Arrested by the Police? 5 Rights Every Person Has Under the BNSS

Most people learn their rights on arrest only after an arrest has already happened, usually that of a son, a husband or a friend, late at night, with no idea what the police are allowed to do. The law is clearer than most people think. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, gives every arrested person certain basic protections. Here are the five that matter most.

1. The right to know why you are being arrested

A police officer arresting a person without a warrant must immediately tell that person the full particulars of the offence, or the other grounds, for which they are being arrested. If the offence is bailable, the officer must also tell the person that they are entitled to be released on bail and may arrange for sureties (Section 47 BNSS, formerly Section 50 CrPC).

The Supreme Court has repeatedly treated this as a constitutional safeguard under Article 22(1) of the Constitution. Asking politely, "What is the offence, and under which section?", is not defiance. It is your right.

2. The right to have your family informed

The police must inform a relative, friend or other person nominated by the arrested person about the arrest and the place of detention, and must record in a register whom they informed (Section 48 BNSS, formerly Section 50A CrPC). The arresting officer must also prepare an arrest memo, attested by at least one witness, such as a family member or a respectable person of the locality, and countersigned by the arrested person (Section 36 BNSS).

3. The right to meet a lawyer

An arrested person is entitled to meet an advocate of their choice during interrogation, though not throughout the interrogation (Section 38 BNSS, formerly Section 41D CrPC). If the person cannot afford a lawyer, they are entitled to free legal aid through the Legal Services Authority (Article 39A of the Constitution and the Legal Services Authorities Act, 1987).

4. Before a Magistrate within 24 hours

No one arrested without a warrant can be kept in police custody for more than 24 hours without being produced before a Magistrate, excluding the time needed for the journey from the place of arrest to the court (Section 58 BNSS, formerly Section 57 CrPC, and Article 22(2) of the Constitution). Any detention beyond that needs a Magistrate's order. This is the stage at which a lawyer can oppose police remand and, where appropriate, apply for bail.

5. Special protection for women

Ordinarily, a woman should not be arrested after sunset and before sunrise. In exceptional circumstances, a woman police officer must make a written report and obtain the prior permission of the Magistrate (Section 43(5) BNSS, formerly Section 46(4) CrPC). Courts have differed on the consequence of a breach: the Madras High Court has held the provision to be directory rather than mandatory, so a breach may not by itself make the arrest illegal, but the police must still explain it. Separately, only a woman officer should touch a woman in the course of an arrest, and women must be kept separately from men in custody.

Other safeguards worth knowing

• The arresting officer must bear an accurate, visible and clear identification of their name (Section 36 BNSS).
• An arrested person is to be medically examined by a medical officer, and any injuries recorded (Section 53 BNSS).
• For many offences punishable with up to seven years, the police are expected first to issue a notice of appearance instead of arresting (Section 35(3) BNSS). See: Received a Police Notice Under Section 35(3) BNSS?
• These rules build on the Supreme Court's well-known guidelines in D.K. Basu v. State of West Bengal (1997), which every police station is expected to follow.

What to do, and what not to do

• Stay calm and do not resist. Physical resistance can lead to further charges and makes the situation worse. Rights are asserted in words and later in court, not by force.
• Ask the grounds of arrest and the police station where you are being taken, and make sure a family member is told.
• Note names of the officers and the time of arrest, and keep a copy or photograph of the arrest memo if possible.
• Do not sign blank papers or statements you have not read.
• Contact a lawyer as early as possible, especially before the first production before the Magistrate.

Rights are not a way to escape a lawful investigation. They exist so that the investigation itself remains lawful. Knowing them protects the innocent, and it protects the integrity of the case against the guilty too.

For what happens after an arrest, see Family Member Arrested? How Regular Bail Works Under the BNSS, and if you fear arrest, Anticipatory Bail: How the Process Works.