ExplainedLaw
Detained, not arrested: what the BNSS lets police do to stop a protest before it starts
Thousands of people, from chief ministers to students, have been picked up in Delhi this month during the protests against the Chief Election Commissioner. The police have relied on a handful of sections of the new criminal procedure code. What those sections allow, how long people can be held, and where the limits lie.
The short answer
The Bharatiya Nagarik Suraksha Sanhita (BNSS) lets police arrest someone without a warrant to prevent a cognizable offence, under Section 170, and detain or remove anyone who resists or ignores a lawful police direction, under Section 172. In both cases the person cannot ordinarily be held beyond 24 hours. An Executive Magistrate can then, under Section 126, ask the person to sign a bond to keep the peace for up to a year. Detention under preventive detention laws such as the National Security Act is a separate and far more serious power.
Is being detained the same as being arrested?
Not quite, though in law the line is thinner than the words suggest.
An arrest is the formal act of taking someone into custody under a legal power, usually because police suspect the person has committed an offence. “Detention” at a protest normally means something shorter: police stop people, put them in buses and hold them at a stadium or police station for some hours before letting them go.
Whether either is lawful depends on the power used and the reason for using it, not on the label. In October, Delhi Police have used both words. They described the CJP leaders Abhijeet Dipke, Ashutosh Ranka and Saurav Das, held at Delhi airport on 10 October, as under “preventive arrest u/s 126/170 BNSS”.
What does Section 170 allow?
It lets police arrest a person without a warrant to stop a cognizable offence that they believe is being planned.
The section says a police officer “knowing of a design to commit any cognizable offence” may arrest the person without orders from a magistrate and without a warrant. There is a condition: it must appear to the officer that the offence “cannot be otherwise prevented”.
The arrested person cannot be held for more than 24 hours from the time of arrest, unless another provision of the BNSS or another law allows longer custody. Section 170 replaced Section 151 of the old Code of Criminal Procedure (CrPC) when the BNSS came into force on 1 July 2024.
And Section 172?
It is a new power that obliges everyone to obey lawful police directions given to prevent offences, and lets police detain or remove those who do not.
Under Section 172, “all persons shall be bound to conform to the lawful directions of a police officer” issued under the BNSS chapter on preventive action. A person who resists or disregards such a direction can be detained or removed. The police must then either take the person before a magistrate or, in petty cases, release them “as soon as possible within a period of twenty-four hours”.
The CrPC had no such clause. Critics have said its wording gives police wide discretion, since almost any instruction at a protest, such as an order to move, can be framed as a direction to prevent an offence.
Four powers used against protesters, and how they differ
What happens after the 24 hours?
Most protesters are simply let go, but some are taken before an Executive Magistrate under Section 126.
Section 126, the successor to CrPC Section 107, allows an Executive Magistrate who has information that a person is likely to commit a breach of the peace to ask that person to show why they should not sign a bond to keep the peace for a period of up to one year.
That is what happened to the three CJP leaders. On 11 October an Executive Magistrate at Delhi Cantonment police station released them on a ₹50,000 surety bond each, with the condition of no breach of the peace for a year. Breaking such a bond can lead to the surety being forfeited and the person being sent to jail for the rest of the period.
What rights does a detained person have?
The basic protections of arrest apply: the grounds, a lawyer, and a magistrate within 24 hours.
Article 22 of the Constitution says an arrested person must be told the grounds of arrest, may consult a lawyer of their choice, and must be produced before a magistrate within 24 hours, not counting travel time. The Supreme Court’s 1997 ruling in D K Basu v. State of West Bengal added more: officers must carry clear identification, prepare an arrest memo and inform a relative or friend. The BNSS also bars the arrest of women between sunset and sunrise except in exceptional cases with a magistrate’s prior permission.
Several petitions now before the Supreme Court, from the Bar associations, journalists’ groups and DYFI, say these safeguards were ignored in Delhi on 10 and 11 October, with people held in buses for hours without being told why or given any memo.
Is this the same as preventive detention under the NSA?
No. That is a separate and much harsher regime.
Laws such as the National Security Act, 1980, allow the state to detain a person for up to a year without trial on the ground that they might act against security or public order. Article 22 itself carves such laws out of the ordinary 24-hour rule, and replaces it with review by an advisory board. No one detained at the Delhi protests is known to have been held under such a law.
What has the Supreme Court said?
That peaceful people cannot be detained outside the law.
At a special sitting on Sunday 11 October, a bench of Justices Joymalya Bagchi and V Mohana said nobody should be detained “save and except by procedure established by law”, particularly people in peaceful, unarmed gatherings outside the area covered by prohibitory orders. The court is now hearing the petitions on the detentions. How it reads Section 172, which it has not yet examined in detail, may decide how much room police have at protests for years to come.
The documents
- The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (Bill text)PRS Legislative Research, 12 December 2023