“Every right is a moral as well as legal entitlement to have or do something”
Every human is born with certain basic rights that he is entitled to for instance, right to live and right to freedom etc. Similarly every citizen of every country is presented with certain rights that are absolutely fair without any prejudice in the spirit of common brotherhood and conscience like the right to life, right to equality, right to freedom, right to education, right to equality, right to freedom of religion and many more. However, the same rights of a person can get surrendered if the person gets detained/ arrested for committing a crime. Although an arrested person too has certain rights that explained below.
The legal system in India is established on the platform of “innocent till proven guilty”. An unlawful arrest of an individual can be a violation of Article- 21 of the Indian Constitution that states, “no human shall be denied of his right to life and personal liberty except if established by law” which means that the process must be fair, clear and not arbitrarily or oppressive.
In this article we will understand the numerous rights that an arrested person has as provided under law prescribed by the Constitution of India:
1 - Right to know the grounds of arrest
2- Right to be produced before the Magistrate without unnecessary delay
3- Right to be released on bail
4- Right to a fair and just trial
The legal provision regarding the right to a fair and just trial can be extracted from the Indian Constitution as well as a lot of Supreme court and High court judgments since no specified law has been stipulated in this regard.
The principle of natural justice must be considered in respect to both the parties.
Similarly, a right to a speedy trial has also been upheld in “Huissainara Khatoon v/s Home Secretary, State of Bihar” where the court observed that “the trial must be disposed of as diligently as possible”.
5- Right to consult a Lawyer
6- Right to free legal aid
Moreover, this right to free legal aid for the accused cannot be refused even when the accused fails to ask for it himself. Now, a key note to remember, if the government is unable to provide free legal aid to the poverty- stricken accused person, then whole trial will stand to be void. The same was firmly established in Sukh Das v/s Arunachal Pradesh where the Court held that, “the right of a poverty- stricken accused person cannot be refused even when the accused fails to apply for the same”.
7- Right to keep quiet
The right to keep quiet does not have any mention in any Indian law, however, its authority can be derived from CrPC as well as the Indian Evidence Act.
The right to stay silent is principally related to the statement and confession made by the accused person in the court. In addition to this, it is the responsibility of the magistrate to perceive if any statement or confession made by the accused person was voluntarily or was after the use of force and manipulation. Therefore, police or any other authority for that matter is not allowed to compel an accused person to speak anything in the court.
8- Right to be examined by a Doctor
The court has complete discretion to order for a medical examination of an accused person at his request and the same is granted by the court when satisfied that the request is not made to delay or defeat justice.
9- Additional rights available to an arrested person
This principle was established to protect the arrested person from cruel and inhuman treatment in the prison.
The police official must not cause death of the accused person while trying to arrest the person except when the person to be arrested is accused of an offence which is punishable with death or life imprisonment or when the accused person is trying to unnecessarily resist his arrest by turning violent and aggressive or when the accused is trying to escape.
The landmark case of D.K. Basu v/s West Bengal and Ors. concentrates on “the rights of an arrested person which further impels the police officer to act in a certain way”.
The court further observed that if the police official is unable to perform his duty properly, then he will be accountable for contempt of court and also for departmental inquiry. Such dispute can be initiated in any High Court that has the jurisdiction over the said dispute.
Regardless of numerous efforts to safeguard an accused person from unnecessary torture and inhuman conduct, number of custodial deaths and police atrocities are still common. Therefore, to overcome this, the Indian Apex court circulated 9 significant guidelines to protect an accused person which also included amendment to numerous sections of the CrPC which are as follows:
Besides this, the police official authorised to make an arrest must prepare a cash memo with complete details of the arrest like the date and time. The same document must have signatures of at least 1 family member or any one honourable person of the locality of the accused. The arrested person has to countersign the cash memo.
The police must inform the person arrested about his right to inform someone immediately when the person is detained or put under custody.
The official diary must also include the name and additional particulars of the police officials under whose custody the arrested person is. Moreover, a medical examination has to be conducted but after the request of the arrested person to put on record any minor or major injuries suffered by the arrested person. This inspection memo is supposed to be signed by both the police officials as well as the arrested person.
The arrested person has the right to meet his lawyer while in prison and during interrogation.
In addition to these, all the copies of the entire documentation must be sent across to the Magistrate for his record which must also include the arrest memo.
The Court in Yoginder Singh v/s State of Punjab observed that for the execution of Article- 21 as well as Article- 22(1) it is imperative that:-
In another landmark case titled, Prem Shukla v/s Delhi Administration, the court observed that “the prisoners/ arrested persons have a right to not be handcuffed in shackles unless and until some extraordinary circumstances arise during the arrest or when in custody”.
India faces a huge problem of illegal arrests as well as custodial deaths which are majorly caused due to illegal arrests. These problems undermine the essence of Article- 21 of the Indian Constitution as well as the fundamental human rights that are available to everyone under the Universal Declaration of Human Rights. The stipulations issued in D.K. Basu v/s West Bengal by the Supreme Court of India are not being properly executed and therefore, it is the need of the hour to try and execute the issued provisions and guidelines properly which can definitely bear better results which would ultimately help decrease the number of an illegal arrests and resulting custodial deaths.