Know Your Rights: Dealing With Law Enforcement as a Woman
In Know Your Rights, we simplify the rights you’ve been given, so you know how to exercise them.
The Indian Constitution guarantees its citizens certain rights if they have been the victim of a crime, and even while they are arrested after the accusation of a crime. However, given the circumstances in which Indian women live — rampant physical and sexual violence, even by the police, and an all-pervasive rape culture — over time, the Supreme Court has come up with guidelines to ensure the safety, dignity, and preservation of basic fundamental rights of women, both survivors and those accused.
Unfortunately, most women are not aware of these rights, many of which get obscured by misinformation, leading to their exploitation by an overworked, underpaid and poorly trained Indian police force. Here’s an effort to change that:
What are a woman’s special rights if she is being questioned/arrested?
First, women cannot be arrested at all without a woman constable present at the time of the arrest. But, even when a woman constable is present, women cannot be arrested after sunset or before sunrise. If an exceptional circumstance exists, a woman 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.
Second, 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.
Third, 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.
Fourth, women can only be searched by policewomen. Women have the right to refuse being 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.
Fifth, 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.
Sixth, the police can arrest pregnant women only as a last-case resort, keeping in mind the safety of the woman and the fetus. Laboring pregnant women can never be restrained, and pregnant women who undergo medical procedures in custody have the right to receive all necessary pre-natal and post-natal care.
Seventh, 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.
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What are the general laws that Indian citizens have at the time of an arrest?
In addition to the aforementioned special laws accorded to women, there are other applicable laws, which one should be aware of, should the police approach them for an arrest or for questioning.
All people have the right to be informed of the grounds on which their arrest is being made. The arresting officer has to inform friends, relatives or any person nominated by the arrested person, of the arrest and where the arrested is being held. It is the duty of the police officer to inform the arrested person of their rights, especially the right to bail. It is illegal to detain anyone for more than 24 hours; they have a right to be produced in front of a magistrate without delay. It is also illegal for the police to manhandle anyone at the time of the arrest.
All arrested persons have the right to legal aid from the moment the arrest is made and the right to a fair trial.
What are a woman’s rights if she needs to file a complaint?
First, police can’t say no to registering a First Information Report (FIR), especially if a woman is making the complaint, no matter how much time has elapsed since the crime has been committed.
Second, women have the Right to Zero FIR. By this law, a woman can file an FIR at any police station irrespective of where the crime occurred. The Zero FIR is simply moved to the police station under whose jurisdiction the case falls after the initial filing. This is not only so as to save the woman’s time and prevent the offender from getting away, but also women can use this right on the occasions a police station refuses to file a complaint by saying it “doesn’t come under their area.” Women can go to literally any other police station, file a complaint and begin their fight for justice.
Third, in case a woman is not in a position to physically go to a police station to file an FIR, she can send in a written complaint via email or registered post addressed to the Deputy Police Commissioner or Commissioner of Police. The officer then directs the SHO of the police station where the crime has occurred to lodge an FIR. The SHO then sends police officers to the residence of the woman to take her statement.
What are the rights of female survivors of sexual violence with respect to the police?
If a woman files an FIR for rape, the law specifies that the SHO has to notify the Legal Services Authority, which must arrange a lawyer for her free of cost. She has the right to demand this.
A female rape survivor also has the right to record her statement in private and in the presence of a female constable or police officer. She also has the right to record her statement in front of the district magistrate when the case goes to trial, with no one else present, if she demands it.
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The survivor has a right to privacy; the identity of a rape victim can never be revealed — either by the police or the media; doing so is a punishable offense. Even while the case is under trial in court, the survivor’s name is not indicated; she is only described as ‘victim’ in the legal documentation.
It is the right of a rape survivor to go to a doctor first before going to the police to file an FIR; hospitals cannot deny the crucial medical examination of a rape survivor just because a criminal complaint hasn’t been filed. The Supreme Court termed this examination a “medico-legal emergency” in 2002, since tending to the health ramifications of sexual violence and collecting medical evidence for legal trials in such cases is time-sensitive. Since then, doctors and hospitals are obliged to examine the survivor right away and initiate police proceedings on her behalf subsequently.
If the survivor goes to a police station first, a medical examination must take place (with her consent) within 24 hours, preferably by a female medical practitioner. A male doctor can also perform the examination if the woman consents, considering the time-sensitive nature of the test. The report of the examination must be forwarded immediately to the investigating officer who, in turn, should forward it to the magistrate.
Most importantly, none of this can happen without the survivor’s explicit consent (and in the case of a minor, consent by the parent or guardian). Nobody can force her to undergo a medical examination if she doesn’t want to, not even the Court. She also has the right to consent to a partial examination, that is, selectively agree to physical tests/genital examination. If a survivor approaches a hospital first, she has to consent explicitly before the hospital notifies the police and terms her case as a medicolegal case. Nobody can force a woman to initiate police proceedings if she has survived rape, especially not a doctor/hospital she has approached for medical care.
If after examination, a doctor concludes rape has not taken place, an FIR filed by a woman for the same is still valid. The medical examination only exists to determine the evidence of recent sexual activity and the nature of it.
Whether the rape has occurred is a legal decision, not a medical one.