Rights of the Accused under the Constitution and the BNSS

Criminal law grants the state enormous power over the individual. Investigation, arrest, detention, trial, conviction, and sentence together constitute the most invasive apparatus a modern liberal state deploys against its citizens. To preserve the balance between state power and individual liberty, the Constitution, the criminal procedure code, and the substantive criminal law carve out a set of rights and protections for the accused. This module gathers those rights together and follows them through the four stages of a criminal case: arrest, investigation, trial, and post conviction. Each right is anchored to its constitutional or statutory source and to the leading judicial authority.

1. The Constitutional Foundation

Four articles of the Constitution together shelter the accused. Any right, whether statutory or judicial, ultimately rests on one or more of them.

Article 20: protection in respect of conviction for offences

Article 20 in three parts

Article 20(1). No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Article 20(2). No person shall be prosecuted and punished for the same offence more than once.
Article 20(3). No person accused of any offence shall be compelled to be a witness against himself.

The three sub clauses of Article 20 protect against ex post facto punishment, double jeopardy, and compelled self-incrimination. They are together the substantive constitutional shield for the accused. Each is examined in this series in a separate module.

Article 21: life and personal liberty

Article 21 is the widest of the four. Since Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the Supreme Court has read into it a substantive due process element. Any deprivation of personal liberty must satisfy fairness, reasonableness and non arbitrariness. Almost every right of the accused not otherwise expressly guaranteed has been read into Article 21: the right to a fair trial (Zahira Habibulla Sheikh v. State of Gujarat), the right to a speedy trial (Hussainara Khatoon), the right to legal aid (M. H. Hoskot), the right to be free from torture (D. K. Basu), and the right against involuntary scientific investigation (Selvi).

Article 22: safeguards at the point of arrest and detention

Article 22(1) and (2) provide the three foundational safeguards at arrest: the right to know the grounds of arrest, the right to consult and be defended by a lawyer of one's choice, and the right to be produced before a magistrate within twenty four hours. Article 22(4) to (7) govern preventive detention with its own set of safeguards.

Article 14 and equal protection

Article 14 guarantees equality before the law and the equal protection of the laws. Where the state applies its criminal law selectively or discriminatorily, or where the operation of the system leaves the wealthy with effective rights and the poor without any, Article 14 is engaged. The rise of legal aid, the doctrine of bail as the rule, and the scrutiny of reverse burden statutes all draw on Article 14.

2. Rights at the Stage of Arrest

Right to know the grounds of arrest

Article 22(1) and Section 47 BNSS require that the arrested person be informed of the grounds of his arrest as soon as may be. The right is mandatory, and failure to communicate the grounds vitiates the arrest and is a ground for release. In Pankaj Bansal v. Union of India, (2023) SCC OnLine SC 1244, the Supreme Court, considering arrests under the PMLA, held that the grounds of arrest must be communicated in writing and not merely orally, to enable the arrested person to challenge the arrest effectively.

Right to consult and be defended by a lawyer

Article 22(1) gives the arrested person the right to consult and be defended by a lawyer of his choice. Section 38 BNSS gives statutory shape to the right to meet a lawyer during interrogation (though not throughout). Section 340 BNSS reiterates the right to be defended by a pleader of choice, and Section 341 BNSS gives effect to the state's obligation to provide legal aid where the accused cannot afford a lawyer.

Right to be produced before a magistrate within 24 hours

Article 22(2) and Section 58 BNSS require that the arrested person be produced before the nearest magistrate within twenty four hours of arrest, excluding travel time. The magistrate must consider the necessity of continued detention and record reasons for authorising it. Non compliance renders the further detention unlawful.

Right to inform a relative or friend

Section 48 BNSS obliges the police to inform a relative, friend or nominated person of the fact of the arrest and the place of detention. The direction was originally laid down in D. K. Basu and is now statutory. It is a central safeguard against secret detention.

Right to medical examination

Sections 53 and 54 BNSS provide for medical examination of the arrested person, both at the initiative of the police and at the request of the arrested person. The D. K. Basu direction that medical examination be conducted every forty eight hours during custody continues to bind. The purpose is to detect and prevent custodial abuse.

The D. K. Basu guidelines and their statutory codification

The eleven directions in D. K. Basu v. State of West Bengal (1997) codified the practical safeguards at the point of arrest. Most of them are now in the BNSS. Non compliance leads to release, to compensation, and to disciplinary and criminal action against the erring officers. A separate module in this series is devoted to these safeguards and their evolution.

3. Rights during Investigation

Right against self-incrimination (Article 20(3))

Article 20(3) protects the accused against being compelled to be a witness against himself. It applies from the moment of formal accusation and, following Nandini Satpathy, to police questioning. The distinction between testimonial evidence (protected) and physical evidence (not protected) drawn in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, remains the operative principle. A separate module in this series is devoted to this doctrine.

Right to silence during police questioning

Section 180(2) BNSS gives the person under police questioning the right not to answer questions that would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The right is broader than the constitutional protection of Article 20(3), because it applies whether or not the person has been formally accused.

Right to consult a lawyer during interrogation

The right to legal representation extends into the investigation stage. Section 38 BNSS provides that the accused is entitled to meet a lawyer during interrogation. Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424, drew on the American Miranda jurisprudence to hold that the suspect should be informed of this right. The presence of the lawyer, though not throughout the interrogation, is a safeguard against coerced confessions.

Protection against custodial abuse

Articles 21 and 22, read together with the Bharatiya Sakshya Adhiniyam bars on confessions to police (Section 22 BSA) and confessions made in police custody (Section 23 BSA), form the shield against custodial abuse. Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189, holds that torture and fake encounters attract personal criminal liability of the officers concerned. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, holds the state strictly liable for custodial deaths.

Right of a woman not to be arrested at night

Section 43(5) BNSS provides that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances. Where arrest is unavoidable, the woman police officer making the arrest must obtain the prior permission of the Judicial Magistrate of the First Class within whose jurisdiction the offence is committed. Section 46(4) of the earlier CrPC was to similar effect. The provision reflects the special vulnerability of women in custody.

4. Rights during Trial

Right to a fair trial

📖 Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158

The Best Bakery case. The Supreme Court held that the right to a fair trial is a component of Article 21. Where a trial has been vitiated by intimidation of witnesses, communal pressure, or the state's failure to protect the criminal process, a retrial may be ordered. Rule: fair trial is a fundamental right, and the courts have a duty to ensure it.

The right to a fair trial is the umbrella under which many specific rights fall. It requires impartial adjudication, procedural fairness, disclosure of the case, opportunity to defend, and the presumption of innocence throughout.

Right to legal aid

The right to legal aid is a component of the fundamental right to a fair trial under Article 21. Where the accused cannot afford a lawyer, the state must provide one. Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81, and M. H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, are the foundational cases. Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401, holds that the obligation is mandatory. A separate module in this series is devoted to the right.

Right to a speedy trial

📖 Hussainara Khatoon (I) v. State of Bihar, (1980) 1 SCC 81

The Supreme Court, hearing the plight of undertrial prisoners who had been detained for periods longer than the maximum sentences for the offences with which they were charged, held that the right to a speedy trial is implicit in Article 21. The state cannot detain a person for years on end without bringing him to trial. Rule: speedy trial is a fundamental right.

📖 A. R. Antulay v. R. S. Nayak, (1992) 1 SCC 225

The Constitution Bench of the Supreme Court elaborated on the right to a speedy trial. The Court laid down that the right applies at all stages of the criminal process: investigation, inquiry, trial, appeal, revision and retrial. Prolonged delay without justification is a violation of Article 21 and is a ground for the quashing of proceedings.

Right to know the case against him

The accused has the right to be informed of the case against him in sufficient detail to prepare a defence. Section 236 BNSS requires the framing of a written charge. Sections 226 to 230 BNSS require the prosecution to furnish copies of the police report, FIR, statements of witnesses under Section 180 BNSS, and other material documents. Failure to furnish these materials is a ground for the setting aside of the conviction (V. K. Sasikala v. State, (2012) 9 SCC 771).

Right to cross-examine witnesses

The right of the accused to cross-examine prosecution witnesses is a component of the right to a fair trial. It is codified in the BNSS trial procedure and in Section 138 of the Bharatiya Sakshya Adhiniyam. Refusal to permit cross-examination is a ground for the setting aside of the conviction. The right is subject to exceptions such as child witnesses in sexual offence cases, where the mode of examination may be modified to protect the witness.

Right to lead defence evidence

Section 265 BNSS (in warrant cases) and Section 288 BNSS (in sessions trials) give the accused the right to enter upon his defence and to produce witnesses and documents. The court cannot deny this right, though it may control the mode of examination to prevent abuse.

Right to be tried by a competent court

The accused is entitled to be tried by a court that has jurisdiction, is competent, and is impartial. Trial by a court without jurisdiction is a nullity. Trial by a judge with a personal interest in the case is a ground for transfer under Section 447 BNSS (formerly Section 407 CrPC).

Right to an open trial

Criminal trials are ordinarily open to the public. This is a component of the right to a fair trial: justice must not only be done but must be seen to be done. Section 366 BNSS (formerly Section 327 CrPC) permits closed door hearings in specified cases (rape, sexual offences, minor witnesses, cases involving state secrets) but the general rule is publicity.

5. Rights during Sentencing

Right to be heard on sentence

Section 258 BNSS (formerly Section 235(2) CrPC) requires the trial court, before passing sentence, to hear the accused on the question of sentence. The provision has been treated as mandatory in Santa Singh v. State of Punjab, (1976) 4 SCC 190, and in Bachan Singh v. State of Punjab, (1980) 2 SCC 684. The purpose is to give the accused an opportunity to bring to the court's notice any circumstances that would mitigate the sentence.

Bachan Singh and the reasoned sentence in capital cases

📖 Bachan Singh v. State of Punjab, (1980) 2 SCC 684

The five judge Constitution Bench of the Supreme Court, considering the constitutional validity of the death sentence, laid down the rarest of rare doctrine. The death sentence must be imposed only when the alternative option of life imprisonment is unquestionably foreclosed. Aggravating and mitigating circumstances must be considered. The accused has a right to be heard on all these factors under Section 235(2) CrPC (now Section 258 BNSS). Rule: the death sentence requires a reasoned choice, and the accused has a right to be heard.

📖 Machhi Singh v. State of Punjab, (1983) 3 SCC 470

The Supreme Court laid down five categories of aggravating factors that may qualify a case as one of the rarest of rare: manner of commission, motive, socially abhorrent nature, magnitude of the crime, and personality of the victim. Even here, the mitigating circumstances relating to the accused must be balanced. The right to be heard remains central.

6. Substantive Protections against Punishment

No ex post facto criminalisation (Article 20(1))

Article 20(1) protects against ex post facto criminalisation. An act cannot be made an offence retrospectively. The penalty cannot be increased retrospectively either. Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404, and Rattan Lal v. State of Punjab, AIR 1965 SC 444, are the leading cases. The rule protects individual liberty by ensuring that the citizen knows in advance what conduct is criminal and what penalty it attracts.

No double jeopardy (Article 20(2))

Article 20(2), read with Section 337 BNSS (formerly Section 300 CrPC) and Section 26 of the General Clauses Act, protects against being prosecuted and punished twice for the same offence. Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, and Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703, mark the contours of the doctrine. A separate module in this series is devoted to it.

No self-incrimination (Article 20(3))

Article 20(3) protects against compelled testimony. The doctrine is treated in a separate module in this series. In summary: the protection applies to persons formally accused, extends to the investigation stage, covers testimonial evidence but not physical evidence, and modern scientific techniques that engage the mental faculties (narco analysis, polygraph, BEAP) fall within the protection unless the accused consents.

General exceptions in Chapter III of the BNS

The BNS carries forward the General Exceptions of Chapter IV of the IPC, now placed in Chapter III of the BNS (Sections 14 to 44). They cover mistake of fact (Sections 14 and 17), judicial acts (Sections 15 and 16), accident (Section 18), unsoundness of mind (Section 22), intoxication (Sections 23 and 24), consent (Sections 25 to 30), private defence (Sections 34 to 44), and other defences. The burden of establishing these exceptions is on the accused under Section 108 BSA, but the standard is preponderance of probabilities, not beyond reasonable doubt.

7. Post Conviction Rights

Right to appeal

Every convicted person has a right to appeal, subject to the limits laid down in the BNSS. Appeals from Magistrate to Sessions Court, Sessions Court to High Court, and High Court to Supreme Court (under Article 136 or as of right in specified cases) are the ordinary channels. Under Section 415 BNSS, an appeal against acquittal by the state is also permitted, but with the appellate court giving the presumption of innocence its due weight. The right to appeal has been treated as a component of Article 21 in M. H. Hoskot v. State of Maharashtra.

Right to review and revision

Beyond appeals, the convicted person may seek review or revision. Review is available in the Supreme Court under Article 137 for the correction of a manifest error. Revision is available in the High Court under Section 442 BNSS (formerly Section 401 CrPC) against orders of subordinate courts. These are extraordinary remedies with a limited scope.

Right to mercy petition

The convicted person may petition the Governor of the State under Article 161 for pardon, reprieve, respite or remission, or the President of India under Article 72 for the same relief in specified cases. The mercy jurisdiction is broad. Kehar Singh v. Union of India, AIR 1989 SC 653, laid down the parameters. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, held that unreasonable delay in disposal of a mercy petition can itself be a ground for commutation of the death sentence.

Rights of the convict in prison

Even in prison, the convict retains fundamental rights. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, held that convicts are not stripped of Article 21. Solitary confinement, bar fetters, and other harsh measures cannot be imposed without judicial oversight. The Mulla Committee (1980 to 1983) recommended prison reforms that have been partially implemented. Recent Supreme Court decisions have addressed prison overcrowding, quality of food and medical care, and the rehabilitation of prisoners.

8. Consolidated Landmark Judgments

A comprehensive list of the leading authorities on the rights of the accused. Grouped by stage.

At the point of arrest

Joginder Kumar v. State of UP, (1994) 4 SCC 260. Arrest must be justified, not automatic.
D. K. Basu v. State of West Bengal, (1997) 1 SCC 416. Eleven directions on arrest and custodial safeguards.
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Mandatory checklist for arrest in offences up to seven years.
Pankaj Bansal v. Union of India, (2023) SCC OnLine SC 1244. Written communication of grounds of arrest.

During investigation

State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808. Testimonial vs physical evidence for Article 20(3).
Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424. Article 20(3) at the investigation stage. Right to consult a lawyer.
Selvi v. State of Karnataka, (2010) 7 SCC 263. Involuntary narco analysis, polygraph and BEAP violate Article 20(3) and Article 21.
Ritesh Sinha v. State of UP, (2019) 8 SCC 1. Voice samples are physical evidence.

Custodial protection

Rudul Sah v. State of Bihar, (1983) 4 SCC 141. Compensation as a constitutional remedy.
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746. State's strict liability for custodial death.
Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189. Fake encounters are murder.

During trial

M. H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544. Right to legal aid at appeal.
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81. Legal aid and speedy trial as components of Article 21.
Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401. Legal aid is mandatory.
A. R. Antulay v. R. S. Nayak, (1992) 1 SCC 225. Speedy trial at all stages. Constitution Bench.
Zahira Habibulla Sheikh v. State of Gujarat, (2004) 4 SCC 158. Fair trial as a fundamental right.
Anokhilal v. State of Madhya Pradesh, (2019) 20 SCC 196. Effective, not merely nominal, legal representation.

Sentencing

Santa Singh v. State of Punjab, (1976) 4 SCC 190. Mandatory nature of the right to be heard on sentence.
Bachan Singh v. State of Punjab, (1980) 2 SCC 684. Rarest of rare doctrine. Right to be heard in capital cases.
Machhi Singh v. State of Punjab, (1983) 3 SCC 470. Five categories of aggravating factors. Bachan Singh applied.

Substantive protections

Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404. Article 20(1) protection against ex post facto laws.
Rattan Lal v. State of Punjab, AIR 1965 SC 444. Beneficial retrospective application of a reduced penalty is permissible.
Maqbool Hussain v. State of Bombay, AIR 1953 SC 325. Article 20(2) and prosecution before a judicial tribunal.
Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, (2011) 2 SCC 703. Section 300 CrPC (now Section 337 BNSS) is wider than Article 20(2).

Post conviction

Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. Convicts retain fundamental rights within the prison walls.
Kehar Singh v. Union of India, AIR 1989 SC 653. Parameters of the mercy jurisdiction under Articles 72 and 161.
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. Delay in disposal of mercy petition as a ground for commutation of the death sentence.

Frequently Asked Questions

What are the rights of an accused in India?

The rights cluster around four stages: (i) arrest (grounds, lawyer, 24 hour production, relative informed, medical exam); (ii) investigation (Article 20(3), silence, legal counsel); (iii) trial (fair trial, legal aid, speedy trial, cross-examination, defence evidence); (iv) sentencing and post-conviction (right to be heard, appeal, mercy petition).

What does Article 22 of the Constitution guarantee?

Article 22(1) guarantees the right to be informed of grounds of arrest and the right to consult and be defended by a legal practitioner. Article 22(2) guarantees production before a magistrate within 24 hours. Article 22(4) to (7) provide safeguards for preventive detention.

Is the right to a fair trial a fundamental right?

Yes. The Supreme Court has held that the right to a fair trial is a component of Article 21. Zahira Habibulla Sheikh v State of Gujarat (2004), the Best Bakery case, is the leading authority. A trial vitiated by intimidation of witnesses or other structural failure can be re-ordered.

What is the right to a speedy trial?

The right to be tried without unreasonable delay. Hussainara Khatoon (1980) recognised it as implicit in Article 21. A. R. Antulay v R. S. Nayak (1992) held that it applies at all stages: investigation, inquiry, trial, appeal, revision and retrial. Prolonged delay without justification can vitiate proceedings.

Can the accused be heard on sentence?

Yes. Section 258 BNSS (formerly Section 235(2) CrPC) requires the trial court, before passing sentence, to hear the accused on the question of sentence. The provision is mandatory (Santa Singh v State of Punjab, 1976; Bachan Singh v State of Punjab, 1980).

Do convicts retain fundamental rights in prison?

Yes. Sunil Batra v Delhi Administration (1978) held that convicts do not cease to be persons on entering prison. The Constitution accompanies them. Solitary confinement, bar fetters and other harsh measures are subject to constitutional discipline.