Author: Muskan Mishra, Sinhgad Law College, SPPU
Abstract
Arrest has historically been treated as a routine part of criminal investigation in India. In many cases, police authorities have exercised the power of arrest mechanically, without assessing its necessity. This practice has raised serious concerns regarding personal liberty under Article 21 of the Constitution. The Supreme Court in Arnesh Kumar v. State of Bihar (2014) attempted to address this issue by laying down strict guidelines to prevent unnecessary arrests, particularly in offences punishable up to seven years. With the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the Code of Criminal Procedure, the legal framework governing arrest has undergone changes in form while largely retaining the substance of safeguards. This article examines whether the concept of “arrest as a rule” still exists in India after Arnesh Kumar and whether the BNSS strengthens or weakens the protection of personal liberty in practice.
To the Point
The core question discussed in this article is whether arrest continues to be treated as the default action by police authorities even after judicial intervention and legislative reform. While Arnesh Kumar clearly established that arrest should not be automatic, its implementation has remained inconsistent. The article argues that although the legal position today rejects “arrest as a rule,” the practice still survives due to institutional habits and lack of effective oversight.
Use of Legal Jargon
Arrest refers to the act of taking a person into custody by lawful authority, resulting in the restriction of personal liberty. Cognizable offences permit police to arrest without prior judicial approval. Article 21 of the Constitution protects life and personal liberty, subject only to a procedure established by law that must be fair and reasonable. The discretionary power of arrest under the BNSS is not absolute and must be exercised based on necessity, proportionality, and recorded reasons. Arbitrary or mechanical arrest amounts to abuse of power and violation of due process.
The Proof
Under the earlier Code of Criminal Procedure, Section 41 laid down conditions under which police could arrest without a warrant. These provisions were frequently ignored in practice, leading to unnecessary arrests. To address this issue, Section 41A was introduced, providing for notice of appearance instead of arrest. However, mere statutory wording proved insufficient.
In Arnesh Kumar v. State of Bihar, the Supreme Court observed that arrest had become a tool of harassment rather than investigation. The Court categorically held that police officers must not automatically arrest accused persons in offences punishable with imprisonment up to seven years. It directed that arrest must be justified on the basis of necessity, such as preventing further offence, ensuring proper investigation, or securing the presence of the accused. Police officers were required to record reasons for arrest, and magistrates were directed to examine these reasons before authorising detention.
With the enactment of the BNSS, similar safeguards have been retained. Section 35 of the BNSS (corresponding to Section 41 CrPC) continues to restrict arrest without warrant and emphasises necessity-based arrest. Section 36 of the BNSS provides for issuance of notice of appearance, reinforcing the principle that arrest should not be the first response. Thus, at the legislative level, the BNSS aligns with the spirit of Arnesh Kumar rather than diluting it.
Despite these safeguards, arrest as a practice often remains routine. In many cases, reasons for arrest are recorded in a formal manner without actual application of mind. Magistrates, burdened with heavy caseloads, sometimes authorise detention without strict scrutiny. This shows that the persistence of unnecessary arrests is not due to absence of law but due to weak enforcement.
Case Laws
The issue of arbitrary arrest was first addressed in Joginder Kumar v. State of Uttar Pradesh (1994), where the Supreme Court held that arrest should not be made merely because it is lawful. The Court emphasised that personal liberty cannot be sacrificed at the altar of police convenience.
In D.K. Basu v. State of West Bengal (1997), the Court laid down detailed guidelines to prevent custodial violence and ensure transparency in arrest procedures. This case strengthened the requirement of accountability in arrest-related actions.
The landmark judgment in Arnesh Kumar v. State of Bihar (2014) directly challenged the culture of routine arrests. The Court clarified that arrest should be an exception, not a rule, and placed responsibility both on police officers and magistrates.
More recently, in Satender Kumar Antil v. CBI (2022), the Supreme Court reiterated that unnecessary arrests defeat the purpose of bail jurisprudence and contribute to overcrowding in prisons. The Court stressed that liberty must be preserved unless detention is absolutely required.
These judicial pronouncements collectively indicate a consistent judicial approach against treating arrest as a default mechanism.
Conclusion
From a legal standpoint, the doctrine of “arrest as a rule” is no longer valid in India. Judicial decisions and statutory provisions under the BNSS clearly establish that arrest must be necessity-driven and justified by recorded reasons. However, the continuation of routine arrests in practice shows that the problem lies in implementation rather than law.
The persistence of unnecessary arrests reflects a deeper institutional issue involving policing culture, lack of accountability, and limited judicial scrutiny. While Arnesh Kumar and the BNSS provide a strong legal framework, their effectiveness depends on strict compliance by police authorities and active oversight by magistrates. Until these safeguards are enforced in spirit, the promise of personal liberty under Article 21 will remain vulnerable.
FAQS
Q1. Has Arnesh Kumar completely abolished arrest?
No. It restricts arbitrary and mechanical arrests and mandates justification.
Q2. Does Arnesh Kumar still apply after BNSS?
Yes. The principles of Arnesh Kumar continue to apply and are reflected in the BNSS.
Q3. Which BNSS provisions deal with arrest?
Sections 35 and 36 of the BNSS primarily govern arrest and notice of appearance.
Q4. Can police still arrest without warrant?
Yes, but only when conditions prescribed under BNSS are satisfied.
Q5. What is the magistrate’s role after arrest?
The magistrate must independently examine whether the arrest was necessary before authorising detention.
References
1. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
2. Joginder Kumar v. State of U.P., (1994) 4 SCC 260
3. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416
4. Satender Kumar Antil v. CBI, (2021) 10 SCC 773
5. Bharatiya Nagarik Suraksha Sanhita, 2023
6.https://www.livelaw.in/articles/decrypting-arnesh-kumar-guidelines-for-making-arrest-239715
https://www.livelaw.in/articles/decrypting-arnesh-kumar-guidelines-for-making-arrest-239715
