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What Are The Legal Rights Of An Indian Citizen If Arrested; Especially Women?

Posted: February 16, 2021
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It is always advisable to know your legal rights in case of any eventuality. What are the rights of an arrested person in India, and especially if a woman?

Disha Ravi, a 21 year old student activist was arrested recently, and later sent to 5 days custody, over a shared document to help farmers protest against new agricultural laws, now infamously known as the Toolkit, and has been accused on sedition charges. According to senior lawyer Rebecca John, she hasn’t received the legal rights of an arrested person.

The arrest has been condemned by Indians as well as by global personalities who have been supporting the ongoing farmers movement, like the niece of the US VP Kamala Harris, and writer Meena Harris who said in a tweet, “….ask why activists are being targeted and silenced by the government.”

There are some who are in support of the arrest. For example, Anil Vij, a BJP minister in the Haryana government has said that anyone who has a “seed of opposition against the country” must be uprooted, whether it is Disha Ravi or someone else. (English paraphrase).

Also just a month Nodeep Kaur, a young Dalit activist made national and international headlines as she was arrested on January 12, 2021 from the farmers’ protests on charges of attempt to murder, rioting, and assault to deter a public servant from discharge of his duty and others. She is still in custody.

The case against Disha Ravi and others

After Ravi’s arrest, two more activists are wanted by the police in the case involving the “toolkit”, one of them another woman activist from Mumbai, Nikita Jacob.

In a facebook post, senior lawyer Rebecca John wrote, “Magistrates must take their duties of Remand seriously and ensure that the mandate of Article 22 of the constitution is scrupulously followed.” She added that if the accused was not being represented by counsel at the hearing, the magistrate should have waited till her counsel arrived or provided her with legal aid.

How dissenting women are particularly vulnerable in the system

In India we have had a long history of illustrious women protestors right from before the freedom movement. The legendary travails of women activists like Soni Sori, Sudha Bharadwaj are well known.

Sadly, in current day India the binaries are often drawn so hard that women in opposition to anything that is institutional often bear the brunt of a state crackdown the most. They are the most affected ‘Andolanjeevi’ in any andolan/protest because in them, the various intersections of religion, caste and gender collide.

Not much long ago Safoora Zargar, 27, an M.Phil. Student at Jamia Milia, Delhi, was arrested on April 10, 2020 on ‘conspiracy charges’ over the riots that broke out in February 2020 in Delhi during the Citizenship Amendment Act protests. She was three months pregnant at that time.

Nodeep Kaur has allegedly been sexually and physically abused in custody, even as many Indians as well as global persons have been calling out for her release.

Rights of an arrested person

Indian judicial system is bound by the basic tenet for all accused- innocent until proven guilty. The various laws state : –

  • Right to know their grounds of arrest under Article 22(1) and other sections of Code of Criminal Procedure (CrPC)
  • Right to be produced before the Magistrate without unnecessary delay under Article 22(2) and other sections of CrPC
  • Right to get released on bail by making arrangement for the sureties when arrested without a warrant for an offence other than a non-cognizable offence.
  • Right to choose and elect their own lawyer to defend them Article 22(1)
  • No person whether accused or not, can be compelled to be a witness against himself Article 20(2)

There are several other rights of an arrested person like maintaining reasonable heath care and safety of every arrested person. However, many arrests violate these laws, and also the Universal Declaration of Human Rights.

There are no specific provisions on the arrest of DBA persons [SC/ST people and/or women], but taking suo motu notice of Nodeep Kaur’s arrest, the Punjab and Haryana High court has issued a notice of motion to the Haryana government, seeking its reply regarding the alleged “Illegal confinement” of Kaur by February 24.

In addition, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 can be invoked in case someone, “institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe.”

Rights of an arrested person if a woman

National Human Rights Commission guidelines on arrest direct that as far as practicable, women police officers should be there when women are arrested, and arrest of women between sunset or sunrise should be avoided.

Besides Article 22 there are some other gender specific provisions by law for women to be arrested, few of them being

  • Arrested women are segregated from men and kept in women’s lock-up in the police station.
  • When it is necessary to cause a woman to be searched, the search shall be by another woman with strict regard to decency.
  • Women should be guarded by women constables/police officers. They must be questioned in the presence of policewomen.
  • All necessary pre-natal and post-natal care should be provided to women who are arrested.

Sadly, often these are violated, followed partially or not followed at all. In this particular case, the Quint reports that a transit remand was NOT obtained by Delhi Police when it took Disha Ravi into custody in Bengaluru and brought her to Delhi, and that would imply unlawful custody.

Several margins add up to the discrimination women face when they come in a conflict zone with the regime. The Constitution of India grants equality to women and also has measures of positive discrimination in favour of women. Often, we witness public outrage, with the emergence of hashtags, and campaigns in support of women, but it doesn’t lead to anything long term or substantial. Access to justice is a basic principle of the rule of law, often denied to women.

Women’s rights at the end of the day are human rights and must be upheld even when they are in custody or imprisonment, or in any stage of the judicial process. As Eleanor Roosevelt rightly said-

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world.”

Image source: Facebook

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Pooja Priyamvada is a columnist, professional translator and an online content and Social Media consultant.

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