Prevents excessive physical restraint during arrest beyond what is necessary for custody.
Introduction
Section 46 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides that a person arrested shall not be subjected to more restraint than is necessary to prevent escape. The provision ensures humane treatment during arrest and restricts the use of force, handcuffs, or other physical restraints unless justified by circumstances. It reinforces constitutional protections against arbitrary and degrading custodial practices.
The section reflects the guarantee of personal liberty under Article 21 of the Constitution of India, requiring fairness, dignity, and proportionality in arrest procedures.
Objective of the Provision
The objectives of Section 46 BNSS are
- to prevent excessive restraint during arrest
- to ensure proportional use of force by arresting authorities
- to protect dignity and bodily integrity of arrested persons
- to align arrest practices with constitutional safeguards
The provision ensures that restraint remains necessity-based rather than routine.
Meaning / Concept
Principle of Minimum Necessary Restraint
Section 46 establishes that restraint must be limited strictly to what is required to
- prevent escape
- secure custody
- ensure safe transportation of the arrested person
Routine or mechanical use of restraints such as handcuffs is discouraged.
Protection of Human Dignity During Arrest
The provision reflects the broader principle that arrest does not extinguish fundamental rights. Even while in custody, individuals retain the right to humane treatment.
Thus, restraint must always remain proportionate and justified.
Detailed Explanation of the Section
Section 46 BNSS provides that
- a person arrested shall not be subjected to unnecessary restraint
- restraint must be limited to what is reasonably required to prevent escape
- use of handcuffs or similar restraints must be justified by circumstances
- arresting authorities must exercise discretion consistent with necessity and proportionality
The section does not prohibit restraint entirely. Instead, it regulates its extent.
Situations where restraint may be justified include
- risk of escape
- violent conduct by the accused
- involvement in serious offences
- threat to safety of police personnel or public
In absence of such circumstances, unnecessary restraint becomes unlawful.
Procedure or Legal Framework
The procedural safeguards under Section 46 BNSS generally require
- assessment of necessity before applying restraints
- avoidance of routine handcuffing
- documentation of reasons where restraint is applied
- compliance with constitutional standards during custody and transport
Failure to follow these safeguards may amount to violation of personal liberty.
Judicial Interpretation
Indian courts have repeatedly emphasized that unnecessary restraint during arrest violates constitutional protections.
In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526, the Supreme Court held that handcuffing is prima facie inhuman and unreasonable unless justified by clear necessity.
In Citizens for Democracy v. State of Assam (1995) 3 SCC 743, the Court ruled that handcuffing cannot be routine and requires judicial approval in appropriate cases.
In Sunil Batra v. Delhi Administration (1978) 4 SCC 494, the Supreme Court emphasized that prisoners and arrested persons retain fundamental rights under Article 21 and must not be subjected to degrading treatment.
These decisions form the constitutional foundation of Section 46 BNSS.
Importance of the Provision
Section 46 BNSS is important because
- it prevents misuse of physical restraints during arrest
- it protects dignity of arrested persons
- it ensures proportionality in custodial practices
- it strengthens accountability of arresting authorities
The provision promotes humane standards in criminal procedure.
Connection with Other Sections
Section 46 BNSS operates alongside related arrest safeguards under the Sanhita
- Section 43 BNSS – Arrest how made
- Section 36 BNSS – Procedure of arrest and duties of officer making arrest
- Section 38 BNSS – Right of arrested person to meet an advocate during interrogation
- Section 50 BNSS – Person arrested to be informed of grounds of arrest and right to bail
Corresponding Provision under Old Law
Section 46 BNSS corresponds to Section 49 of the Code of Criminal Procedure, 1973.
Illustrative Example
A person accused of a minor economic offence voluntarily cooperates with police during arrest and does not attempt to escape. The police nevertheless apply handcuffs without justification. Such restraint would violate Section 46 BNSS because it exceeds what is necessary to secure custody.
Conclusion
Section 46 of the Bharatiya Nagarik Suraksha Sanhita, 2023 establishes the principle that restraint during arrest must be limited to what is necessary to prevent escape. By restricting excessive physical control and discouraging routine handcuffing, the provision protects dignity, liberty, and proportionality within the arrest process.
