Rights of the Accused under Indian Criminal Law (BNS 2023)

Introduction

In every other criminal justice system, the rights of the accused are as important as punishing the criminal. The Indian justice system, underpinned by constitutional guarantees, guarantees the accused just and respectful treatment. With the coming of the Bharatiya Nyaya Sanhita, 2023 (BNS)—that will replace the IPC—India is trying to reform its criminal laws. Together with the BNSS and BSA, the BNS imparts the rights of the accused in the categories of investigation, trial as well as after conviction based on the constitutional articles of 20, 21 and 22, and enforced by judicial decisions.

1. Constitutional Rights of the Accused

a) Article 20 – Protection in Criminal Proceedings

No Ex-Post Facto Laws : No one can be convicted for an act that was not a crime at the time it was committed
Protection against Double Jeopardy :A person cannot be punished more than once for the same offence.
Right against Self-Incrimination : The accused has the right to remain silent and cannot be forced to confess guilt.

b) Article 21 – Right to Life and Personal Liberty

Includes right to legal aid, fair and speedy trial, protection from torture.

c) Article 22 - Protection of Arrested Persons

Right to be informed of reason for arrest
Right to legal counsel
Right to be produced before magistrate within 24 hours

2. Rights Under Bharatiya Nyaya Sanhita (BNS), 2023

a) Recognition of Reformation and Rehabilitation: The BNS recognizes the importance of corrective punishment rather than harsh retribution. Provisions are included for community service and plea bargaining, especially for first-time and juvenile offenders.

b) Decriminalization and Clarity: BNS scrap colonial and outdated laws (like sedition) and defines ambiguous words clearly so that any misuse of law and harassment of the accused is avoided.

c) Specific Provisions for Women and Children: The BNS mandates sensitive handling of cases involving women, children, and mentally ill persons, ensuring humane treatment of vulnerable accused individuals.

3. Rights Under Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

a) Right to be Informed of Grounds of Arrest (Section 35):The police are obliged to communicate the charges for the arrest forthwith to the accused. In case of the non-bailable offences the accused is to be informed of the right to bail.
b) Right to Legal Aid (Section 304):Where the defendant is without means or cannot afford to hire an attorney, the court is to appoint counsel at State expense. This is an essential right under Article 21.
c) Right to Bail (Sections 480–482): The defendant has a statutory right to make an application for bail, more so in case of bailable offences. Even in non-bailable offences, bail remains at the discretion of the presiding judge depending on the seriousness of the crime and the chances of the accused absconding or tampering with the evidence.
d) Right to be Produced Before Magistrate (Section 58): An accused cannot be kept in the police custody for more than 24 hours without producing him before a magistrate.
e) Right to Fair and Speedy Trial (Section 268): Delays in investigation and trial can be challenged as violations of Article 21. Courts are directed to avoid adjournments and ensure trials are concluded quickly.
f) Right to Silence and Protection from Coerced Confession: No man will be compelled to be a witness against himself. Under the BSA 2023, confessions to the police remain inadmissible unless made in the presence of a magistrate

4. Technological Safeguards under New Laws

a) Mandatory Audio-Video Recording: Confession statements, searches, operations of seizer needs to be video-graphed also so that there is no opportunity of influencing, misleading or recording the false the statement.
b) Digital FIR and Case Tracking: Accused persons can access FIRs and case details through online portals, improving access to justice and procedural transparency.

5. Rights During Trial

a) Right to Cross-Examine Witnesses (Section 138, BSA): Prosecution witnesses can be cross-examined by the accused
b) Right to Be Present at Trial (Section 273, BNSS): The accused is entitled to attend all proceedings in the trial, unless the proceedings are held during his absence.
c) Right to Defence Evidence (Sections 243 & 233, BNSS):The accused has a right to call their own witnesses and produce documents in defense.
d) Right to Presumption of Innocence: Under BSA 2023, the burden of proof lies with the prosecution. The accused is presumed innocent until proven guilty beyond reasonable doubt.

6. Post-Arrest and Prisoner Rights

a) Right Against Custodial Torture: Custodial violence Contravening Article 21 and the Supreme court guidelines in DK Basu v. State of West Bengal, custodial violence is a negation of human rights. Because this case is very, very significant, as you will hear.
b) Right to Medical Examination (Section 54, BNSS): Those who have been arrested are to receive medical examination in order to avoid torture, and to note their current wounds of skin.
c) Right to Appeal: Every convicted accused has the right to appeal against conviction or sentence under BNSS.

7. Landmark Judicial Interpretations

i) Maneka Gandhi v. Union of India (1978)

Facts:

Under the Passport Act, 1967, passport was granted to a journalist, Maneka Gandhi. Later her passport was impounded by the Government “in the interest of the general public” under Section 10(3)© of the Act without affording her an opportunity of being heard or any reasons.

Issues:

Whether right to travel abroad is part of “right to personal liberty” under Article 21?

Whether a law which violates personal freedom also has to meet rational test of articles 14 and 19?

Judgment:

The Supreme Court ruled that the scope of Article 21 should be read widely. The process that curtails personal liberty must be ‘just, fair and reasonable’, not whimsical. And further more, any law, which abridges the personal liberty has to be in conformity with Article 14 (equality) and Article 19 (freedom). This was a pathbreaking decision which broadened the interpretation of Article 21, holding that the principle of due process of law is an inseverable part of any valid deprivation of personal liberty.

ii) DK Basu v. State of West Bengal (1997):

Facts:

DK Basu, a social action litigant, penned a letter to the Supreme Court on growing instances of custodial deaths and torture. The letter has been treated by the Court as a Public Interest Litigation (PIL).

Issues:

Is there a requirement for custodial torture guidelines?

What legal protections should be guaranteed for anyone who is arrested and detained?

Judgment:

The Court said custodial violence (beating or torturing someone in police custody) is a serious problem. So, the Court gave 11 clear rules to be followed by police during arrests and custody.

11 Guidelines given by the Supreme Court are mentioned below:

Police Name Badge: Policemen arresting someone must wear a badge with their name and ID clearly visible.
Arrest Memo: When someone is arrested, a document must be made with the time, date, and reason for arrest. It must be signed by the arrested person and a witness (like a family member or local person).
Inform Family or Friend: The arrested person has the right to inform a friend or relative about their arrest.
Inform Family if Far Away: If the family or friend lives in another town or district, police must inform them within 8 to 12 hours.
Police Diary Entry: Police must note the name of the arrested person, time and place of arrest, and who was informed, in their official diary.
Medical Checkup: A doctor must check the arrested person at the time of arrest and every 48 hours during custody.
Send Memo to Magistrate: A copy of the arrest memo must be sent to the magistrate, so there’s a legal record.
Right to Lawyer: The arrested person can meet and talk to a lawyer, even during questioning.
Inform About Legal Aid: The arrested person must be told they have a right to free legal help (legal aid).
Police Control Room Info: There should be a control room in every district and state, and information about the arrest must be sent there within 12 hours.
Display at Control Room: The control room must display names of all arrested people and where they are being kept.

Conclusion

The BNSS is, in essence, the most revolutionary legislation for the reform of the criminal law system in Independent India. Yes, the system is oriented toward protection of the rights of the accused, so that no one is wrongly convicted, or treated unfair by the legal process.

When the laws are updated, the values of the presumption of innocence, a fair trial, access to legal aid and protection from arbitrary detention still underpin the system. Now it’s up to the courts and law enforcement to enforce this right in the most meaningful and consistent way.

As the system evolves, legal awareness, public accountability, and judicial vigilance will remain key to ensuring that the rights of the accused are not only preserved in law but respected in practice.

References

Constitution of India – Articles 20, 21, 22
Bharatiya Nyaya Sanhita, 2023.

Bharatiya Nagarik Suraksha Sanhita, 2023

By Zoya Moosodi

Currently pursuing 3-year LL.B

Barrister A.R ANTULAY COLLEGE OF LAW, Mumbai