“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 be 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 under law, as prescribed by the Constitution of India:
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 right to keep quiet does not have any mention in any Indian law, however, its authority can be derived from the Constitution’s right against self-incrimination..
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.
Section- 54 of CrPC asserts that if an arrested person claims that medical examination of his body would lead to a detail which would dismiss the fact of commission of the crime by him, or some detail that might lead to evidence towards commission of the crime by some other person against his body, 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.
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 compels 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 a departmental inquiry. Such dispute can be initiated in any High Court that has the jurisdiction over the said case .
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 nine 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 one 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, ultimately assisting in the decrease in number of illegal arrests and resulting custodial deaths.Copyright 2023 – Helpline Law
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