Arrest, Personal Liberty and Due Process under the BNSS, 2023: A Constitutional Perspective

Author

Neelam Vishwakarma


Abstract

 Arrest is the moment at which the abstract promise of Article 21 becomes a physical fact: a person is stopped, held and removed from ordinary life by the State, often before any court has heard a word. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in force since 1 July 2024, replaced the Code of Criminal Procedure, 1973 and re-enacted most of its arrest machinery. This paper asks whether the new Sanhita gives constitutional guarantees of liberty and due process a firmer statutory footing, or merely re-labels a framework the Supreme Court had already been forced to repair through judgments such as Joginder Kumar, D.K. Basu and Arnesh Kumar. It argues that the BNSS codifies several judicial safeguards (notice of appearance, disclosure of grounds, informing a nominated person, an undertrial release ceiling) but leaves the decisive questions of necessity, custody and bail to discretion that the text does not discipline. The paper closes by identifying the provisions where fidelity to Articles 21 and 22 depends less on the statute than on judicial enforcement, and proposes targeted reforms.



Keywords

Bharatiya Nagarik Suraksha Sanhita; arrest; personal liberty; Article 21; Article 22; due process; police custody; bail.



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References


Statutes and constitutional provisions. Constitution of India, Articles 14, 19, 20(3), 21, 22 and 39A. Bharatiya Nagarik Suraksha Sanhita, 2023, Chapter V and sections 173, 187, 479, 480, 482 and 483. Code of Criminal Procedure, 1973, sections 41 to 41D, 46 to 50A, 56, 57, 167, 436A, 437, 438 and 439.

Cases cited.

Case

Citation

Point

A.K. Gopalan v. State of Madras

AIR 1950 SC 27

Narrow reading of Article 21

Maneka Gandhi v. Union of India

(1978) 1 SCC 248

Fair, just and reasonable procedure

Nandini Satpathy v. P.L. Dani

(1978) 2 SCC 424

Self-incrimination and interrogation

Sunil Batra v. Delhi Administration

(1978) 4 SCC 494

Dignity of prisoners

Hussainara Khatoon v. State of Bihar

(1980) 1 SCC 81

Speedy trial, undertrials

Gurbaksh Singh Sibbia v. State of Punjab

(1980) 2 SCC 565

Anticipatory bail

Prem Shankar Shukla v. Delhi Administration

(1980) 3 SCC 526

Handcuffing

Khatri v. State of Bihar

(1981) 1 SCC 627

Legal aid at first production

Rudul Sah v. State of Bihar

(1983) 4 SCC 141

Compensation for unlawful detention

CBI v. Anupam J. Kulkarni

(1992) 3 SCC 141

Police custody within first fifteen days

Nilabati Behera v. State of Orissa

(1993) 2 SCC 746

Compensation for custodial death

Joginder Kumar v. State of U.P.

(1994) 4 SCC 260

Arrest and necessity

Citizens for Democracy v. State of Assam

(1995) 3 SCC 743

Handcuffing

D.K. Basu v. State of West Bengal

(1997) 1 SCC 416

Arrest and custody guidelines

Siddharam Satlingappa Mhetre v. State of Maharashtra

(2011) 1 SCC 694

Anticipatory bail

Manubhai Ratilal Patel v. State of Gujarat

(2013) 1 SCC 314

Remand and production

Arnesh Kumar v. State of Bihar

(2014) 8 SCC 273

Arrest checklist and remand

K.S. Puttaswamy v. Union of India

(2017) 10 SCC 1

Privacy and dignity

Rakesh Kumar Paul v. State of Assam

(2017) 15 SCC 67

Default bail

Sushila Aggarwal v. State (NCT of Delhi)

(2020) 5 SCC 1

Anticipatory bail duration

Bikramjit Singh v. State of Punjab

(2020) 10 SCC 616

Default bail

Satender Kumar Antil v. CBI

(2022) 10 SCC 51

Bail guidelines

Pankaj Bansal v. Union of India

(2024) 7 SCC 576

Written grounds of arrest

Prabir Purkayastha v. State (NCT of Delhi)

(2024) 8 SCC 254

Written grounds, UAPA

In re: Inhuman Conditions in 1382 Prisons

2024 SCC OnLine SC 3596 (order of 23 Aug 2024)

Section 479 BNSS applies retrospectively

Vihaan Kumar v. State of Haryana

2025

Grounds of arrest under Article 22(1)

Mihir Rajesh Shah v. State of Maharashtra

Decided 6 Nov 2025

Written grounds in all cases

Dr. Rajinder Rajan v. Union of India

Decided April 2026

Grounds of arrest

Secondary sources consulted for recent developments.

Note on verification. Statutory sub-section numbers and law-report citations in this paper were assembled from the author's working knowledge and a limited set of secondary sources. Before submission, check each against the official gazette text of the BNSS and the official or SCC reports, and confirm the current status of the larger-bench reference on written grounds of arrest.

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