Women protesters, detained after sunset, claim that netizens: What does the law say?

Widespread outrage erupted on social media after demonstrations in central Delhi over the weekend, where protesters gathered to demand the resignation of Chief Election Commissioner (CEC) Gyanesh Kumar over alleged irregularities in the Special Intensive Revision (SIR) of electoral rolls.

Several networks and civil society groups alleged that female protesters were manhandled by male police personnel and detained after dark.

This has thrown a sharp light on the legal safeguards for the protection of women under the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, raising crucial questions about the limits of police power during public demonstrations.

Quick answers to key questions

•5 QUESTIONS

Section 43(5) of the BNSS generally prohibits the arrest of a woman between sunset and sunrise. An exception requires real, compelling circumstances—not routine protest policing or administrative convenience.

The police officer must submit a written report explaining why the night arrest is necessary and must obtain prior written permission from a Magistrate of the First Class.

No. Restrictions apply from sunset to sunrise; does not automatically start at 6:00 p.m.

It is usually assumed that a woman will submit to custody after being verbally warned of an arrest, so a male officer should not touch her. Any physical contact must be justified by the circumstances and must not involve unnecessary or excessive force.

If the detention continues without lawful authority, he can apply to the High Court under Article 226 for a writ of habeas corpus or challenge the arrest before a magistrate in custody. It can also seek an independent investigation, departmental proceedings or, in appropriate cases, compensation.

Read also | CJP protest day 2: How events unfolded amid detention and court order in Delhi

In one clip shared by a journalist, male security personnel were seen physically grappling with protesters and dragging them into transit vehicles.

While another video captured desperate screams as female protesters were pushed into police buses, with netizens claiming the detention continued past 6pm.

This sparked an immediate online debate: Can police detain women after dark?

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What does the law say about arrests after sunset?

The basic legal protection governing night detention is codified in Section 43(5) of the BNSS, which expressly prohibits the arrest of women after sunset and before sunrise, except in strictly monitored situations.

Legal experts told LiveMint that the threshold for circumventing this protection is extremely high. “Section 43(5) BNSS lays down a clear guarantee that under normal circumstances a woman cannot be arrested after sunset and before sunrise,” explained Vaibhavi Sharma, partner at Prosoll Law.

“While the law does not exhaustively define ‘extraordinary circumstances’, the exception cannot be invoked as a matter of ordinary or administrative convenience. There must be circumstances demonstrating the real necessity of an immediate nighttime arrest,” she added.

Dr. Advocate Rishabh Gandhi, a former judge and founder of Rishabh Gandhi and Advocates, agreed that routine protest policing does not qualify as “extraordinary circumstances”.

“Although the law does not exhaustively define such circumstances, they must be real, convincing and capable of objective justification. Mere administrative convenience or general apprehension of infringement cannot automatically justify the waiver of statutory guarantees,” Gandhi noted.

He pointed out an important technical nuance: “The important thing is that the restriction works from sunset, not automatically from 18:00.”

Prakhar Parekh, a partner at Rashmikant & Partners, elaborated on what legally constitutes such urgency: “Exceptional circumstances would indicate situations where an extremely serious crime has been committed or failure to apprehend would result in the destruction of evidence.”

Even if an extraordinary event occurs, a procedural obstacle cannot be negotiated. Sharma noted that the law requires an officer to file a written report explaining the necessity and obtain prior written permission from a first-class judicial magistrate before an arrest can be made at night.

Crucially, law enforcement cannot circumvent these rules by playing with terminology. “The police cannot circumvent the legal safeguards by simply describing what is effectively an arrest as a temporary detention,” Gandhi warned.

Sharma added that finding a violation depends heavily on “the precise nature and extent of the restriction, the statutory provision used and the length of detention”.

Read also | What is preventive detention? How is it different from arrest?

Can male police officers physically touch female protesters?

The viral reels – including one that allegedly shows a male police officer inappropriately grabbing AISA activist Neha Bora before apologizing for the unauthorized touching – bring another crucial legal protection into sharp focus: the proviso to Section 43(1) of the BNSS.

“The law generally presumes that a woman submits to custody on a verbal intimation of arrest and prohibits a police officer from touching her physically to effect an arrest unless the circumstances require otherwise,” explained Dr. Rishabh Gandhi.

While the law does not create an absolute bar to physical contact, Gandhi stressed that “such contact must be justified by the circumstances and must not involve unnecessary or excessive force”.

Vaibhavi Sharma emphasized that the burden of proof lies squarely on the police if officers use physical force: “The law is based on the fact that it is usually sufficient to bring a woman into custody on the basis of a verbal indication of arrest. So if male police personnel physically grabbed, dragged away or restrained women protestors, the authorities would have to explain such circumstances.”

She noted that while the mere presence of male staff does not invalidate an arrest, “unnecessary or disproportionate physical contact may constitute a breach of statutory protection” and a breach of Article 21’s fundamental rights to dignity and bodily integrity.

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What remedies do detainers have against roving officers?

If police personnel are found to have breached these statutory guarantees, detainees have several constitutional and judicial remedies available, although practical obstacles remain.

“If a person continues to be detained without legal authority, the immediate remedy is to approach the Delhi High Court under Article 226 for a writ of habeas corpus,” Sharma said. “The legality of an arrest may also be challenged before a judge when the detainee is taken into custody.”

Even after release, victims can hold the authorities accountable. Dr. Gandhi noted that affected individuals could seek “independent inquiry, departmental proceedings, prosecution of the officers concerned and, in appropriate cases, monetary compensation for constitutional violations” under Articles 21 and 22.

However, the prosecution of police officers in court is associated with legal obstacles. “Since any prosecution of police officers requires government sanctions, the process is unlikely to yield results in the short term,” Parekh noted, adding that detainees can also file complaints with human rights commissions.

According to Sharma, judicial outcomes depend on “the duration and nature of detention, grounds for arrest, arrest records and station records, video/CCTV footage, presence of women police personnel, nature of force used and whether prior permission of Magistrate under Section 43(5) has been obtained.”

“If statutory safeguards were deliberately circumvented,” Sharma concluded, “the problem goes beyond mere procedural failure and raises a serious question of unlawful deprivation of personal liberty.