Article 21 of the Constitution guarantees that no one is deprived of life or personal liberty except by a procedure established by law. That procedure is now mainly in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), together with Article 22 and Supreme Court guidelines. Here is what the law says.
1. Police often must give notice instead of arresting
For offences punishable with up to 7 years' imprisonment, police can't arrest just because a complaint was made. They must be satisfied that arrest is necessary, for example to prevent further offences or tampering with evidence, and must record reasons. Otherwise they must issue a notice of appearance (BNSS s.35(3), old CrPC s.41A). If you comply with the notice, you generally shouldn't be arrested. The Supreme Court enforced this in Arnesh Kumar v. State of Bihar (2014).
For offences punishable with less than 3 years, a person who is infirm or above 60 can't be arrested without permission from an officer not below the rank of Deputy Superintendent of Police (s.35(7)).
2. You must be told why you are being arrested
Police must tell you the full particulars of the offence or the grounds of arrest. If the offence is bailable, they must also tell you that you are entitled to bail and can arrange sureties (BNSS s.47, Article 22(1)).
3. Arrest memo and identification
The arresting officer must carry clear identification showing their name. They must prepare an arrest memo that is attested by at least one witness (a family member or a respectable local person) and countersigned by you (s.36). This comes from D.K. Basu v. State of West Bengal.
4. Your family must be informed
Police must inform a relative, friend or person you nominate about your arrest and where you are being held (s.48). Information about arrests is also displayed in the district and police station control rooms.
5. The 24-hour rule
You must be produced before a Magistrate within 24 hours of arrest, excluding travel time. You can't be held longer without the Magistrate's order (Article 22(2), BNSS s.58). Further custody, whether police or judicial, needs a remand order.
6. Right to a lawyer
You have the right to consult a lawyer of your choice (Article 22(1)) and to meet your advocate during interrogation, though not throughout it (s.38). If you can't afford one, you are entitled to free legal aid (see below).
7. Medical examination
You have the right to be medically examined by a registered medical practitioner. This protects you and creates a record of any injuries (ss.51–53). A woman may only be examined by, or under the supervision of, a female medical practitioner.
8. Special protections for women
- Only a woman officer may search a woman, with strict regard to decency.
- Except in exceptional circumstances, no woman may be arrested after sunset or before sunrise. Where it is necessary, a woman police officer must get prior permission from the Judicial Magistrate (s.43(5)).
9. Free legal aid
Every person in custody is entitled to free legal services under Section 12 of the Legal Services Authorities Act, 1987, whatever their income. Ask the Magistrate or contact the District Legal Services Authority. The national legal aid helpline is 15100.
What you should do if arrested
- Stay calm and don't physically resist, even if you think the arrest is wrong.
- Ask what you are being arrested for and whether the offence is bailable.
- Read the arrest memo before signing, and ask that a family member be informed.
- Ask for a lawyer. You are not required to incriminate yourself (Article 20(3)), and a confession to police isn't admissible as evidence.
- Tell the Magistrate if you were mistreated, and ask for a medical examination.
Frequently asked questions
How long can police keep me without producing me before a court?
No more than 24 hours, excluding travel time to the Magistrate's court, under Article 22(2) of the Constitution and Section 58 of the BNSS.
Can police arrest a woman at night?
Ordinarily no. Under BNSS Section 43(5), a woman can't be arrested after sunset or before sunrise except in exceptional circumstances, and then only by a woman officer with prior permission of the Judicial Magistrate.
Do I get a free lawyer if I am arrested?
Yes. Every person in custody is entitled to free legal aid under Section 12 of the Legal Services Authorities Act, 1987. Call the legal aid helpline 15100 or ask the Magistrate.
What is a notice under Section 35(3) BNSS?
It is a notice asking you to appear before police instead of being arrested. It is used for offences punishable with up to seven years where arrest isn't necessary. It replaced Section 41A of the CrPC.