Your rights when the police arrest you

The Supreme Court's eleven-point D.K. Basu guidelines have governed every arrest in India since 1997. They are now mostly written into the Bharatiya Nagarik Suraksha Sanhita, 2023 — visible name badges, arrest memos, nominee notification, medical examination, twenty-four-hour production. This is what each one means at the police station.

A young man is picked up by the police at eleven in the night. His family hears about it from a neighbour around midnight. By the time they reach the station, no officer admits the boy is there. There is no entry in a register they can see. No name has been given to anyone outside the family. The boy has been in custody for four hours and has had no contact with the outside world. Every one of those four hours is a violation of the law. The Supreme Court spelt out, in 1997, exactly what the police are required to do at every arrest. Most of those requirements are now in the Bharatiya Nagarik Suraksha Sanhita, 2023. They are not paperwork. They are the difference between custody and disappearance.

This guide explains the eleven D.K. Basu guidelines, what each one means at the police station, where each one is most often denied, and where each one is now anchored in the BNSS. The companion guide on this site covers how an arrest must be physically carried out; this one is the reader's pocket checklist for what the law requires the police to do for the arrested person.

The law in plain English

In D.K. Basu v. State of West Bengal (1997), the Supreme Court laid down eleven requirements that bind every police officer making an arrest in India. The Court read these requirements out of Articles 21 and 22 of the Constitution — the right to life and personal liberty, and the right of an arrested person to be informed of the grounds of arrest and to consult a lawyer. The Court said the guidelines apply in addition to any statutory rights, and a violation of any one of them entitles the affected person to compensation in addition to other remedies.

The BNSS, which came into force on 1 July 2024, has folded most of the D.K. Basu requirements into the body of the Code itself. Section 36 of the BNSS [Section 41B of the CrPC] requires the visible name badge and the memorandum of arrest. Section 47 BNSS [Section 50 CrPC] requires the grounds of arrest to be communicated. Section 48 BNSS [Section 50A CrPC] requires a nominee to be informed of the arrest and the place of detention. Section 38 BNSS [Section 41D CrPC] gives the right to meet a lawyer during interrogation. Section 58 BNSS [Section 57 CrPC] enforces the twenty-four-hour rule for production before a Magistrate. The constitutional foundation is Article 22(1) — grounds of arrest — and Article 22(2) — twenty-four-hour production.

The Court in Joginder Kumar v. State of U.P. (1994), three years before D.K. Basu, had already held that no arrest can be made merely because it is lawful to do so. The officer must form a reasonable satisfaction, after some investigation, both as to the complicity of the person and as to the need to effect arrest. Joginder Kumar and D.K. Basu now read together, alongside Section 35 BNSS, are the framework: arrest must be necessary; once made, it must be made within these eleven safeguards.

Step-by-step procedure

What follows is each of the eleven D.K. Basu requirements, in the order they apply at the police station, with the BNSS provision that now backs each one.

Step 1 — Identification of the arresting officers. The police personnel who carry out the arrest and handle interrogation must bear accurate, visible and clear identification and name tags with their designations. This is now Section 36(a) BNSS [Section 41B(a) CrPC]. The particulars of all officers who handle the interrogation must also be recorded in a register at the police station. Without the name tag, the arrested person has no way of identifying the officer in any later complaint.

Step 2 — Memorandum of arrest. The officer carrying out the arrest must prepare a memorandum of arrest at the time of arrest. The memo must record the time and date of arrest. It must be attested by at least one witness, who is either a member of the family of the arrested person or a respectable person of the locality from where the arrest is made. The arrested person countersigns it. This is Section 36(b) BNSS [Section 41B(b) CrPC]. The memo is the foundational document of custody — its existence is what distinguishes a lawful arrest from an unrecorded picking-up.

Step 3 — Right to have a friend or relative informed. A person who has been arrested has the right to have one friend, relative or other person known to him, or having interest in his welfare, informed as soon as practicable that he has been arrested and is being detained at a particular place — unless the attesting witness on the memo of arrest is himself such a person. This is Section 48 BNSS [Section 50A CrPC]. The police officer must inform the arrested person of this right at the time of arrest and is required to make the actual call or message to the nominated person. The Magistrate before whom the arrested person is produced is required to verify that this has been done.

Step 4 — Information to a friend or relative living outside. If the friend, relative or person interested in the welfare of the arrested person lives outside the district or town through which the police officer's organisation operates, the police are required to notify the time, place and venue of the detention by telegraph through the Legal Aid Organisation in the district and the police station of the area concerned, within a period of eight to twelve hours after the arrest. The eight-to-twelve-hour window comes directly from D.K. Basu; the Legal Services Authorities under the eCourts framework are the modern conduit.

Step 5 — Notification of right to inform someone, in plain language. The arrested person must be made aware of the right to have someone informed of his arrest or detention as soon as he is taken into custody. The information must be given in a language the arrested person understands. In practice, this is the right that the arresting officer is most likely to skip — and the right easiest for the arrested person to assert. Speak it out: "I want X to be informed; here is the number."

Step 6 — Entry in the diary at the place of detention. An entry must be made in the diary at the place of detention recording the fact of arrest, the time, the names of all officers in whose custody the arrested person is, and the name of the next friend or relative who has been informed of the arrest. The diary is the police-station record that the arrest happened; without it, the State cannot later show when custody began. The diary entry, if produced before the court, fixes the timeline against which the twenty-four-hour rule is measured.

Step 7 — Inspection memo of injuries. The arrested person should, where he so requests, be examined at the time of arrest and major and minor injuries, if any, present on his body should be recorded. The inspection memo must be signed both by the arrested person and by the police officer effecting the arrest, and its copy must be provided to the arrested person. The point of the inspection memo is to fix what injuries the person had at the moment of entering custody — so that any subsequent injury can be attributed to the custodial period itself.

Step 8 — Medical examination every 48 hours. The arrested person must be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the State Director, Health Services. The 48-hour cycle is intended to detect custodial torture. Sections 51–52 BNSS [Sections 53–54 CrPC] now provide the statutory framework for medical examination of arrested persons; the 48-hour cycle from D.K. Basu continues to bind police behaviour.

Step 9 — Copies of all documents to the Magistrate. Copies of all the documents — the memorandum of arrest, the inspection memo, the diary entries, the medical examination report — must be sent to the area Magistrate for the Magistrate's record. The Magistrate is required to verify, at the first production, that the BNSS arrest formalities have been complied with. This is the chokepoint that turns the paper trail into a judicial check.

Step 10 — Right to meet a lawyer during interrogation. The arrested person may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. This is now Section 38 BNSS [Section 41D CrPC]. The lawyer can be present at the police station and can confer with the client; the lawyer is not entitled to sit through every minute of every interrogation, but the client cannot be denied access altogether.

Step 11 — Police control rooms at every district and at the State headquarters. A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest within twelve hours of effecting the arrest, and this information shall be displayed on a conspicuous notice board at the police control room. Section 37 BNSS [Section 41C CrPC] makes this a statutory duty of the State Government. The notice board is the most basic transparency mechanism: anyone looking for a person who has been picked up can walk to the district control room and check the board.

What to watch for

The eleven guidelines are written, statutory and constitutional. The places they get diluted are familiar to anyone who has dealt with a station-level arrest.

The "informal detention." An officer asks the person to come along to the station and detains him there without recording an arrest. Once the person's movement is restricted at the station, he is in custody, irrespective of whether the officer used the word "arrest." The D.K. Basu eleven apply from the moment of restraint, not from the moment a register is filled in. If a person you know has been taken to a station and is not being allowed to leave, ask for the memorandum of arrest. If there is no memorandum, the detention is unlawful.

The attesting witness who has no connection to the locality. The memorandum of arrest is supposed to be attested by a family member of the arrested person or a respectable member of the locality where the arrest is made. In practice, a constable or a person picked up off the street outside the police station sometimes signs as attesting witness. The point of the requirement — independent verification by someone who knows the arrested person or the place — is defeated when the witness has no connection to either.

The nominated person is never actually told. The arrested person nominates a relative; the officer notes it down; no call is made. The relative learns of the arrest hours later from a neighbour or from a lawyer. Section 48 BNSS makes the actual notification mandatory, and the Magistrate at first production has the duty to verify it. If the call was never made, raise it before the Magistrate at the first production.

The grounds of arrest are given in a language the person does not understand. The arrested person has a right under Article 22(1) of the Constitution to be told the grounds of arrest. If those grounds are read out in English or in a court-language he does not follow, he has not been informed. The Supreme Court's recent line of cases on the language of communication — beginning with the right of foreigners and labour migrants to be informed in a language they understand — makes this a live right. If the grounds were not communicated in the person's working language, that fact goes on record at the first production.

The inspection memo is treated as optional. The inspection memo of injuries at the moment of arrest is the most overlooked of the eleven guidelines. It is also the one that decides almost every custodial-violence case. Without an inspection memo recording the absence of injuries at the moment of entering custody, the State cannot rebut a later claim that injuries were inflicted during interrogation. Ask for the inspection memo. If the officer says it is not done, write that down.

The 24-hour clock is treated as a 24-hour-minus-travel clock. Article 22(2) of the Constitution, and Section 58 BNSS [Section 57 CrPC], permit only the time necessary for travel from the place of arrest to the Magistrate's court to be excluded from the 24-hour count. Delays at the police station — for interrogation, for paperwork, for the convenience of officers — do not count as travel time. A 26-hour or 30-hour custody before production is not within the law because the police were busy. It is a violation of Article 22(2), and a habeas corpus petition lies.

If things go wrong

Where one or more of the eleven safeguards has been violated, three remedies are available.

Habeas corpus before the High Court. A petition under Article 226 of the Constitution can be filed by a relative, friend or lawyer for the immediate production and release of the detained person. The High Court can also direct that the BNSS formalities be carried out and that the arrested person be produced before the Magistrate. The Supreme Court has the same jurisdiction under Article 32. A habeas corpus petition is the fastest remedy when the arrested person has been moved between stations or his location has not been communicated.

Application before the Magistrate at first production. The Magistrate has an independent duty to verify that the BNSS arrest formalities have been carried out. The arrested person, through his lawyer, can place on record any failure — no memorandum, no nominee call, no inspection memo, no medical examination, no name tag. Where the formalities have failed, the Magistrate can refuse remand and order release. The application is a few paragraphs long; the lawyer or paralegal needs only the facts that are visible in the police record itself.

Complaint to the National or State Human Rights Commission. The NHRC and State Human Rights Commissions accept complaints of custodial illegality and can recommend compensation under their statutory framework. The D.K. Basu guidelines themselves expressly contemplate compensation for any violation. A separate suit for damages for false imprisonment is also available; the bona fides of the officer is no defence where the statutory procedure was not followed.

Resources

Statutory references. BNSS Section 35 (when arrest may be made); Section 36 BNSS [Section 41B CrPC] (procedure and duties of officer making arrest); Section 37 BNSS [Section 41C CrPC] (district and State police control rooms); Section 38 BNSS [Section 41D CrPC] (right to meet advocate during interrogation); Section 47 BNSS [Section 50 CrPC] (right to be informed of grounds and of right to bail); Section 48 BNSS [Section 50A CrPC] (obligation to inform nominee); Sections 51–52 BNSS [Sections 53–54 CrPC] (medical examination of arrested person); Section 58 BNSS [Section 57 CrPC] (production before Magistrate within 24 hours). Constitutional anchors: Article 21 (right to life and personal liberty); Article 22(1) (grounds of arrest and right to consult counsel); Article 22(2) (24-hour production).

Leading judgments. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 — the eleven guidelines. Joginder Kumar v. State of U.P., (1994) 4 SCC 260 — arrest only when necessary. Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535 — handcuffing only where the prisoner is an escape risk or violent.

Where to look for an arrested relative. Section 37 BNSS requires every district to maintain a police control room with a public notice board listing arrested persons. The State control room maintains a database. These are the first two places to check if a relative has not come home. The official India Code text of the BNSS is on indiacode.nic.in.

Where to complain. The National Human Rights Commission accepts complaints at nhrc.nic.in. State Human Rights Commissions accept State-level complaints. The District Legal Services Authority — reachable through ecourts.gov.in — provides legal aid for the arrested person at first production where the family cannot afford a lawyer.

Outcome

The D.K. Basu guidelines turned what was previously a matter of police discretion into a fixed checklist binding on every officer making an arrest in India. Eleven steps, each with a corresponding BNSS provision, each verifiable at the police station and the Magistrate's court. A person arrested in compliance with the checklist has had his constitutional rights honoured; a person arrested in defiance of any part of the checklist has a remedy in habeas corpus, in the Magistrate's court, and before the Human Rights Commission. The framework is in place; the only variable is whether the arrested person and the people around him know to ask.