe" they may be arrested on an accusation of having committed a non-bailable offence.

An application for anticipatory bail can only be filed in a Court of Session or a High Court. The application must clearly state the reasons for apprehending arrest, such as false implication due to enmity or a frivolous complaint.

The law sets a deadline for the police to complete their investigation and file a charge sheet (typically 60 days or 90 days). If the police fail to file the charge sheet within this stipulated period, the accused acquires an absolute and indefeasible right to be released on bail.

This is not an automatic right; it must be actively claimed. The moment the 60 or 90-day period expires without a charge sheet being filed, the lawyer for the accused must immediately file an application for default bail.

The Tactic: During a 'routine' check, drugs are planted in your vehicle, home, or pocket, and police claim to have "found" them.

The Goal: To get you arrested under a very strict law where getting bail is extremely difficult.

The writ of habeas corpus, Latin for "to produce the body," is the judiciary's emergency intervention tool. It is a writ issued by the Supreme Court or a High Court to command the detaining authority to produce the detained person before the court and justify the detention. Crucially, it can be filed by a third party like a friend or relative, making it a true "guardian of personal freedom".

In cases where an arrest or detention is proven to be illegal and a violation of fundamental rights under Article 21, the Supreme Court and High Courts have the power to award monetary compensation to the victim.

If a Station House Officer (SHO) or other junior officer engages in misconduct, a written complaint can be made to a senior police officer, such as the Superintendent of Police (SP). A powerful way to bypass police inaction is to file a direct criminal complaint with the jurisdictional Magistrate.

As a result of the Supreme Court's directives, Police Complaints Authorities (PCAs) were mandated to be established at both the state and district levels. These are independent bodies designed to inquire into public complaints against police misconduct. The Telangana State Police Complaint Authority (SPCA) was inaugurated in August 2025.

The NHRC is an independent statutory body with the mandate to promote and protect human rights. It can investigate complaints of human rights violations, including illegal arrest and custodial torture. The most convenient method is to file a complaint online through the HRCNet Portal (hrcnet.nic.in).