Constitutional Rights Upon Arrest — Article 22

Article 22 of the Constitution of India guarantees every arrested person the following fundamental rights, which cannot be waived:

  1. Right to know the grounds of arrest — the police must inform you as soon as possible why you are being arrested.
  2. Right to consult and be defended by a lawyer of your choice — you cannot be denied access to a legal practitioner.
  3. Right to be produced before a Magistrate within 24 hours — the police cannot hold you longer than 24 hours without presenting you before a Magistrate, who then decides on remand.

DK Basu Guidelines — Now Codified in BNSS 2023

The Supreme Court in DK Basu v. State of West Bengal (1997) laid down specific requirements for lawful arrest. These guidelines are now codified in the BNSS 2023 and mandate:

  • The arresting officer must prepare a memo of arrest, attested by a family member or a respectable member of the locality.
  • The arrested person must be informed of the right to have a friend or relative informed of the arrest.
  • An Arrest Memo must mention the time and place of arrest.
  • The arrested person must be examined medically within 24 hours if they have injuries.
  • The arrested person must be informed of the right to remain silent.

What Police Cannot Do

  • Cannot use excessive force beyond what is necessary to prevent escape.
  • Cannot torture or use third-degree methods — a criminal offence and violation of Article 21.
  • Cannot deny you access to a lawyer — call your lawyer immediately upon arrest.
  • Cannot force you to sign a confession — confessions made to police officers are not admissible as evidence under BNSS.
  • Cannot hold you for more than 24 hours without Magistrate authorisation.
  • Cannot arrest a woman after sunset and before sunrise except in exceptional circumstances and only with written permission of a Judicial Magistrate.

What You Should Do If Arrested

  1. Stay calm. Do not resist or argue aggressively with arresting officers.
  2. Ask for the grounds of arrest. “What offence am I being arrested for?”
  3. Do not sign anything without your lawyer present.
  4. Do not give any oral statement to police without your lawyer.
  5. Call your lawyer immediately — you have an absolute right to do this.
  6. Inform a family member or ask the police to do so.
  7. Note the exact time of arrest — the police must produce you before a Magistrate within 24 hours of that time.

Remand — What Happens Before the Magistrate?

When produced before the Magistrate, the police will seek Police Custody Remand (PCR) — permission to keep you in police custody for further interrogation — or the Magistrate will send you to Judicial Custody (JC) in jail. Your lawyer can and should argue against police custody remand and seek bail at this stage. The first remand hearing is critically important.

Frequently Asked Questions

Can police arrest me without an arrest warrant?

Yes, for cognisable offences (murder, theft, assault, etc.), police have the power to arrest without a warrant. However, even in warrantless arrests, all constitutional rights — grounds of arrest, access to lawyer, production before Magistrate within 24 hours — fully apply.

What if police refuse to let me call my lawyer?

Denying access to a lawyer is a violation of your fundamental right under Article 22(1) of the Constitution. Insist on your right firmly and calmly. Once produced before the Magistrate, immediately inform the Magistrate that access to your lawyer was denied — the Magistrate can take action and will ensure the right is protected from that point.

Can I refuse to answer police questions after arrest?

You have the right against self-incrimination under Article 20(3) of the Constitution. You are not required to make any statement that may incriminate you. However, you must truthfully answer questions about your name and address. For all other questions, consult your lawyer before responding.

If you or a family member has been arrested in Pune, call Advocate Akash Chikate immediately. The first 24 hours are critical — having a lawyer at the remand hearing can make a decisive difference.