India’s arrest safeguards are again under scrutiny after police arrested more than 100 students two days after the government promised in writing to withdraw cases against non-violent demonstrators, organisers said. The July 25 assurance had ended seven weeks of protests at Jantar Mantar. Such episodes undermine the legitimacy of law enforcement and erode public trust in government. Some may see it as a retaliatory measure by the government and others describe it as rightful police action against offenders who took advantage of the protest to charge at police. A few videos show police struggling against a crowd and being injured while maintaining order. These incidents warrant a fresh look at India’s arrest jurisprudence in terms of constitutional and statutory compliance during arrest and prompt a discussion of the rights of arrested persons and guidelines directed to police officials from time to time by the Supreme Court to protect the dignity of every citizen and ensure the “Nagarik Suraksha” (words taken from the new law, Bharatiya Nagarik Suraksha Sanhita, 2023) in our country.
Constitutional promise
Every arrest made by the state must comply with the constitutional norms. The manner of arrest is tested as per the guarantees provided to arrested persons under Articles 14, 21 and 22 of The Constitution of India, 1950. Article 21 protects life and personal liberty which includes right to be treated with human dignity, even in custody. Justice P.N. Bhagwati, later chief justice of India, in the case of Francis Coralie Mullin v. Union Territory of Delhi (1981 SC), had opined that right to life under article 21 is not confined to mere physical survival but also includes right to live with human dignity. But we also know, these rights are subject to the restrictions of procedure established by law, i.e. any procedure enacted by the competent legislature. The seven-judge bench in the case of Maneka Gandhi v. Union of India (1978 SC), held that the procedure by which the state is depriving the right to life and personal liberty should be just, fair and reasonable and must not be arbitrary. The ruling gave constitutional spine to every judgement deciding the reasonability of arrest and rights of arrested person by police officers. For example, consider Joginder Kumar, D.K. Basu, Arnesh Kumar, etc. All these cases focus upon the rightful manner of arrest as per the statutory rules. Most recently, the same logic was extended in the case of Mihir Rajesh Shah v. State of Maharashtra (2025 SC). In that case, the court ruled that every arrested person must be informed of grounds of arrest (right emanating from Article 22).
Article 22 is a significant provision under Indian Constitution which guarantees rights of arrested person where it is provided that he should be informed of the grounds of arrest; he has right to consult an advocate of his choice and right to be produced before the magistrate within 24 hours of his arrest. Hence, it is pertinent to mention that none of these provisions are mere suggestion to police but a command to the state to perform their obligations in a responsible manner.
Statutory promise
The newly framed BNSS, 2023, has replaced CrPC, 1973, but it does not mean that the rulings or directions passed by the apex court to follow the procedural law in letter and spirit has been nullified. BNSS, 2023, has still retained those provisions where various safeguards are provided to arrested persons. The guidelines of Joginder Kumar and DK Basu remain in force.
In the name of decolonization of criminal laws, a few provisions are incorporated, empowering police officials permitting them to handcuff [Section 43(3) of BNSS], during arrest for specified category of offenses. But, as per the guidelines of Prem Shankar Shukla v. Delhi Administration (1980), these powers are not without exceptions and shall be used sparingly keeping in mind the norms of basic human rights.
The most important provisions under BNSS highlighting the rights of arrested person are Sections 35(1)(a), (d) and (g); 47, 53, 54, 55, 56, 57, 58, 62 and 340. Clauses (a), (d) and (g) of section 35(1) clearly show that the police have very wide powers of making arrests without warrant in respect of cognizable offenses. However, these powers are not without limitations. The requirement of reasonability and credibility would hopefully prevent the misuse of such powers. The word “reasonable” brings in the requirement of honest belief based on facts. The words “reasonable” and “credible” have reference to the mind of the police officer receiving information, and such information must afford sufficient materials for the exercise of an independent judgment at the time of making arrest. The police certainly have no power to arrest persons without warrant on the chance of something being thereafter proved against such persons. It may be noted that malicious and excessive exercise of the powers of arrest under these sections would be punishable under Section 258 of Bharatiya Nyaya Sanhita, 2023 (BNS). Further, a newly included clause 7 of Section 35 of BNSS is a legislative safeguard introduced by the Parliament to protect elderly and infirm persons from unnecessary arrest in cases involving relatively less serious offences.
Section 47 of BNSS is written with an intent to ensure that an arrested person is not left ignorant of the reasons for the deprivation of his liberty. The provision seeks to guarantee the right to legal representation and immediate access to bail wherever permissible. Similarly, in case of arrest to be made under a warrant, Sec. 77 of BNSS provides that “the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested.” Recently, in a case of Kasireddy Upender Reddy v. State of Andhra Pradesh & Ors. (2025 SC), the Supreme Court has held that if a person is arrested on a warrant, the warrant itself supplies the grounds for the arrest; if the warrant is read over to him, that is sufficient compliance with the requirement that he should be informed of the grounds for his arrest. If he is arrested without a warrant, he must be told why he has been arrested. He must be informed of the precise acts done by him for which he would be tried; informing him merely of the law applicable to such acts would not be enough.
Section 53 of BNSS recognizes that an accused is entitled to seek an independent medical examination where such examination may assist in disproving the prosecution case or establishing that injuries were sustained in police custody. It transforms medical examination from a mere investigative tool into an important instrument for ensuring fairness in criminal proceedings. The second proviso is newly introduced which is intended to preserve the dignity, bodily integrity, privacy and modesty of women during the criminal justice process. It reflects the constitutional commitment that the exercise of police powers must be tempered by respect for gender-sensitive human rights and that the investigation of offences cannot be conducted in a manner that compromises the dignity of women.
Section 55 of BNSS regulates the procedure to be followed when a senior police officer authorizes a subordinate police officer to effect an arrest without warrant in the senior officer’s absence. The provision is intended to ensure that the extraordinary power of arrest is exercised with accountability, transparency and adequate safeguards against arbitrary action.
Although couched in a single sentence, Section 56 is one of the most significant human rights provisions in the BNSS. Under this section, a statutory obligation is imposed upon every police officer or other lawful custodian to ensure that an arrested person is treated with dignity and protected from physical or mental harm while in custody. The expression “person having the custody of an accused” is of wide amplitude. It is not confined to the investigating officer alone. It includes every person who exercises lawful control over the accused, including the arresting officer, the officer in charge of the police station, escort personnel, prison authorities after remand, and any other officer entrusted with the custody of the arrested person. The duty under Section 56 therefore continues throughout the period of lawful custody and is not exhausted immediately after arrest.
Section 57 of BNSS deals with the right to be taken before a magistrate without delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the magistrate. In continuation of this right, Section 58 of BNSS guarantees the right not to be detained more than 24 hours without judicial scrutiny. The right has also been incorporated in the Constitution as one of the fundamental rights under clause 2 of Article 22 of The Constitution of India, 1950.
Following the norms of clause 1 of Article 22, Section 340 of BNSS provides that any person against whom proceedings are instituted under the Code may of right be defended by a pleader of his choice. The right of an arrested person to consult his lawyer begins from the moment of his arrest. The words “of his choice” indicate that no advocate/pleader is to be foisted on the accused and he should be permitted to be defended by a pleader/advocate in whom he has full confidence. In K.M. Wasam v. State of Gujarat (AIR 1974 SC 1143), it was held that the Sessions Judge should view with sufficient seriousness the need to appoint State counsel for undefended accused in grave cases. Therefore, advocates competent to handle cases should be appointed.
Supreme Court on manner of arrest
Since 1980, the Supreme Court has worked to constitutionalize the police power of arrest. The landmark judgement in D.K. Basu v. State of West Bengal (1997 SC), has highlighted the possible safeguards against the abuse of police powers and transformed arrest from a purely procedural act to constitutional obligation to protect the rights of the arrested person. The decision took a serious note of custodial violence and death in police lock-up. The court directed that the state action must be fair, just and reasonable and using any kind of torture to extract information is impermissible. The most important part of the judgement was that the police officer making an arrest should bear an accurate and clear identification and name tags showing their designations, and must prepare an arrest memo at the time of arrest and such memo must be attested by at least one witness (a member of arrestee’s family or a respectable person of the locality from where arrest is made). Further, a person who has been arrested or detained shall be entitled to have one friend/relative/other person known to him or having interest in his welfare being informed as early as possible.
Similarly, the decision in the case of Joginder Kumar v State of Uttar Pradesh (1994 SC), is most significant on the law of arrest in India. It laid the philosophical and constitutional foundation for the principle that the power to arrest is not synonymous with the necessity to arrest. The judgment continues to influence arrest jurisprudence under both the Code of Criminal Procedure, 1973 and the Bharatiya Nagarik Suraksha Sanhita, 2023.
The constitutional emphasis shifted consistently with Arnesh Kumar v State of Bihar (2014 SC), where it was held that following the statutory requirements while making an arrest is a must. It is one of the most influential decisions because of the observation made by the apex court regarding arrest practices. It was stated that arrest is not mandatory merely because an offence is cognizable and non-bailable. The logic is that every arrest must satisfy the tests of necessity, proportionality and reasonableness. This philosophy was reaffirmed in the case of Siddharth v. State of Uttar Pradesh (2021), pointing out the distinction between arrest and investigation process. Police cannot arrest an accused merely because a charge sheet is to be filed before the court. The decision recognized that unnecessary arrests inflict irreversible harm upon reputation, employment and family life, often without advancing the cause of justice. In Satender Kumar Antil v. CBI (2022 SC), the Court went further, reiterating that unnecessary incarceration contributes directly to India’s overwhelming undertrial population and reaffirming that bail, rather than arrest, should ordinarily govern criminal process.
As far as transparency in arrest procedures is concerned, the court in another case of Pankaj Bansal v. Union of India (2023), held that an arrested person must be furnished the grounds of arrest in writing to meaningfully exercise the constitutional right to seek legal remedies. This insistence on written communication reflects the broader constitutional commitment that State power must always remain accountable and transparent.
However, the biggest challenge is that the court cannot do the function of an executive. A court cannot patrol the streets at midnight, supervise every police station, or monitor every arrest in real time. The implementation of constitutional guarantees ultimately depends upon the professionalism, integrity and accountability of the police administration and the executive machinery. Judicial pronouncements, however progressive, achieve their constitutional purpose only when translated into everyday policing through effective training, standard operating procedures, institutional supervision and disciplinary accountability.
Important Suggestions
India should adopt a National Constitutional Policing Standard Operating Procedure (SOP) applicable across all States to translate constitutional guarantees into everyday policing. The SOP should prioritise citizen protection over coercive policing, reflecting the evolving arrest jurisprudence of the Supreme Court.
All police personnel, particularly constables, should undergo mandatory annual training in constitutional rights, human rights, de-escalation techniques, crowd psychology, crisis negotiation, gender sensitivity and juvenile justice. A National Constable Training Manual should be prepared incorporating the principles laid down in Prakash Singh, Joginder Kumar, D.K. Basu, Arnesh Kumar, Siddharth, Pankaj Bansal and the BNSS, 2023.
Peaceful assemblies should be managed through dialogue, persuasion and graded response, with negotiation as the first option. The use of firearms, pellet guns, chemical irritants and other potentially lethal or indiscriminate force should be prohibited against peaceful protesters. Where the use of a baton becomes unavoidable to prevent imminent violence, it should be proportionate, used only as a measure of last resort, and directed, consistent with accepted policing standards and training, at lower limbs while avoiding the head, neck, spine, chest, abdomen and other vulnerable parts of the body except where immediate defense of life is legally justified.
Police interaction with students should emphasize communication, mediation and liaison with educational authorities and parents before any coercive action. Special protection and sensitivity must govern all interactions with children in conflict with law, women, elderly persons and persons with disabilities, strictly complying with applicable statutory safeguards.
Every arrest should be body-worn camera recorded from commencement to completion. Police officers should not seize or switch off an arrested person’s mobile phone except where authorized by law and necessary for investigation, and any such seizure must be documented through a lawful seizure memo while preserving the person’s right to communicate with relatives and legal counsel. Independent judicial review of police action, periodic audits of arrests and strict implementation of the directions in Prakash Singh v. Union of India, (2006 SC), are essential for building a professional, accountable and democratic police service.
Despite this impressive jurisprudence, the gap between constitutional law and police practice remains disturbingly wide. Training often emphasizes investigation, intelligence gathering and public order, while constitutional ethics, communication skills and behavioral discipline receive comparatively little attention. Police reforms cannot succeed through statutory amendments alone; they require institutional transformation.
Dr. Sarvesh Kumar Shahi teaches criminal law at the School of Law, KIIT Deemed to be University, in Bhubaneswar, Odisha, where he is an assistant professor II and heads the department of Criminal Law and Criminal Justice Administration.
