No Unnecessary Restraint under Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023

Provision ensuring that arrested persons are not subjected to unnecessary restraint beyond what is required.

Introduction

The criminal justice system recognizes the importance of protecting the dignity and liberty of individuals even when they are lawfully arrested. Arrest does not strip a person of their fundamental rights. Therefore, the law imposes limitations on the manner in which arrested persons may be restrained.

Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 states that a person who has been arrested shall not be subjected to more restraint than is necessary to prevent their escape. This provision corresponds to Section 49 of the Code of Criminal Procedure, 1973.

The provision ensures that the use of physical restraint during arrest remains reasonable and proportionate.

Meaning of Restraint

Restraint refers to any physical or mechanical restriction imposed on a person during arrest in order to prevent them from escaping custody.

Examples of restraint may include:

• Holding the person physically
• Handcuffing
• Placing the person in police custody
• Using other necessary security measures

However, the law strictly prohibits excessive or unnecessary restraint.

Principle of Reasonable Restraint

Section 43 establishes the principle that restraint must be limited to what is necessary for securing the presence of the arrested person.

The police officer must ensure that the restraint used is proportionate to the circumstances.

For example, if the arrested person is cooperative and not likely to escape, harsh restraints such as handcuffing may not be justified.

Prohibition of Excessive Restraint

The law prohibits the use of unnecessary or excessive force during arrest.

Unnecessary restraint may include:

• Using excessive force when the accused is not resisting.
• Handcuffing a person without justification.
• Subjecting the arrested person to degrading or humiliating treatment.

Such actions may violate constitutional protections and legal safeguards.

Protection of Personal Liberty

The principle behind Section 43 is closely connected with the protection of personal liberty under Article 21 of the Constitution of India.

Even after arrest, individuals retain the right to be treated with dignity and fairness.

The police must therefore exercise their authority responsibly.

Judicial Principles on Restraint

Indian courts have repeatedly emphasized that unnecessary restraint during arrest is unlawful.

In the landmark case of:

• Prem Shankar Shukla v. Delhi Administration

the Supreme Court held that handcuffing should not be routinely used and must be justified by specific circumstances.

Similarly, in:

• Citizens for Democracy v. State of Assam

the Court ruled that handcuffing should be avoided unless there is clear necessity, such as risk of escape or danger posed by the accused.

These judicial principles reinforce the rule against unnecessary restraint.

Connection with Other BNSS Provisions

Section 43 must be read along with other provisions relating to arrest under the Bharatiya Nagarik Suraksha Sanhita, 2023, including:

• Section 35 – Arrest of persons
• Section 36 – Procedure of arrest and duties of officer making arrest
• Section 40 – Arrest how made
• Section 41 – Search of place entered by person sought to be arrested

Together, these provisions regulate the process of lawful arrest and safeguard the rights of individuals.

Illustrative Example

If a person is arrested for a minor offence and cooperates with the police, the officer should not use unnecessary restraints such as handcuffs.

However, if the accused is known to be violent or has attempted to escape custody, reasonable restraints may be used to prevent escape.

Important Points for Examination

• Section 43 BNSS corresponds to Section 49 CrPC.
• Arrested persons must not be subjected to unnecessary restraint.
• Restraint must only be used to prevent escape.
• Excessive force or humiliating treatment is prohibited.
• Courts discourage routine use of handcuffs.

Conclusion

Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ensures that arrested individuals are treated with fairness and dignity. By prohibiting unnecessary restraint, the provision protects personal liberty while allowing police officers to maintain custody of accused persons when necessary. This rule reflects the broader constitutional commitment to humane treatment and respect for individual rights within the criminal justice system.