Abstract
Wrongful and arbitrary arrest remains one of the most persistent threats to personal liberty in India, striking directly at the guarantees enshrined in Article 21. This article examines the constitutional architecture protecting individuals from unlawful arrest, traces the evolution from the Code of Criminal Procedure (CrPC), 1973 to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and evaluates whether the new procedural code meaningfully strengthens arrest safeguards. Drawing on landmark Supreme Court jurisprudence and comparative constitutional standards, the article concludes that while the BNSS introduces welcome procedural reforms, statutory change alone cannot cure the deeper problem of arbitrary police discretion — that requires sustained judicial vigilance and institutional accountability.
Introduction
Arrest is among the most coercive powers the state exercises over an individual, yet in India it is frequently deployed casually — as a tool of harassment, a substitute for investigation, or a form of pre-trial punishment. Data and reportage over the past decade have repeatedly flagged the routine, almost reflexive, use of arrest even in minor or bailable offences, disproportionately affecting the poor and marginalized. Because arrest strikes directly at liberty guaranteed under Article 21, every instance of wrongful arrest is simultaneously a constitutional violation. Against this backdrop, Parliament replaced the CrPC, 1973 with the BNSS, 2023, promising modernized, rights-conscious arrest procedures. This article asks whether that promise has been fulfilled, situating the BNSS within the constitutional and judicial framework that has historically curbed arrest abuse.
The Constitutional Framework: Articles 21 and 22
Article 21 guarantees that no person shall be deprived of life or personal liberty except by a procedure established by law — a procedure that, since Maneka Gandhi v. Union of India, must be fair, just, and reasonable. Article 22 supplements this with specific procedural protections: the right to be informed of the grounds of arrest, the right to consult and be defended by a legal practitioner of one’s choice, and the right to be produced before a Magistrate within twenty-four hours of arrest. Where these safeguards are violated, the writ of habeas corpus under Articles 32 and 226 offers a direct constitutional remedy, compelling the state to justify the detention or release the individual. Together, Articles 21 and 22 establish that arrest is not merely a procedural formality but an act requiring constitutional justification at every stage.
Wrongful Arrests: The Existing Legal Challenge
Despite this framework, arrest powers have long been misused as an instrument of intimidation rather than investigation. National Crime Records Bureau data and successive Law Commission reports have highlighted the disproportionate number of arrests in offences carrying minor punishment, many resulting in acquittal or no chargesheet at all. An arrest — even before conviction — carries severe consequences: loss of employment, social stigma, disruption of family life, and lasting damage to reputation. The presumption of innocence is often inverted in practice, with arrest itself functioning as informal punishment. This gap between constitutional guarantee and ground reality is precisely what the BNSS was expected to address.
The BNSS Framework: Has the Law Strengthened Safeguards?
Chapter V of the BNSS (Sections 35–62) governs arrest, consolidating and revising provisions earlier scattered across the CrPC. Section 35 merges the former Sections 41 and 41A of the CrPC, requiring police to ordinarily issue a notice of appearance for offences punishable up to seven years, rather than arresting outright. Arrest becomes permissible only where the officer records, in writing, that it is necessary — to prevent further offences, ensure proper investigation, prevent evidence tampering, protect witnesses, or secure the person’s appearance in court. A new safeguard under Section 35(7) bars arrest without the prior permission of an officer of at least Deputy Superintendent rank where the offence carries a sentence of under three years and the accused is infirm or above sixty. The BNSS also formalizes electronic communication and audio-video recording during arrest and investigation, intended to enhance transparency, though the Supreme Court has recently clarified that notice under Section 35 must still be served physically, not merely electronically, absent explicit statutory sanction. Compared to the CrPC, the BNSS is more explicit in mandating recorded reasons and structured pre-arrest scrutiny, reflecting an intent to make arrest the exception rather than the default.
Judicial Oversight and Landmark Decisions
Judicial pronouncements have done much of the work legislation alone could not. Some of the landmark judgements in short are:-
In Joginder Kumar v. State of Uttar Pradesh (1994), the Supreme Court held that arrest cannot be made merely because it is lawful to do so, and that the existence of power must be distinguished from its justified exercise.
D.K. Basu v. State of West Bengal (1997) laid down binding procedural guidelines — including preparation of arrest memos, medical examination, and intimation to a relative — subsequently codified into statute.
In Arnesh Kumar v. State of Bihar (2014), the Court curbed mechanical arrests in cases punishable by up to seven years, directing police to record reasons and satisfy specific conditions before arrest, principles now echoed in Section 35 of the BNSS.
Most recently, in Satender Kumar Antil v. CBI (decided January 2026), the Court reaffirmed that arrest under the BNSS can never be automatic, and that even receipt of a notice does not make arrest inevitable — signalling continued judicial insistence on restraint even under the new code.
Constitutional Concerns, Comparative Perspective and Evaluation
Concerns of arbitrariness under Article 14, due process under Article 21, and the absence of a robust statutory compensation framework for unlawful arrest persist despite the BNSS reforms, falling short of international standards under the ICCPR and UDHR. Comparative frameworks offer useful benchmarks: the UK’s Police and Criminal Evidence Act, 1984 imposes detailed custody-record and review obligations; the US Fourth Amendment and Miranda safeguards demand probable cause and explicit rights advisement; and Article 5 of the European Convention on Human Rights requires prompt judicial review of detention. Measured against these, the BNSS’s reforms — notice provisions, recorded reasons, protections for the elderly — are meaningful but incomplete, leaving considerable police discretion intact and lacking independent oversight mechanisms, body-camera mandates, or an enforceable compensation regime.
Recommendations and Conclusion
Liberty must remain the constitutional norm, and arrest the exception. Realizing this requires mandatory compliance with existing Supreme Court guidelines, disciplinary accountability for violating officers, a statutory compensation framework for unlawful arrest, stronger judicial scrutiny at the remand stage, systematic training of investigating officers, and technology-enabled, tamper-proof arrest records. The BNSS represents genuine procedural progress over the CrPC, but legislative text alone cannot discipline discretion exercised on the street. Only sustained judicial oversight, institutional accountability, and a culture of constitutional compliance within the police can ensure that the power to arrest is exercised lawfully, proportionately, and as a last resort.
Sources
- Constitution of India.
- Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
- Universal Declaration of Human Rights (UDHR).
- Police and Criminal Evidence Act, 1984 (UK).
- Maneka Gandhi v. Union of India, AIR 1978 SC 597
- Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260
- D.K. Basu v. State of West Bengal, (1997) 1 SCC 416
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
- Satender Kumar Antil v. Central Bureau of Investigation, decided 15 January 2026 (Sundresh & Singh, JJ.)
Author: Shaurya Kumar
Law student|| Writer|| Selenophile