Section 43 of BNSS: The Complete Guide to How Arrest is Made Under India's New Criminal Law
Imagine you are walking home from work one evening when a
Section 43 of BNSS: The Complete Guide to How Arrest is Made Under India's New Criminal Law
Imagine you are walking home from work one evening when a police officer approaches you, flashes their badge, and says you are under arrest. Your heart pounds. Your mind races. What happens next? Can they touch you? Can they use handcuffs? What if you are a woman? What if you resist? These are not just hypothetical questions — they are real situations that ordinary Indians face every single day. The answers to all of these questions now lie in Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the law that replaced the old Code of Criminal Procedure (CrPC) on July 1, 2024.
Understanding Section 43 BNSS is not just for lawyers and law students. It is for every citizen who wants to know their rights, every family member who worries about a loved one in police custody, and every person who believes that power must come with accountability. This single section governs the most physically intrusive act that the State can perform against an individual — the act of arrest. It tells the police how they must make an arrest, what force they can use, what special protections exist for women, and what deadly limits can never be crossed.
In this comprehensive guide, we will walk through every corner of Section 43 of BNSS in simple, everyday language. We will explore what the law actually says, what each sub-section means in practice, how it differs from the old CrPC, what landmark court judgments have shaped its interpretation, and what you should do if you ever find yourself or someone you love facing arrest. Let us dive deep into this critical provision that stands at the intersection of police power and personal liberty.
What is Section 43 BNSS and Why Does It Matter?
At its core, Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 answers one fundamental question: How should an arrest be made? This seems simple, but beneath this simplicity lies a complex web of constitutional values, human rights, and practical policing challenges. The section is titled "Arrest how made" and it contains five sub-sections that regulate everything from the physical touch of arrest to the use of handcuffs, from the arrest of women to the ultimate limit on police power — the taking of life.
The importance of this section cannot be overstated. Arrest is the first point of contact between the individual and the criminal justice system. If this contact is abusive, arbitrary, or humiliating, the entire system loses legitimacy. The Supreme Court of India has repeatedly emphasized that Article 21 of the Constitution — which guarantees the right to life and personal liberty — protects not just against illegal detention but also against arbitrary and excessive force during arrest. Section 43 BNSS gives statutory flesh to these constitutional bones.
Before the BNSS, the old Section 46 of the CrPC, 1973 governed arrest procedures. While the basic framework was similar, the BNSS has introduced significant changes — particularly regarding the use of handcuffs and the arrest of women — that reflect evolving standards of human rights and gender sensitivity. Understanding these changes is essential for anyone who wants to navigate India's new criminal justice landscape.
If you want to understand the broader context of how India's criminal courts are structured under this new law, you should read our detailed guide on Section 6 of BNSS - Criminal Court Hierarchy, which explains how cases flow through the judicial system after arrest.
Breaking Down Section 43(1): The Physical Act of Arrest
The first sub-section of Section 43 BNSS deals with the most basic question: What exactly must a police officer do to make an arrest legal?
The law says that in making an arrest, the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested, unless there is a submission to custody by word or action. This means that arrest is fundamentally a physical act. The officer must either physically touch the person or restrain their body in some way. A verbal announcement of arrest, by itself, is not enough unless the person voluntarily submits.
However, the law recognizes a practical reality. If a person says "I surrender" and holds out their hands, or otherwise indicates by their actions that they are submitting to custody, then the officer does not need to use physical force. This balance between physical restraint and voluntary submission reflects the principle that arrest should involve no more force than is absolutely necessary.
The most important part of this sub-section is the special protection for women. The law provides that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed. This means that for women, the law starts with the assumption that a verbal notice of arrest is sufficient. The officer does not need to immediately touch or physically restrain the woman.
But there is more. The law goes on to say that unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest. This is a remarkable provision that reflects deep respect for the dignity and bodily autonomy of women. It recognizes that for a woman, being touched by an unknown male police officer can be traumatic, humiliating, and violative of her sense of safety.
The law also imposes an important duty: the police officer must give information regarding such arrest and the place where she is being held to any of her relatives, friends, or such other persons as may be disclosed or mentioned by her. This ensures that a woman in custody is not disappeared into the system. Someone who cares about her will know where she is.
Let us break down the key points of this sub-section:
- Physical touch or confinement is the default rule for effecting arrest
- Voluntary submission by word or action eliminates the need for physical force
- For women, oral intimation is presumed sufficient unless circumstances suggest otherwise
- Male officers cannot touch a woman during arrest unless a female officer is unavailable or circumstances demand it
- Information about the arrest and location must be given to the woman's chosen contacts
This sub-section is a powerful example of how the law can be both practical and principled. It gives the police clear guidance while protecting vulnerable individuals from unnecessary humiliation.
If you are interested in understanding what happens when police take someone into custody and how long they can legally hold them, our article on Section 58 of BNSS - 24-Hour Shield That Protects Every Indian provides crucial information about the 24-hour production rule.
Section 43(2): When Resistance Meets Reasonable Force
What happens if the person being arrested does not cooperate? What if they run? What if they fight back? Section 43(2) of BNSS addresses these situations directly and unambiguously.
The law states that if such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. The phrase "all means necessary" gives the police significant latitude. If someone is running away, the officer can chase them. If someone is fighting, the officer can use physical force to subdue them. If someone is trying to escape in a vehicle, the officer can take steps to stop the vehicle.
However, this power is not unlimited. The word "necessary" is crucial. It means the force used must be proportionate to the resistance offered. The officer cannot use a sledgehammer to crack a nut. If a person offers mild resistance, the officer cannot respond with lethal force. The force must be reasonably necessary to overcome the resistance and complete the arrest.
This sub-section must be read together with Section 43(4), which places an absolute limit on police power. We will discuss that life-saving provision shortly.
The key practical points from this sub-section are:
- Police may use force when faced with forcible resistance
- Police may use force when the person attempts to evade arrest
- The force must be "necessary" — meaning proportionate and reasonable under the circumstances
- The purpose is always to effect the arrest, not to punish or take revenge
It is worth noting that this provision applies not just to police officers but to "other person" making the arrest. This includes private persons making arrests under Section 40 of BNSS, as well as any other person authorized by law to make an arrest.
To understand the broader rules about when police can arrest you without a warrant and what notice they must give first, read our detailed guide on Section 35 of BNSS - Arrest Rules, Notice Before Arrest, and Your Rights in 2026.
Section 43(3): The Handcuff Controversy — Bringing Back a Colonial Tool?
Perhaps the most debated and controversial part of Section 43 BNSS is sub-section (3), which deals with handcuffing. This provision has generated significant discussion among human rights activists, lawyers, and judges because it appears to reverse decades of Supreme Court jurisprudence that had severely restricted the use of handcuffs.
The law states that the police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or while producing such person before the court who falls into specific categories. Let us look at who can be handcuffed under this provision:
- Habitual or repeat offenders — people with a history of criminal behavior
- Persons who escaped from custody — those who have already shown they can escape
- Persons who committed organized crime — members of criminal syndicates
- Persons who committed terrorist acts — those involved in terrorism
- Persons involved in drug-related crime — serious narcotics offenders
- Persons involved in illegal possession of arms and ammunition — armed criminals
- Persons who committed murder — the most serious violent offenders
- Persons who committed rape — sexual violence perpetrators
- Persons who committed acid attack — perpetrators of this heinous crime
- Persons involved in counterfeiting of coins and currency-notes — economic offenders threatening the nation's financial system
- Persons involved in human trafficking — modern-day slave traders
- Persons who committed sexual offences against children — the most vulnerable victims
- Persons who committed offences against the State — including acts endangering sovereignty, unity and integrity of India or economic offences
The phrase "keeping in view the nature and gravity of the offence" gives the police officer discretion. The officer must assess whether the offence is serious enough to justify handcuffing. Not every person accused of these crimes will automatically be handcuffed — the officer must exercise judgment.
This provision represents a significant shift from the Supreme Court's landmark judgments in Sunil Batra v. Delhi Administration (1978) and Prem Shankar Shukla v. Delhi Administration (1980), where the Court had held that handcuffing should be restricted to cases where there is a clear and present danger of escape, and that routine handcuffing violates Article 21. The BNSS has effectively codified a broader handcuffing power than what the Supreme Court had permitted, though it still requires the officer to consider the nature and gravity of the offence.
Critics argue that this opens the door to abuse and humiliation, particularly for undertrial prisoners who are presumed innocent. Supporters argue that it gives police a necessary tool to handle dangerous criminals and prevent escapes during transit.
The key practical takeaways are:
- Handcuffing is permitted but not mandatory — the officer has discretion
- Handcuffing is limited to serious offences — the list is specific and exhaustive
- The nature and gravity of the offence must be considered before handcuffing
- Handcuffing can be used during arrest and during production before court
If you want to understand your fundamental right to legal representation when facing police interrogation, our article on Section 38 of BNSS - Your Right to Meet a Lawyer During Police Interrogation is essential reading.
Section 43(4): The Red Line That Can Never Be Crossed
If there is one provision in Section 43 BNSS that should give every citizen comfort, it is sub-section (4). This sub-section draws a bright red line that no police officer can ever cross, no matter how dangerous the suspect, no matter how heinous the crime.
The law states in crystal clear terms: "Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life."
This means that a police officer cannot kill a suspect during arrest unless that person is accused of a crime that carries the death penalty or life imprisonment. Even then, the officer can only use lethal force if it is absolutely necessary to prevent escape or protect life — the sub-section does not give a license to kill, it merely states that the section itself does not create such a right.
This provision is a powerful safeguard against encounter killings and fake encounters that have plagued Indian policing. It means that if a person is accused of a minor offence — theft, assault, fraud, or any crime punishable with less than life imprisonment — the police cannot claim that Section 43 gave them the right to cause their death during arrest.
The Supreme Court has in numerous cases condemned extrajudicial killings and held that every death in police custody or during arrest must be thoroughly investigated. Section 43(4) BNSS gives statutory backing to this judicial wisdom.
The practical implications are profound:
- Police cannot kill during arrest for minor offences — period
- Only persons accused of death penalty or life imprisonment offences can potentially face lethal force, and even then only under strict necessity
- Any death during arrest must be independently investigated
- Officers violating this provision face criminal prosecution
This sub-section is a testament to the principle that arrest is not punishment, and that the police are not judges, juries, or executioners. Their job is to bring the accused before the court, not to deliver summary justice.
Section 43(5): Protecting Women from the Darkness of Night
The final sub-section of Section 43 BNSS addresses a specific vulnerability that women have historically faced: arrest after sunset and before sunrise. In many parts of India, the darkness of night has been used to cover abuses, illegal arrests, and worse. Section 43(5) is designed to end this practice.
The law states: "Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise." This is a blanket prohibition with a narrow exception. The default rule is clear: women cannot be arrested at night.
But the law recognizes that reality is complex. Sometimes, exceptional circumstances exist — perhaps a woman is caught in the act of a serious crime at night, or there is an urgent need to prevent her from fleeing the country, or there is a risk to public safety. For such rare situations, the law provides a strict procedure:
- The woman police officer must make a written report explaining the exceptional circumstances
- She must obtain prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made
- Only after such permission is granted can the night arrest proceed
This two-layer protection — the written report and the judicial permission — ensures that night arrests of women are rare, documented, and subject to independent oversight. It prevents the midnight knock on the door that has been used to intimidate and harass women across the country.
The key protections are:
- General prohibition on arresting women between sunset and sunrise
- Exceptional circumstances must be justified in writing by a woman police officer
- Prior judicial permission from a first-class magistrate is mandatory
- The magistrate's jurisdiction must cover the place of offence or arrest
This provision aligns with international human rights standards and reflects India's constitutional commitment to gender equality and dignity under Articles 14, 15, and 21.
How Section 43 BNSS Differs from the Old CrPC
For those familiar with the old law, it is important to understand how Section 43 BNSS differs from Section 46 of the CrPC, 1973. While the basic structure is similar, there are significant changes:
- Handcuffing was not explicitly mentioned in Section 46 CrPC — the BNSS has explicitly codified it with specific categories
- The old law did not have such a detailed list of offences for which handcuffing was permitted
- The protection for women in sub-section (1) is more detailed in the BNSS, with explicit presumption of submission and mandatory information to relatives
- The night arrest provision for women existed in the CrPC but the BNSS has made the procedure more specific and rigorous
- The lethal force limitation in sub-section (4) existed in the CrPC but the BNSS has retained it with the same absolute clarity
These changes show that the BNSS is not merely a renamed CrPC. It is a thoughtful update that responds to contemporary challenges while preserving core protections.
Your Rights During Arrest: What Section 43 Means for You
Knowing Section 43 BNSS is not just academic knowledge. It is practical power. Here is what you should remember if you or someone you know is being arrested:
- You have the right to be arrested with no more force than necessary
- If you are a woman, you have the right to be arrested by a female officer unless circumstances demand otherwise
- You have the right not to be touched by a male officer if you are a woman, unless no female officer is available
- If you are a woman, your relatives or friends must be informed of your arrest and location
- You cannot be handcuffed unless you fall into the specific categories and the officer considers the nature and gravity of the offence
- Police cannot kill you during arrest unless you are accused of a death penalty or life imprisonment offence
- If you are a woman, you generally cannot be arrested at night without prior magistrate permission
These rights are not gifts from the police. They are constitutional protections given legal form by Section 43 BNSS. Exercise them calmly, respectfully, and firmly.
Connected Provisions: The Web of Arrest Law
Section 43 BNSS does not operate in isolation. It is part of a larger web of provisions that govern arrest and custody. Understanding these connected sections gives you a complete picture of your rights:
- Section 35 BNSS — When police can arrest without warrant and when they must give notice instead
- Section 38 BNSS — Your right to meet a lawyer during police interrogation
- Section 40 BNSS — Arrest by private persons and the procedure they must follow
- Section 47 BNSS — Your right to be informed of the grounds of arrest and your right to bail
- Section 48 BNSS — The duty of police to inform your relatives or friends about your arrest
- Section 50 BNSS — The 24-hour rule: police cannot detain you for more than 24 hours without magistrate permission
- Section 51 BNSS — Medical examination of arrested persons, expanded to allow any police officer to request it
- Section 58 BNSS — The protection that every arrested person must be produced before a magistrate within 24 hours
Together, these provisions create a comprehensive shield for the arrested person, ensuring that the enormous power of arrest is exercised within strict constitutional and statutory limits.
Conclusion: Section 43 as the Guardian of Dignity in Custody
Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is far more than a technical provision about how to physically arrest someone. It is a charter of dignity for the accused, a rulebook for the police, and a safeguard for democratic values. It recognizes that arrest is not just a legal formality — it is a moment of profound vulnerability where the power of the State meets the fragility of the individual.
The section tells us that:
- Arrest must be human — with no more force than necessary
- Arrest must be gender-sensitive — with special protections for women
- Arrest must be proportionate — with handcuffing reserved for the most serious offenders
- Arrest must never be lethal — except in the most extreme cases
- Arrest must be transparent — with information given to family and judicial oversight for night arrests
As India moves forward with the BNSS, Section 43 will be tested in thousands of police stations, debated in countless courtrooms, and applied in millions of encounters between citizens and the State. Its true success will be measured not by how many people are arrested, but by how many arrests are conducted with dignity, proportion, and respect for human rights.
For the common citizen, understanding Section 43 means understanding that you are not powerless when the police come for you. You have rights. You have dignity. And the law — finally, clearly, and strongly — is on your side.
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