By Mentor R.K. Samyal, Advocate
Author’s Note
The enactment of the Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Bharatiya Sakshya Adhiniyam, 2023 marks India’s bold attempt to overhaul its colonial-era criminal laws — the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Indian Evidence Act, 1872. These new laws, set to come into force on 1 July 2024, aim to create a more humane, citizen-centric framework of justice.
However, beneath the reformist veneer, several provisions — particularly those concerning police remand and custodial detention — raise serious concerns about the preservation of constitutional liberties and human dignity. The remand provisions under Section 187 of the BNSS warrant close scrutiny to ensure that the law does not regress into a regime of excessive police control.
- The Concept of Remand: Balancing Liberty and Investigation
Under the Code of Criminal Procedure, 1973, when a person is arrested, they must be produced before a Magistrate within 24 hours, as per Section 57 of the Cr.P.C. Any further custody must comply with the procedural safeguards under Section 167, which strictly regulates both police and judicial custody.
If the police require custodial interrogation, they must seek police remand through a judicial order. Once police custody ends, the accused can only be sent to judicial custody, where they are held in a prison rather than a police station. Importantly, the law caps police custody at a maximum of 15 days in total, irrespective of how many times remand is sought during the investigation.
The legislative intent behind these safeguards is clear — to prevent abuse of power, coercive interrogation, and custodial torture. The Supreme Court in State (Delhi Admn.) v. Dharampal (1980) and later in C.B.I. v. Anupam J. Kulkarni (1992) reaffirmed that detention in police custody is disfavoured in law and must be sanctioned only under special circumstances, subject to judicial scrutiny and limited to the first 15 days of arrest.
- The New Remand Framework under BNSS, 2023
The BNSS replaces Section 167 of the Cr.P.C. with Section 187, introducing a major change in the structure of police custody.
Under Section 187(2):
- The Magistrate may authorize police custody for a cumulative period of 15 days,
- But this custody can now be divided into separate intervals,
- And — crucially — may be availed at any time during the first 40 or 60 days of the total pre-charge-sheet detention period (which remains 60 or 90 days, depending on the offence).
Further, Section 187(3) states that:
“The Magistrate may authorize the detention of the accused person beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so.”
This vague phrasing — without specifying whether the “detention” refers to police or judicial custody — creates dangerous ambiguity. It potentially allows the police to seek custody even weeks after the arrest, diluting one of the most fundamental protections in Indian criminal jurisprudence.
- The Constitutional Concerns: Liberty under Threat
The 15-day rule under the Cr.P.C. was not merely procedural — it was constitutional in spirit, derived from the guarantees under Article 21 (Right to Life and Personal Liberty) and Article 22(2) of the Constitution.
The settled position, endorsed by courts for decades, recognized that prolonged police custody is prone to abuse and psychological coercion. By extending the window for police custody beyond the initial 15 days, the BNSS weakens this constitutional shield.
Even though proponents argue that such custody extensions will be rare, the very existence of such discretion in the hands of the police and lower courts poses a risk to civil liberties. The strongest arm of the executive is thus empowered to encroach upon the most vulnerable moment of an individual’s liberty — the pre-trial stage.
- International and Human Rights Standards
India is a signatory to several international covenants that emphasize humane treatment and minimal pre-trial detention.
- Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR), 1966 mandates that all persons deprived of liberty shall be treated with dignity and respect.
- The United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988) prohibits prolonged police custody and insists on judicial oversight.
- The Convention Against Torture, 1984, though not ratified by India, articulates a global consensus that police custody must remain brief, humane, and closely monitored.
By contrast, the BNSS framework extends the duration during which an accused may be held in police custody for interrogation — a regression that may place India in potential conflict with its international obligations.
- Comparative Perspective: How Other Democracies Handle Detention
Most democratic jurisdictions impose far stricter limits on pre-trial detention:
- United Kingdom: For ordinary offences, the police may detain a suspect for up to 24 hours, extendable to 36 hours for serious crimes and a maximum of 96 hours with judicial authorization.
- United States: The Fourth Amendment and subsequent jurisprudence require that an arrested person must be produced before a judicial authority within 48 hours.
- European Union: The European Court of Human Rights insists that detention must be “promptly” reviewed, and police custody beyond 48 hours is permissible only in exceptional cases.
In contrast, the BNSS model potentially allows weeks of police custody spread over months, an anachronism in the context of global human rights standards.
- Judicial Oversight and the Role of Magistrates
The Magistrate’s discretion under Section 187 must be exercised with the utmost care and restraint. The provision’s language — allowing custody “from time to time” — cannot be interpreted as carte blanche for the police. Judicial remand must continue to act as a constitutional buffer, not as a rubber stamp for extended interrogation.
Magistrates must record specific reasons for authorizing custody, ensure medical examination of the accused, and verify that interrogation conditions meet Article 21 standards of dignity and fairness. Failure to do so would render the process unconstitutional.
- Conclusion: Liberty Cannot Be Deferred
The Bharatiya Nagarik Suraksha Sanhita, 2023 promises modernization but risks sliding into procedural authoritarianism if provisions like Section 187 are left unamended. Extending the police custody window under the guise of flexibility undermines both the rule of law and the constitutional vision of justice.
True reform lies not in expanding executive powers but in strengthening judicial oversight, improving investigative efficiency, and upholding the sanctity of individual liberty. A humane legal system must reflect not just the authority of the State but also the dignity of the citizen it governs.
Unless revisited, the BNSS may inadvertently replace colonial rigidity with a new form of procedural absolutism — one that threatens to erode the very rights it seeks to protect.
Disclaimer
The views and opinions expressed in this article are solely those of the author, R.K. Samyal, Advocate, based on his independent legal analysis and interpretation of the Bharatiya Nagarik Suraksha Sanhita, 2023. They do not necessarily represent the views of any institution, forum, or organization with which the author is associated. This article is intended purely for academic and informational purposes and should not be construed as legal advice.