Arrest rights for protesters: know your legal options in India

Article 22 of the Constitution gives every arrested person four non-negotiable rights: the right to be informed of the grounds of arrest, the right to consult and be defended by a lawyer, the right to be produced before a magistrate within 24 hours, and the right to not be detained beyond that period without judicial authority. These rights apply to protesters just as they apply to any accused person.

The Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the CrPC in 2024, retains and in some places strengthens these safeguards. Key sections to know:

The Supreme Court’s judgment in D.K. Basu v. State of West Bengal (1997) laid down 11 binding guidelines on arrest procedure, including the right to a memo of arrest, the right to an advocate during interrogation, and the duty of the police to maintain an arrest book. These guidelines are still fully enforceable and are routinely cited before the Allahabad High Court Lucknow Bench.

The Allahabad High Court has intervened in several protest-related arrest matters, especially during the CAA/NRC protests in 2020. Two important rulings stand out for protesters in Uttar Pradesh.

Ahmed Ali and others v. State of Uttar Pradesh (2020)

In Crl. Misc. Writ Petition No. 12148 of 2020, the High Court refused to quash the FIR against the petitioners but protected them from arrest until the police filed a report under Section 173(2) CrPC (now corresponding provisions under BNSS). The condition was that they cooperate with the investigation. This is a classic example of interim protection from arrest that protesters can seek through a writ petition even when the FIR is not quashed.

In Re: Banners Placed on Roadside in Lucknow (2020)

In this widely reported case, the High Court held that the State cannot use public shaming or hoardings to target protest-related accused persons. The court treated such hoardings as an encroachment on privacy and personal liberty under Article 21. This ruling is important for protesters because it shows the High Court’s willingness to protect dignity and due process even when the State acts aggressively.

If you are arrested during a protest, your first legal remedy is bail. The BNSS provides different bail routes depending on the nature of the offense alleged.

• Bailable offenses (e.g., minor public nuisance, unlawful assembly without violence): Bail is a matter of right under Section 480 BNSS (old Section 436 CrPC). The police or magistrate must release you on bail if you furnish a bond. If the police refuse, approach the magistrate immediately.
• Non-bailable offenses (e.g., rioting with deadly weapons, assault on public servant): Bail is discretionary. You can apply before the magistrate under Section 483 BNSS (old Section 437 CrPC). If the magistrate refuses, move to the Sessions Court or directly to the High Court under Section 484 BNSS (old Section 439 CrPC).
• Anticipatory bail (pre-arrest bail): If you have reason to believe the police will arrest you, you can apply for anticipatory bail before the Sessions Court or the High Court under Section 482 BNSS (old Section 438 CrPC). This is often the most effective remedy for protesters who have not yet been taken into custody.

In our practice before the Lucknow Bench, we find that judges examine three things carefully in protest-related bail applications: whether the protest was peaceful, whether there is any criminal antecedent of the applicant, and whether the applicant is willing to cooperate with the investigation. A well-drafted bail application with supporting affidavits and a clear undertaking of cooperation significantly improves the chances of relief.

Knowing what to do in the moment can make the difference between a short detention and a prolonged legal battle. Here is a step-by-step guide:

1. Stay calm and do not resist arrest physically. Resistance can lead to additional charges like assault or obstruction. Instead, ask the officer for the grounds of arrest and note their name and badge number.
2. Demand to see the arrest memo. Under D.K. Basu guidelines, the police must prepare a memo of arrest signed by a witness. If they do not, note the time and circumstances.
3. Ask to inform a family member or friend. Under Section 36 BNSS, you have the right to have someone informed of your arrest without delay. If the police refuse, this is a violation of your rights.
4. Do not sign any document without reading it. Police may pressure you to sign a confession or a statement. You have the right to remain silent and the right to consult a lawyer before signing anything.
5. Contact a criminal lawyer immediately. As soon as you are allowed a phone call, contact a lawyer who handles criminal defense in Lucknow. If you cannot afford one, you have the right to free legal aid under Article 39A of the Constitution.
6. Document everything. After your release, write down every detail: time of arrest, names of officers, what was said, whether you were given food and water, and whether you were produced before a magistrate within 24 hours. This documentation is crucial for any later petition.

Sometimes the FIR registered against a protester is false or exaggerated. In such cases, you can approach the Allahabad High Court Lucknow Bench for quashing of the FIR under Section 528 BNSS (old Section 482 CrPC). The High Court has inherent powers to quash an FIR if it is frivolous, malicious, or does not disclose any cognizable offense.

The Ahmed Ali case discussed above shows that even if the FIR is not quashed, the High Court can grant interim protection from arrest. This is often a faster remedy than waiting for a bail application to be heard in the lower courts. In Lucknow, a writ petition for quashing or for interim arrest protection can be mentioned urgently before the bench, and interim orders can be obtained on the same day or within 2–3 days if the facts are strong.

Other remedies available to protesters include:

• Complaint before the magistrate under Section 156(3) BNSS if the police refuse to register your complaint about illegal detention or custodial violence.
• Petition before the Human Rights Commission for compensation or redressal of custodial excesses.
• Habeas corpus petition before the High Court if the arrest is illegal or the detainee is not produced before a magistrate within 24 hours.

These secondary remedies should be used only after exhausting bail and quashing options, but they remain important tools for protesters facing unlawful police action.

In our practice before the Lucknow Bench, such applications are typically listed within 2–3 days of filing if an urgent mentioning is made before the bench in the morning. For anticipatory bail under Section 482 BNSS, the Sessions Court at Lucknow usually hears the matter within 24–48 hours of filing.

Below is a quick reference table for typical fees and documents required in protest-related matters:

Judges at the Lucknow Bench commonly ask for: (1) a copy of the FIR, (2) an affidavit stating the facts of the protest and the applicant’s role, (3) an undertaking to cooperate with the investigation, and (4) proof of no criminal antecedents if available. We advise clients to carry a printed copy of the D.K. Basu guidelines and the relevant BNSS sections to the court, as judges appreciate a well-prepared brief. For clients who are still in custody, the family should immediately collect the arrest memo and approach a lawyer without delay — delay of even 24 hours can weaken the case for bail.

Advocate Onkar Pandey is a practicing lawyer at the Allahabad High Court Lucknow Bench with over 25 years of experience in criminal law, bail matters, FIR quashing, and family law. Enrolled with the Bar Council of Uttar Pradesh (No. UP/4825/1999), he provides expert legal guidance to clients across Uttar Pradesh from his chamber at A-406, High Court, Lucknow. For a consultation on arrest rights and protest-related criminal matters, contact Advocate Onkar Pandey at +91 98392 71553.