Rights of an Arrested Person Under the BNSS and Article 22

A person arrested in India has the right to be told the grounds of arrest, to consult and be defended by a lawyer of choice, and to be produced before the nearest Magistrate within twenty-four hours, all guaranteed by Article 22(1) and (2) of the Constitution. The Bharatiya Nagarik Suraksha Sanhita, 2023 turns these guarantees into working rules: a memo of arrest attested by a witness (section 36), information to a relative or friend (section 48), a meeting with an advocate during interrogation (section 38), a medical examination (section 53), and production before a Magistrate without unnecessary delay (sections 57 and 58). Most of these rules began as the requirements laid down in D.K. Basu v. State of West Bengal and were later written into the Code of Criminal Procedure, from which the BNSS carries them forward.

What does Article 22 guarantee to an arrested person?

Article 22 gives two protections to every arrested person and then carves out two exceptions. Clause (1) says no arrested person shall be detained in custody without being informed, as soon as may be, of the grounds of arrest, nor be denied the right to consult and be defended by a legal practitioner of choice. Clause (2) requires production before the nearest Magistrate within twenty-four hours of arrest, excluding the time needed for the journey, and forbids detention beyond that period without the Magistrate's authority.

Clause (3) withdraws both protections from an enemy alien and from a person arrested or detained under a law providing for preventive detention. Preventive detention has its own safeguards in clauses (4) to (7), including review by an Advisory Board, and those are a separate topic.

Article 22 is not the only source. Article 21 requires that any deprivation of liberty follow a fair, just and reasonable procedure, and it is under Article 21 that the Supreme Court developed most of the custodial safeguards discussed below.

Which BNSS sections protect a person at the time of arrest?

The BNSS spreads arrest safeguards across Chapter V. The table maps each right to its section and to the old Code.

When can the police arrest without a warrant?

For offences punishable with up to seven years, section 35(1)(b) allows arrest without warrant only if the officer has reason to believe the person committed the offence and is satisfied that arrest is necessary for one of five purposes: preventing a further offence, proper investigation, preventing disappearance of or tampering with evidence, preventing inducement or threats to witnesses, or securing presence in court. The officer must record the reasons for arresting, and equally must record reasons for not arresting.

Where arrest is not required, section 35(3) obliges the officer to issue a notice directing the person to appear. A person who complies with the notice is not to be arrested unless the officer records reasons for doing so. Section 35(7) adds a new protection: for an offence punishable with less than three years, a person who is infirm or above sixty years of age cannot be arrested without the prior permission of an officer not below the rank of Deputy Superintendent of Police.

These provisions put into statute the reasoning in Arnesh Kumar v. State of Bihar, where the Supreme Court held that the police must not arrest automatically for offences punishable with up to seven years and that Magistrates must scrutinise the recorded reasons before authorising detention.

What must the police tell an arrested person about the grounds of arrest?

Under section 47, the officer must forthwith communicate full particulars of the offence or other grounds for the arrest, and where the offence is bailable, must tell the person that he is entitled to bail and may arrange sureties. This implements Article 22(1).

The Supreme Court has treated this requirement as mandatory. In Vihaan Kumar v. State of Haryana, decided on 7 February 2025, it held that informing the arrested person of the grounds is a constitutional requirement, not a formality; that the grounds must be communicated effectively and in a language the person understands; that the burden of proving compliance lies on the police; and that non-compliance vitiates the arrest and the remand, which filing a charge sheet does not cure. The appellant was ordered to be released.

Earlier, in Pankaj Bansal v. Union of India (2023) and Prabir Purkayastha v. State (NCT of Delhi) (2024), the Court required written grounds of arrest under the money laundering and anti-terror statutes. In Mihir Rajesh Shah v. State of Maharashtra (2025), a bench extended the written grounds requirement to arrests under any statute and required the grounds to be supplied at least two hours before the person is produced for remand. The Court applied this requirement prospectively, so arrests made before that judgment are not judged by it. This line of cases is still developing, so check the current position before relying on the details in court or in an answer.

What other safeguards apply after arrest?

The safeguards after arrest are aimed at preventing secret detention and custodial violence, the two problems that led to D.K. Basu v. State of West Bengal. In that case the Court laid down eleven requirements for every arrest, including identification tags on police officers, a memo of arrest attested by a witness and countersigned by the arrestee, notice to a friend or relative, medical examination, and an entry in a diary at the place of detention. The Court also held the State liable to pay compensation for custodial violations of Article 21, following Nilabati Behera v. State of Orissa, where sovereign immunity was rejected as a defence to public law compensation.

The BNSS implements these requirements in several sections:

1. Section 36 requires the arresting officer to wear clear identification of name, prepare a memo of arrest attested by a family member or a respectable local person and countersigned by the arrestee, and tell the arrestee of the right to have someone informed.
2. Section 37 requires a police control room in every district and at State level, and a designated officer not below the rank of Assistant Sub-Inspector in every district and police station to maintain and display, including digitally, the names and addresses of persons arrested and the offences charged.
3. Section 48 requires the police to inform a relative, friend or nominated person, and the designated officer in the district, of the arrest and the place of detention, and to record who was informed. Under section 48(4), the Magistrate must check compliance when the person is produced.
4. Section 38 entitles the arrested person to meet an advocate of choice during interrogation, though not throughout the interrogation.
5. Section 53 requires a medical examination soon after arrest by a government medical officer, or a registered medical practitioner if none is available, with a female arrestee examined only by or under the supervision of a female doctor. A copy of the report goes to the arrested person or a nominee.
6. Section 56 places a duty on the person having custody to take reasonable care of the health and safety of the accused.

When can handcuffs be used, and what rules apply to women?

Section 43(3) BNSS permits handcuffing, keeping in view the nature and gravity of the offence, only for a person who is a habitual or repeat offender, has escaped from custody, or is accused of listed offences such as organised crime, terrorist act, drug related crime, illegal possession of arms, murder, rape, acid attack, counterfeiting, human trafficking, sexual offences against children, or offences against the State. Section 46 adds that the arrested person shall not be subjected to more restraint than is necessary to prevent escape.

This list has to be read with Prem Shankar Shukla v. Delhi Administration, which held routine handcuffing of undertrials violative of Articles 14, 19 and 21 and allowed it only where there is no other reasonable way to prevent escape. Section 43(3) uses "may", not "shall", so the decision to handcuff remains a discretion to be justified on the facts. In Vihaan Kumar, the Court took serious note that the appellant had been handcuffed and chained to a hospital bed.

For women, the proviso to section 43(1) presumes submission to custody on oral intimation and forbids a male officer from touching a woman to arrest her unless circumstances require otherwise. Section 43(5) prohibits arresting a woman after sunset and before sunrise except in exceptional circumstances, and even then a woman police officer must make a written report and obtain the prior permission of the Magistrate of the first class within whose local jurisdiction the offence was committed or the arrest is to be made.

How quickly must an arrested person be produced before a Magistrate?

An arrested person must be produced without unnecessary delay, and in no case detained by the police beyond twenty-four hours, excluding journey time, without a Magistrate's order under section 187. Section 57 requires the police to take the arrested person before a Magistrate having jurisdiction or the officer in charge of a police station, and section 58 sets the twenty-four hour limit that mirrors Article 22(2).

Any further detention needs a remand order under section 187, which requires the accused to be produced in person the first time police custody is sought. The production is also the Magistrate's opportunity to check the memo of arrest, the information to relatives under section 48, and the recorded reasons for arrest under section 35.

What should the family of an arrested person do?

These steps reflect the rights above and are the ones a lawyer will usually take first.

1. Ask for a copy of the memo of arrest and the name of the police station where the person is held; the district control room under section 37 should have this information.
2. Engage an advocate, who can meet the person during interrogation under section 38.
3. If the offence is bailable, offer bail at the police station under sections 47(2) and 478.
4. Ensure production before the Magistrate within twenty-four hours, and raise any violation of sections 35, 36, 47 or 48 at that hearing.
5. Ask for the medical examination report under section 53(3).

The LegalFirms guide on the rights of an arrested person explains these steps in plain language for families, and specific questions can be put to a verified advocate through the criminal law section of Ask a Lawyer. This is general information; for a specific case, consult a lawyer.

How do examiners test arrest rights?

Prelims questions tend to test the exact wording: "during interrogation, though not throughout" in section 38, the sixty-year and three-year thresholds in section 35(7), the rank of the designated officer in section 37, the exceptions in Article 22(3), and the exclusion of journey time from the twenty-four hours. Expect options that drop a qualifier.

In mains, a fact pattern about an arrest at midnight, or of an elderly person for a minor offence, or without a memo of arrest, is an invitation to list each violated provision with its case law. A frequent error is treating section 38 as a right to have a lawyer present throughout questioning. Another is saying Article 22 protects persons held under preventive detention laws in the same way, which clause (3) rules out.

Key points to remember

• Article 22(1) guarantees grounds of arrest and a lawyer of choice; Article 22(2) requires production within twenty-four hours, excluding journey time.
• Section 47 BNSS requires full particulars of the grounds and, for bailable offences, information about the right to bail.
• Vihaan Kumar (2025) holds that failure to inform the grounds vitiates the arrest and remand.
• Section 35(7) bars arrest of infirm persons or those above sixty for offences under three years without DSP permission.
• Section 38 allows an advocate during interrogation, but not throughout it.
• Handcuffing under section 43(3) is limited to listed categories and remains subject to Prem Shankar Shukla.
• No woman may be arrested between sunset and sunrise except in exceptional circumstances with prior Magistrate permission.

Where to go next

Work through the BNSS mock tests for the numerical details of Chapter V, and the constitutional law mock tests for Article 22 and its exceptions. Then read the full D.K. Basu judgment page and compare its eleven requirements with sections 36 to 38 and 48 of the BNSS.