Power of Arrest and Personal Liberty
One of the most powerful coercive measures at the disposal of the State, the power to arrest, whilst being an indispensable adjunct in the creation and maintenance of law and order, by its misuse, had throughout history led to arbitrary deprivation of liberty, stigma, and even irreparable harm to the individual, who in many a case, turns out to be innocent.
Arrest as an Exception, Not the Rule
Keeping this vital balance in view, the SC in India recently reiterated an important tenet of criminal jurisprudence, An arrest must always be an exception rather than a rule, especially in cases involving imprisonment within a period of seven years.
BNSS and Strengthening Procedural Safeguards
This observation assumes heightened significance in the backdrop of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has codified the colonial-era Code of Criminal Procedure, 1973 (CrPC).
Section 35(3) and a Rights-Based Criminal Justice Model
By underlining the mandatory character of Section 35(3) of the BNSS, the Court has further strengthened the procedural guarantees right at the inception of criminal investigation and points towards an emphatic move towards the rights-based model of a criminal justice system.
The Legal Position Before BNSS: Arrest as a Routine Practice
The police have been vested with wide discretionary powers to arrest a person without a warrant in cases involving cognizable offenses under the Code of Criminal Procedure, 1973. The relevant section reads:
“41. Arrest on reasonable suspicion—When any police officer, whether armed with a bandal or not, has reasonable suspicion that a person has committed or is committing any offense, he may arrest without warrant…”
The wide powers vested in the police to arrest any person without a warrant in cognizable offenses began with the kind intentions to help in efficient investigation and checking the commission of offenses.
Introduction of Section 41A CrPC
In an attempt to address this imbalance, the legislature introduced Section 41A CrPC through the Code of Criminal Procedure (Amendment) Act, 2009. This section provided for the issuance of a notice of appearance for offenses which provided for an imprisonment of seven years or less, thus discouraging arrest and encouraging the criminal to cooperate with the investigation.
This was indeed a noble aim, as attendance could always be secured without resorting to arrest.
Practical Failure of Section 41A
Nevertheless, Section 41A was, in the long run, not very successful. This is because, despite its advanced nature, the notice of appearance was not a serious legal requirement. This is to say that police officers continued to arrest people in an automated manner.
They continued to do so on “proper investigation of the case,th “gravity of offence,”or public sentiment without showing reasons for why it was important to arrest in the particular case.
Early Judicial Intervention on Arbitrary Arrests
The discrepancy between law and practice also continued to attract the constitutional courts’ attention. At least as early as Joginder Kumar v. State of Uttar Pradesh, which was decided as early as 1994, the Supreme Court itself cautioned that arrest cannot be made simply because it is lawful to do so.
It underscored that arrest is a serious infringement of an individual’s liberty and must be justified by necessity, not by convenience. It, in fact, underlined that it is necessary to require police to justify why arrest was necessary in that particular situation and not as a matter of course.
Arnesh Kumar and Binding Arrest Guidelines
That problem remained even after the insertion of Section 41A. This led to the more vigorous judicial response in Arnesh Kumar v. State of Bihar, in which the Supreme Court took cognisance of the widespread abuse of arrest powers, especially in offences punishable up to seven years.
The Court emphatically stated that arrest should not be a rule, and framing binding guidelines, it said that police officers should record reasons for the arrest and magistrates should scrutinise such reasons prior to authorising detention.
For non-compliance with Sections 41 and 41A, the Court said, departmental action and contempt of court would follow.
Continued Non-Compliance by Police and Magistracy
Still, clear as Arnesh Kumar was, compliance remained patchy. The police continued to arrest as a rule and to issue notices of appearance at best or post-arrest for ratification of action already taken.
Magistrates, too, were found to be routinely allowing applications for remand without checking whether the statutory checks had been observed.
Article 21 and Custodial Abuse
The Supreme Court reiterated its concern in D.K. Basu v. State of West Bengal (1997), where it highlighted how custodial practices and arbitrary arrests strike at the core of Article 21 of the Constitution.
The Court recognised that unlawful or unnecessary arrests not only violate liberty but also erode public confidence in the criminal justice system.
Structural Failure of the CrPC Regime
What emerges from this jurisprudence is that the failure of the CrPC regime was not merely textual, but structural. While safeguards existed on paper, the absence of strict statutory consequences for non-compliance allowed police discretion to overshadow constitutional guarantees.
The CrPC retained a colonial policing philosophy, where control and suspicion were prioritised over dignity and liberty.
Systemic Consequences of Routine Arrest
Arrest, instead of being a last resort, came to be viewed as the starting point of investigation. This approach had severe systemic consequences:
- Overcrowded prisons
- Overburdened courts
- Prolonged pre-trial detention
- Irreversible harm to individuals—especially first-time offenders, salaried professionals, and those accused of minor or technical offences
In essence, the pre-BNSS legal framework suffered from a disconnect between constitutional ideals and everyday criminal procedure. Judicial warnings existed, but lacked statutory teeth.
It is against this backdrop of persistent misuse, weak enforcement, and routine arrests that the BNSS—and particularly Section 35(3)—must be understood as a deliberate and corrective legislative response.
Section 35(3) BNSS: A Structural and Philosophical Shift
The Bharatiya Nagarik Suraksha Sanhita, 2023, therefore, represents a conscious departure from the legacy of the CrPC. Section 35(3) BNSS is very clear and unambiguous, and it states that in cases involving imprisonment up to seven years, a notice of appearance, and not arrest, is to be given to the accused by the police.
Unlike its antecedent, this rule is not of an advisory nature. In fact, the Supreme Court has clarified the importance of adhering to the stipulations of Section 35(3), where the failure to comply with the rule makes the arrest suspect.
Constitutional Logic Behind Section 35(3)
The rationale for including this provision is related to constitutional logic. Arrest is not an investigating tool by itself, but it is a tool for effective investigation.
If the goals of investigation can be attained without recourse to arrest, then liberty is not discredited.
Shift of Burden and Police Accountability
Section 35(3) attempts to operationalise this logic by shifting the burden to the State to justify the arrest, as opposed to the accused person justifying the necessity for freedom.
The section also encourages cooperation rather than coercion, accepting that investigation does not always have to be conducted coercively using notices, summons, and recorded appearances.
By building this security measure into statutory law, BNSS avoids any ambiguity and emphasizes the need for accountability at the police level.
Supreme Court’s Reasoning: Liberty, Dignity, And Due Process
In reinforcing the viability of Section 35(3), the Supreme Court has placed personal liberty at the core of criminal procedure.
In arriving at this decision, the Court noted that being arrested has significant consequences that transcend arrest as a single event.
It can impact the dignity, reputation, work, family, and mental state of a person. Such consequences are not only long-lasting, but they are also irreversible even if the accused has been acquitted.
Circumstances Where Arrest May Be Justified
The Court made it clear that arrest should only be adopted when absolutely necessary in such cases as:
- to prevent the commission of further offences,
- to ensure proper and fair investigation,
- to prevent absconding
- or to stop tampering with evidence or influencing witnesses.
Grounds That Are Not Sufficient For Arrest
Mere suspicion or opportunistic convenience, or a desire to “send a message,” is not sufficient ground for arrest.
The power to arrest is one which must be exercised with restraint, responsibility, and recorded reasons.
Judicial Scrutiny And Consequences Of Non-Compliance
Most importantly, the Court made clear that non-compliance with Section 35(3) BNSS is not a mere technical requirement.
In effect, an arrest that violates this mandate may be subject to judicial scrutiny, which may in turn find that the arrest was unlawful.
By reinforcing safeguards at the investigation stage itself, the Court has ensured that constitutional protections are not postponed until trial or appeal, but are effective from the very moment State power is exercised against an individual.
From Arrest-Centric Policing To Constitutional Justice
The reaffirmation by the Supreme Court of Section 35(3) BNSS transcends a procedural nuance because it represents a paradigm shift in the criminal law philosophy of India, from a colonial approach or mindset which was “arrest first, justify later” to the constitutional approach where liberty is the rule and arrest is the exception based on careful reason or rationale.
This evolution recognizes that efficient police work and the respect for basic rights are not conflicting tasks.
On the contrary, making too many arrests can undermine the public’s confidence in police work, overburden the penitentiary system, and undermine the legitimacy of law enforcement.
Article 21 And Procedural Fairness
Furthermore, making a notice of appearance mandatory and making arrests conditional is a step towards a criminal procedure that is consonant with the values that Article 21 of the Constitution upholds, that is, towards a criminal procedure that protects “life and personal liberty except according to procedures established by law that are fair, just, and reasonable.”
The Supreme Court’s Clear And Uncompromising Message
Ultimately, the Supreme Court’s message is clear and uncompromising: liberty cannot be sacrificed at the altar of convenience.
Arrest is not a default response to accusation but a serious legal action that must be justified, proportionate, and necessary.
Procedural safeguards like Section 35(3) BNSS are not obstacles to justice; they are its foundation.
Transition To A New Criminal Law Regime
As India transitions into a new criminal law regime, this interpretation ensures that the promise of reform does not remain on paper, but translates into meaningful protection of individual freedom on the ground.
