Author: Drishti Bhanushali.
In India, the legal framework acknowledges the importance of safeguarding women’s rights, even in the event of an arrest. These special rights are enacted to ensure that the dignity, privacy, and well-being of women are protected during the arrest process. These provisions take into account the vulnerabilities that a woman may face and aim to provide them with a supportive environment when dealing with law enforcement. Let’s delve into the specific rights that women are entitled to when it comes to arrests in India.
WHAT ARE A WOMAN’S SPECIAL RIGHTS IF SHE IS BEING QUESTIONED OR ARRESTED?
CrPC (Amendment Act) 2005 added sub-section (4) in Section 46 of the Code to provide the procedure for the arrest of women.
Women cannot be arrested at all without a female constable present at the time of the arrest. But, even when a female constable is present, women cannot be arrested after sunset or before sunrise. If an exceptional circumstance exists, a female police officer has to obtain prior written permission from a first-class judicial magistrate by explaining why it is necessary for the arrest to be made at odd hours. Only then can the arrest be made.
- Arrested women have to be housed in a separate female lock-up in the police station, away from men. If there is no separate lockup, arrested women can ask to be housed in a separate room. Women have to be guarded by female constables/police officers; if any interrogation is to be done after the arrest, it must be done in the presence of a policewoman.
- After sunset, women cannot be called to the police station for interrogation; Indian women have the explicit right to be questioned in their own homes; their physical presence can’t be demanded at the station or any other place for questioning. The police can only interrogate a woman at her place of residence in the presence of a woman constable and family or friends.
- Women can only be searched by police women. Women have the right to refuse to be searched by a male police officer. Any search beyond this refusal is deemed as sexual harassment, and the woman can take action against the male officer.
- Women have the right to dignity and decency. In the event that a medical procedure needs to be performed on a female arrestee or any other woman, it should be performed by a female medical practitioner, preferably in the presence of a policewoman.
- The police can arrest pregnant women only as a last-case resort, keeping in mind the safety of the woman and the fetus. Labouring pregnant women can never be restrained, and pregnant women who undergo medical procedures in custody have the right to receive all necessary prenatal and postnatal care.
- If the police do not abide by these rules while arresting a woman, she should remind them about her rights and their duties, and file a complaint with the Station House Officer (SHO) who is in charge of the police station. In case that does not work, she should immediately contact her lawyer and file a private complaint with the Judicial Magistrate. In such cases, it is important to note down the names and designations of the offending police officers. However, the mistreatment of an accused/arrested woman by the police does not nullify the offense she allegedly committed.
- In the landmark case of Bharati S. Khandhar vs. Maruti Govind Jadhav (2012), the petitioner was aware of the provision of Section 46(1) but was not unaware of the provision of Section 46(4) of the Code of Criminal Procedure, following which she was arrested after sunset and was mistreated by the police officers. The Hon’ble Bombay High Court directed the Mumbai Commissioner of Police to hold an inquiry against the concerned police officers for illegal detention and arrest of the petitioner from 5:30 pm which was after sunset. The Director-General of Police, State of Maharashtra, and the Commissioner of Police, Mumbai were directed to issue instructions within a period of two weeks to all the concerned officers to follow the mandate stating that arrest of any woman accused of any offense should not be done after sunset and before sunrise.
- In Sheela Barse vs. the State of Maharashtra (1983), a journalist Sheela Barse wrote a letter complaining of custodial violence to women prisoners while confined in the police lock-ups in the city of Mumbai, which was later treated as a Writ Petition. Following this case, various directions were issued to the State of Maharashtra conferring protection to women prisoners in police lockups.
The constant debates and conversations about the rights of women gave rise to various amendments in the CrPC. To safeguard arrested women, the Code amended certain sections related to strict guidelines, procedures, and rights of an arrested woman.
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References
Criminal Procedure Code (Amendment) Act 2005
