Some basic rights have been settled by the Supreme Court a long while ago, but citizens need to be reminded of these. At the time of arrest a citizen has a right to demand that the policeman arresting him identity him. It's not automatic that you will be handcuffed, and the law indicates when you should be handcuffed. Secondly, you have a right to inform your relatives. Finally, you have a right to consult with your lawyer. These are three basic rights at the time of the arrest.
Can you ask the policeman who arrests you to identify himself?
Yes, the policeman making the arrest must identify himself? In D K Basu v State of West Bengal (1997 (1) SCC 416) the Supreme Court has held that 'the police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.'
Thus, not only the officer who arrests you, but all policemen who interrogate you must carry clear identification with them. The policeman who arrests you must also let you know the ground of arrest. While making the arrest he is not expected to put handcuffs on you, as they show in the films. He can do this only if it is necessary in order to prevent your escape. Section 49 of the Code provides as follows :
'49. No unnecessary restraint - The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.'
Can you insist that the police inform your relatives / friends of the fact of your arrest?
Suppose that you are a bachelor living alone in an apartment in a city you have recently shifted to. The police have come to arrest you. Can you insist that your near and dear ones be informed? According to the D K Basu judgement, the police officer that carries out the arrest must prepare a memo of arrest at the time of arrest. This arrest memo must be attested by at least one witness. This witness could be a member of your family or a respectable person of the locality from where the arrest has been made. You must countersign this arrest memo. Thus ordinarily your near and dear ones would come to know either directly, or through the person in the locality who has been informed.
In Basu's case, the Court has held it to be the duty of the police to inform you, that you have the right to have someone informed of your arrest or detention as soon as you are put under arrest or detained. It states clearly that ' a person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.'
Right To Legal Advice
After your arrest by the police, you can ask them to allow you to consult your lawyer. In Basu's case the Supreme Court held that ' the arrestee may be permitted to meet his lawyer during interrogation though not throughout the interrogation.' The right to consult a lawyer and have him defend you is in fact a citizen's fundamental right, guaranteed to him by the Constitution. Article 22 (1) reads as follows :
' No person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.'
While you are entitled to speak to and consult with your lawyer while you are in police custody, you will have to pay his fees, as he is privately engaged by you. The Government will not provide you with the free services of a lawyer. In the UK on the other hand a Duty Solicitor scheme is operational for some years now whereby legal aid provides for the services of a lawyer free of cost even at this early stage of the proceedings.
Possibly there are budgetary constraints here, which do not make such a scheme feasible here as yet.
During the course of your trial however you will be entitled to the services of a lawyer at State expense if you cannot afford one. The law in this regard has been clearly laid down in the case of Khatri vs State of Bihar (AIR 1981 SC 928). Regarding the liability of the State of Bihar to provide legal services, the Court observed as follows:
'We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure services on account of indigence and whatever is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but, as pointed out by the Court in Rhen vs Malcolm 337 F Supp. 995 :- 'the law does not permit any Government to deprive its citizens of constitutional rights on a plean of poverty.' It further observed that 'even this right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledge that about 70 percent of the people in rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred upon them by law. There is so much lack of legal awareness that it has always been recognized as one of the principle items of the programme of the Legal Aid movement in the country to promote legal literacy. It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services.'
The Court did however opine that there could be cases where legal aid may not be granted on grounds of social justice. It observed that 'there may be cases involving offences such as economic offences or offences against laws prohibiting prostitution or child abuse and the like where social justice may require that free legal services need not be provided by the State.'