Preventive Arrest Under BNSS: An Analysis
While preventive detention laws under the Bharatiya Nagarik Suraksha Sanhita (BNSS) are designed to maintain public order and prevent imminent offences, their broad scope makes them highly susceptible to executive overreach and the suppression of legitimate dissent.
This article will discuss the broader framework of preventive arrests under BNSS.
Constitutional Ambiguity: Public Order and State Security
The terms “public order” and “state security” are not defined in the Constitution. These terms are vague and cannot be specific grounds for any sort of legal action if they are not specified precisely.
The Supreme Court has held in the Shreya Singhal v. Union of India, AIR 2015 SC 1523 case, that overbroad and vague terms can lead to arbitrary actions and hence are deemed unconstitutional if infringement of constitutional provisions is prima facie.
Similarly, in A.K. Roy v. Union of India, AIR 1982 SC 710, the Court upheld the constitutional validity of the National Security Act (NSA) while cautioning its use in extreme situations with strict caution so as to protect personal freedom and liberty guaranteed under Article 21 of the Constitution.
Article 19: Reasonable Restrictions and Preventive Detention
The aforementioned terms have been used in clause 2 of Article 19 as reasonable restrictions on the freedom guaranteed in its clause 1 but not defined in the Constitution so as to leave ample space for the legislature to enact laws on different subjects pertaining to these terms.
However, from the Shreya Singhal case, it is also clear that in statutes, vague terms cannot be used.
Furthermore, it can be interpreted that the grounds of detention should not be overbroad and vague like ‘public order’ or ‘national security’, as has been established in the landmark case of The State of Bombay v. Atma Ram Sridhar Vaidya, AIR 1951 SC 157.
Section 170 BNSS: Preventive Arrest Powers
Section 170 of BNSS empowers a police officer to arrest a person without a warrant if he knows that the suspect could commit a cognisable offence which cannot be otherwise prevented; the arrestee must be produced before a magistrate within 24 hours.
Section 126 of the BNSS empowers an executive magistrate to issue a show cause notice to execute a bond.
Section 126 BNSS: Role of the Executive Magistrate
Under Section 70 of the Delhi Police Act and Section 15 of BNSS, an officer not below the rank of an Assistant Commissioner of Police (ACP) or Superintendent of Police, respectively, by a government notification act in the capacity of an SEM.
This administrative task is frequently carried out by an ACP in the capacity of an SEM.
Conflict of Interest and the Principle of Natural Justice
This provision creates a great conflict of interest and also violates the established principle of “Nemo Judex in Causa Sua”, which means that no one can be a judge in his own cause.
For instance, a person preventively arrested under section 170 of BNSS by the police is produced before an SEM who is also a police officer.
This would hinder the application of an independent mind to the case. When both are from the same department, it also does not practically matter if the adjudicator is an ACP or an SEM, as both of them are under the government.
Preventive Arrests, Political Misuse and Fundamental Rights
Especially in politically charged cases, the arrest is influenced by the government, and the detention itself is also approved by an officer of the government; this leads to grave injustice and an assault on the fundamental rights and the constitution.
The Way Forward & Conclusion
Section 126 must be amended, and the case should not go to an executive magistrate but directly to a judicial magistrate at the first instance so as to avoid conflict of interest.
As Lord Hewart in 1924 remarked, “Justice should not only be done but should manifestly and undoubtedly be seen to be done.”
In case of non-availability of a judicial magistrate, an executive magistrate may give remand subject to judicial intervention upon the judicial magistrate’s availability.
Ultimately, amendment to the BNSS is of utmost importance to incorporate judicial roles in preventive detentions so as to live up to the spirit of the Constitution.
Written By: Ch.Ehtisham Ul Haq is the author of “The Young Citizens’ Guide To The Constitution Of India”, columnist and an independent researcher.
Email: [email protected]
