The power of arrest represents one of the most coercive instruments available to the State within the criminal justice system. While arrest is often justified as a necessary tool for maintaining public order and ensuring effective investigation, it simultaneously poses a serious threat to the fundamental right to personal liberty guaranteed under Articles 21 and 22 of the Constitution of India. The transition from the Code of Criminal Procedure, 1973 to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a significant moment in India’s criminal law reform. Section 35 of the BNSS, which replaces Section 41 of the Code of Criminal Procedure, seeks to regulate police powers of arrest without warrant by prescribing conditions, procedural safeguards, and recording requirements. This paper critically examines whether Section 35 of the BNSS meaningfully strengthens constitutional safeguards against arbitrary arrest or merely reproduces the framework previously developed under judicial interpretation. By comparatively analysing the earlier statutory regime under the Code of Criminal Procedure and the safeguards evolved through landmark decisions such as Maneka Gandhi v. Union of India, Joginder Kumar v. State of U.P., D.K. Basu v. State of West Bengal, and Arnesh Kumar v. State of Bihar, the study evaluates the extent to which the new provision aligns with the constitutional doctrine of fairness, reasonableness, and proportionality. Adopting a doctrinal research methodology, the paper argues that although Section 35 introduces structured conditions and documentation requirements, the effectiveness of these safeguards depends largely on institutional compliance and judicial vigilance. The study concludes that the reform represents incremental codification rather than transformative change, thereby raising important questions regarding the implementation of constitutional protections in arrest jurisprudence.
Singh et al. (Sun,) studied this question.