ABSTRACT
The new legislative framework Bhartiya Nagarik Suraksha Sanhita (hereinafter BNSS) which came into force on 1st July 2023, introduced Section 187[1] which is a restructured version of section 167[2] of Code of Civil Procedure, 1967 (hereinafter CrPC). The restructuring led to the extension of remand period in police custody from 15 to 40-60 days. Researchers have already pointed out this alteration’s negative impact to Article 21[3] of the Indian Constitution as the extension of the remand period indirectly threatens the constitutional safeguard provided under Article 21[4]. But the research gap exists as no paper examines the origin of this constitutional defect. The Supreme Court in its landmark case of V. Senthil Balaji v. The State Represented by Deputy Director[5], which overruled CBI v. Anupam J kulkarni[6] without conducting any proportionality analysis on Article 21[7]. This paper aims to establish that this is not an independent legislative overstep but a pre-existing judicial error. The paper concludes on the requirement of the Supreme Court acknowledging and reviewing its 2023 ruling along with constitutional review on Section 187[8]. Therefore, the paper aims for a self-correction mechanism that no court acknowledges comfortably but which the custodial violence record of India necessitates.
Keywords: Section 187 BNSS, Custodial violence, Remand Period, Article 21, Constitutional review.
INTRODUCTION
The Ministry of Home Affairs in July 2022 revealed in the Parliament that from 2020-2022 India has witnessed 4484 custodial deaths[9]. Shortly after this data was revealed the Supreme court rendered a judgment that extended the police custodial period rather than curbing it. In the judgement of V. Senthil Balaji v. The State Represented by Deputy Director[10] the Supreme Court overruled thirty years of protective jurisprudential framework established in the case of CBI v. Anupam J kulkarni[11] through neither acknowledging the importance of the constitutional safeguard extended by the Article 21[12] nor the recent custodial death data released by the Central Government. The legislature consecutively codified this extension of remand period into Section 187 of the Bharatiya Nagarik Suraksha Sanhita[13]. The origin of this constitutional crisis was a judicial error way before it became a legislative error.
Articles about Section 187[14] have increased since July 2024. Alam and Ahmad[15] offer the most detailed doctrinal comparison between Section 167[16] CrPC and Section 187[17] BNSS, recognizing the issue of intermittent custody as a constitutional one under Article 21[18]. In a letter to the Home Minister in July 2024, the People’s Union for Civil Liberties (PUCL)[19] raised this section. The Citizens for Justice and Peace[20], has looked at the drastic change in custody law. Yet, all the works so far consider Section 187[21] as a legislative problem that should be fixed either by legislation or judiciary. No one has so far written a paper that has considered V. Senthil Balaji as being the starting constitutional point a lacuna this article seeks to fill.
The paper is divided into four parts analytically. Part I identifies a thirty-year constitutional basis of the Kulkarni safeguard. Part II evaluates V. Senthil Balaji[22] and finds that the Court rejected Kulkarni although the Court did not have the constitutional grounds to do this. Part III documents how Section 187[23] BNSS through a judicial error of this kind has only ratified and codified the mistake. Part IV deals with the problem of self-correction this has created for the Supreme Court and suggests a way forward.
RESEARCH METHODOLOGY
The Research methodology this paper adopts is a doctrinal legal research methodology, which examines the primary legal sources i.e. the constitutional provisions, legislative history, parliamentary records, statues and judicial precedents which helps to construct and analyses a legal argument. The doctrinal approach is the right method here as the issue involved is about the constitutional law: if the judicial decision is consistent with the doctrinal norms, and whether the relevant statute on the point is consistent with the norms of Article 21[24] of the Constitution of India. The primary sources included are: Articles 21[25] and 22[26] of the Constitution of India; Section 167[27] of the CrPC, 1973; Section 187[28] of the Bharatiya Nagarik Suraksha Sanhita, 2023; the judgment in V. Senthil Balaji v. The State Represented by Deputy Director[29]; the Standing Committee on Home Affairs Report on the BNSS Bill, 2023[30]; and custodial death statistics[31] issued by the Ministry of Home Affairs and the National Human Rights Commission.
Secondary sources: Published journal articles; Professional commentaries issued by legal bodies, including PUCL and Project 39A (NLU Delhi).; Papers on the SSRN. There is no empirical or sociolegal way in this paper. We do not undertake interviews, surveys or numerical modelling. It is wholly doctrinal in its analytical contribution: it identifies a constitutional defect in a judicial decision and tracks the influence of that defect in the subsequent legislation.
Literature Review
Section 187[32] BNSS has been the focus of three distinct streams in the existing literature. But this paper not only builds on those streams but also takes one step further. The first category of literature discusses the introduction of three new criminal laws from a general reform perspective. Yeshwant[33] reviews the major changes introduced by BNS, BNSS, and BSA and singles out the provisions on extended custody and mob lynching as the most prominent ones. Singh and Jaswal[34] see the reforms as an attempt at decolonization and they through the new laws align with democratic values, which are questioned by the authors. In other words, these works provide a very useful background but do not really engage with Section 187[35] at a constitutional level.
The second category of literature focuses on custody issues and so directly deals with Section 187. Alam and Ahmad[36]-the most in-depth study in this category – carry out a detailed comparison of the provisions of Section 167[37] CrPC and Section 187[38] BNSS, and note the bail status condition, the doing away with house arrest, and the longer remand period as the parts that are constitutionally most at odds. Besides, they suggest greater magisterial scrutiny and the giving back of judicial discretion for alternatives. The problem with their study is that the authors treat Section 187[39] as creating new legislation whereas it is, in fact, a consolidation or masterpiece of a previous judicial decision.
The third category is made up of civil society concerns – such as the PUCL open letter[40] and CJP analysis[41], which naturally raise the question about the improper utilization of the extended window, and urge amendment at the same time. Since the main focus is on advocating, these inputs could be considered less doctrinal.
There is one fundamental thing that all three categories have in common: they do not identify the constitutional flaw in Section 187[42] that stems from V. Senthil Balaji[43]; they do not discuss the failure of the Court to perform an Article 21[44] proportionality analysis before overruling Kulkarni[45]; nor do they think about the problem of self-correction from which the future constitutional review can benefit. This article aims to address this issue.
ANALYSIS
- The Kulkarni Safeguard and Its Constitutional Foundation
Section 167(2)[46] of the Code of Criminal Procedure, 1973 made a provision that only 15 days can be the maximum period for police custody and it should be taken only within the 15 days of arrest. If the 15-day period has passed, the only option left is judicial custody, i.e. custody under court supervision. The Law Commission of India through its 41st Report[47] mentioned that “detention powers should be limited to avoid free use”, which expresses a constitutional skepticism towards prolonged police custody that stems from police custody has been abused since colonial times.
CBI v. Anupam J. Kulkarni[48] summarised this position. The Supreme Court distinctly stated: “Section 167(2)[49] states that the police custody should be for a 15-day period and is absolute… No police custody can be allowed after 15 days from the arrest date.” The Court did not consider this a simple procedural matter but a constitutional line that cannot be crossed since police custody is prone to violence, torture and even death than judicial one. State of Rajasthan v. Teja Ram[50] and Khatri v. State of Bihar[51], while strengthening this principle, considered the 15 days maximum period as sacred. D.K. Basu v. State of West Bengal[52], based on this, set up a system of human rights protections like arrest memos, medical examination every 48 hours, and provision of legal aid all are based on police custody being tightly limited in time. The constitutional rationale was quite clear and consistent: well, short and front-loaded police custody is causing less harm; judicial custody is constitutionally safer. Kulkarni[53] held this to be a hard-and-fast rule for about thirty years.
B. V. Senthil Balaji: A Judgment Without Constitutional Justification
V. Senthil Balaji v. The State Represented by Deputy Director[54] resulted from the arrest of a former Tamil Nadu Minister by the Enforcement Directorate under the Prevention of Money Laundering Act. The only issue before the Court was if one can grant the police custody after the accused has been remanded to judicial custody in other words, after the initial 15-day period. The Court responded positively, overruled Kulkarni[55], and held that the 15-day police custody total could be spread over the whole period of investigation (60 or 90 days). At a glance, the textual interpretation the Court championed looked pretty reasonable. Actually, the issue was not with what the Court decided it was with what the Court failed to do before making that decision. The Court’s ruling is constitutionally flawed in at least four respects:
Firstly, the Court did not conduct any Article 21[56] proportionality analysis. The landmark case of K.S. Puttaswamy v. Union of India[57] laid down that any limitation on a person’s liberty must be tested against four criteria: legitimate aim, rational connection, necessity, and strict sense proportionality. The change of a thirty-year detention safeguard that has an impact on the liberty of accused persons every year at least calls for, an inquiry as to whether extending custody was necessary and proportional to the aim of the investigation. One will not find such a probe in the Senthil Balaji[58] dictum.
Secondly, the Court ignored India’s record of custodial violence. A total of 669 custodial deaths in police custody were recorded in India from 2017 to 2022. And, the NHRC intervened with monetary relief recommendations in 201 cases adding up to 5.8 crore[59]. Giving a judgment that increases the time limit for police custody without referring to this information is not only a gap in analysis given that it is Article 21[60] that is at stake, it is also a breach of constitutional responsibility.
Thirdly, the Court viewed the issue of custody length through the lens of convenience for the investigation rather than fundamental rights. The whole rationale given in Senthil Balaji [61]is centered on the requirements of the investigating agency the hardship of conducting interrogations continuously for a 15-day period. Such characterization reverses the constitutional rationale behind Section 167[62] CrPC which intended protection of the accused against the State, not facilitation of optimized investigations by the State.
Fourthly, the Court did not realize the heavy constitutional implications of overturning Kulkarni[63]. Stare decisis evokes that overruling a precedent with a protective function for three decades must be backed by proof that the earlier decision was constitutionally erroneous not simply that it was inconvenient for newer investigations. Senthil Balaji [64]did away with Kulkarni[65] without throwing light on the matter, thereby converting a constitutional issue into a mere matter of statutory interpretation.
C. Section 187 BNSS: The Statutory Form of a Judicial Error
BNSS’s Statement of Objects and Reasons does not explain the constitutional basis of the play in Section 187[66] custody provision. It makes no reference to the Law Commission Report’s[67] recommendations, investigative needs study, and does not cite any constitutional grounds for allowing police custody beyond what Section 167[68] CrPC permitted. Legislative records show that Section 187(2)[69] is nothing but a copy of what the Senthil Balaji has given room to: 15 days of police custody in parts, within an initial 40 or 60-day window of the total remand period. Critically, the Standing Committee on Home Affairs[70], in its Report on the BNSS Bill 2023 made a fresh proposal for a suitable amendment to the custody provision interpretation so the meaning will become clearer and to make the rule for custody to be taken into the first 15 days, with the second 15 days only as an exception. But this recommendation was not followed and the Parliament knowingly passed Section 187[71] without the protection that the Committee of their own had recommended – in effect duplicating the Senthil Balaji case[72] but leaving out the judicial caveats that the case itself suggested.
And, Section 187[73] went even further than Senthil Balaji [74]case in two respects. Firstly, Section 187(5) [75]provided a new clause which calls for a mandatory institutional detention in a police station, prison, or a government-declared facility, etc. strongly eliminating house arrest as an option, which is contrary to the Supreme Court’s very progressive judgement in Gautam Navlakha v. NIA[76], where the Court had allowed house arrest as a more humane alternative under Section 167[77] CrPC. Secondly, Section 187(2)[78] made bail status one of the factors for authorising custody-it is now possible to allow police custody even if there is no fresh investigative reason, as long as the accused is out on bail and bail has been revoked. None of these two new features can be found in Senthil Balaji[79] case. The Parliament used the open judicial window to go beyond the Court in its decision.
As a result, the statutory provision mirrors the constitutional defect of the judgment that it blew up and even further. The law made on a foundation that was judicially and constitutionally weak, will be inherited with that weakness. In the same way that Senthil Balaji [80]did not pass Puttaswamy [81]proportionality test, Section 187[82] will fail it as well, for the very same reason, and on top of that, Parliament has made some additions going beyond what the Court has allowed.
D. The Self-Correction Problem and the Path Forward
There is no doubt that the Supreme Court will have to deal with a paradox when Section 187[83] BNSS is challenged constitutionally – and it is the litigation of civil liberties that actively leading to this unavoidable – the Supreme Court will face a paradox. It cannot set aside Section 187[84] on the Article 21[85] basis unless it recognises that the V. Senthil Balaji [86] case was unconstitutional. But if it does, it will mean the Court realises that it was the author of the problem which it is now being asked to fix. Courts do so only rarely and reluctantly. The pressure on them to maintain self-consistency from the institution is very strong.
Two alternatives are there. First, to distinguish Senthil Balaji [87] case on its facts – to restrict it only for the PMLA cases with the Enforcement Directorate’s specialised investigative needs being used as an argument for the justification of the different custody rules – and to decide that Section 187[88] BNSS is beyond what Senthil Balaji[89] allowed for the general criminal cases. This keeps the 2023 judgment intact but reduces its scope. The second way, and the one that is constitutionally more truthful, is to send Senthil Balaji[90] case to a larger bench for a review under the Puttaswamy[91] proportionality principle that the 2023 panel did not consider. Prem Prakash v. Union of India [92], which re-recognized that bail is the rule and imprisonment the exception as an element of Article 21[93], supports this.
SUGGESTIONS
From this analysis three clear directions emerge: Firstly, the Supreme Court must send V. Senthil Balaji [94]to a Constitution Bench to reopen the question of Article 21[95] proportionality in the way that the four-fold Puttaswamy[96] test is applied to extended police custody. Obtaining the Section 187[97] review would be impossible without this constitutional requirement of the first step. Secondly, the legislature should change Section 187(2)[98] BNSS to a point where the investigating officer has to file a written request for any police custody that extends beyond the first 15 days of remand.
The request should detail: the reason for not seeking custody earlier; the step in the investigation that More exactly needs police physical custody at the moment; and why giving judicial custody will not be enough. The magistrate then has to give specific reasons not just sign an order as to why such a request is granted or denied. This way, effective magisterial control that Section 187[99] is presently lacking is restored. Thirdly, the elimination of house arrest in the proviso to Section 187(5)[100] must be undone.
Explicit restoration of the judicial authority to order house arrest combined with electronic monitoring of those who are neither flight risk nor charged with violent crimes needs to be done to follow the principle of Gautam Navlakha v. NIA[101] case and also to remove the unconstitutional stiffs that Section 187(5)[102] is currently exposing.
CONCLUSION
This article has shown that Section 187[103] BNSS does not represent an isolated case of Parliament going beyond its legislative powers, but rather the formal legislative expression of a judicial mistake that existed before the statute. V. Senthil Balaji [104]broke down the Kulkarni[105] plaintiff’s right safeguard without the Article 21[106] proportionality analysis that breakdown necessitated. Parliament not only formalized dismantling but also added further changes. Because of this, custody regime is a total failure against Puttaswamy[107] proportionality test, turning back Gautam Navlakha[108], human alternative, and increasing the risk of accused persons getting custodial violence – a risk that India’s own data on 4,484 deaths during the period from 2020 to 2022 hardly makes one dismiss it as a mere possibility.
The problem of self-correction that the Supreme Court faces here is genuine. Yet, it is not impossible to overcome. The Court that indicated in Prem Prakash [109]the mantra that jail is a derogation and bail the general principle has the legal means at its disposal to rectify the error of a two-judge bench in 2023. But what it needs is the institutional willingness to give primacy to the fundamental rights of accused persons over the consistency of its own precedent.
Such a court-created constitutional crisis can only be resolved by the court itself. The level of custodial deaths since August 2023 has been the yardstick showing how much that resolution has been postponed.
Priyamvada B.S
Symbiosis Law School, Pune
[1] The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 187, India Code (2023).
[2] The Code of Criminal Procedure, No. 2 of 1974, § 167, India Code (1974).
[3] The Constitution of India, art. 21.
[4] Ibid
[5] V. Senthil Balaji v. State, Deputy Dir., Directorate of Enforcement, 2023 SCC OnLine SC 934 (India)
[6] CBI v. Anupam J. Kulkarni, (1992) 3 S.C.C. 141, 148 (India)
[7] Id at 3
[8] Id at 1
[9] Ministry of Home Affairs, Statement on Custodial Deaths, Lok Sabha (July 26, 2022), https://www.mha.gov.in/MHA1/Par2017/pdfs/par2022-pdfs/LS26072022/1459.pdf.
[10] Id at 5
“[15] Tauheed Alam & Afkar Ahmad, Comparative Analysis of Remand Provisions Under the CrPC and the BNSS: Legal Implications and Challenges, 1 J.L. & ARTIFICIAL INTELLIGENCE 1, 1 (2025)”
“[19] People’s Union for Civil Liberties, Open Letter to the Home Minister: Amend Section 187(3) BNSS in Line with Clarification on Police Custody, PUCL (July 2024), https://pucl.org/manage-writings/open-letter-to-home-minister-amend-sec-1873-bnss-in-line-with-clarification-on-police-custody”.
“[20] Citizens for Justice and Peace, Police Custody Under CrPC & BNSS: A Paradigm Shift in Balancing Liberty and Investigation, CJP (Jan. 2025), https://cjp.org.in/police-custody-under-crpc-bnss-a-paradigm-shift-in-balancing-liberty-and-investigation.”
[24] Id at 3
[25] Id at 3
[26] The Constitution of India, art. 22.
[27] Id at 2
[28] Id at 1
[29] Id at 5
[30] Standing Comm. on Home Affairs, Report on the Bharatiya Nagarik Suraksha Sanhita Bill, 2023, Lok Sabha Secretariat (2023).
[31] Id at 9
[32] Id at 1
[33] Yeshwant Naik, The Bharatiya Nyaya Sanhita (BNS): A Critical Examination of India’s New Penal Code, SSRN (July 3, 2024), https://ssrn.com/abstract=4884622.
[34] Vijay Kumar Singh & Paramjit S. Jaswal, A Review of Criminal Law Reforms in India: Shaping the Future of Criminal Law in India, SSRN (July 24, 2025), https://ssrn.com/abstract=5361043.
[35] Id at 1
[36] Id at 15
[37] Id at 2
[38] Id at 1
[39] Ibid
[40] Id at 19
[41] Id at 20
[42] Id at 1
[43] Id at 5
[44] Id at 3
[45] Id at 6
[46] The Code of Criminal Procedure, No. 2 of 1974, § 167(2), India Code (1974).
[47] Law Comm’n of India, Forty-First Report on the Code of Criminal Procedure, 1898, 123 (1969).
[48] Id at 6
[49] Id at 46
[50] State of Rajasthan v. Teja Ram, (1999) 3 S.C.C. 595, 601 (India).
[51] Khatri v. State of Bihar, (1981) 1 S.C.C. 627, 630 (India).
[52] D.K. Basu v. State of West Bengal, (1997) 1 S.C.C. 416, 435 (India).
[53] Id at 6
[54] Id at 5
[55] Id at 6
[56] Id at 3
[57] K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1, 619 (India).
[58] Id at 5
[59] Ministry of Home Affairs, Lok Sabha Unstarred Question No. 3019: Custodial Deaths, Lok Sabha Secretariat (Mar. 22, 2022), https://www.mha.gov.in/MHA1/Par2017/pdfs/par2022-pdfs/LS-22032022/3019.pdf.
[60] Id at 3
[61] Id at 5
[62] Id at 2
[63] Id at 6
[64] Id at 5
[65] Id at 6
[66] Id at 1
[67] Id at 47
[68] Id at 2
[69] The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 187(2), India Code (2023).
[70] Id at 30
[71] Id at 1
[72] Id at 5
[73] Id at 1
[74] Id at 5
[75] The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 187(5), India Code (2023).
[76] Gautam Navlakha v. Nat’l Investigation Agency, (2021) 5 S.C.C. 1, 28–32 (India).
[77] Id at 2
[78] Id at 69
[79] Id at 5
[80] Id at 5
[81] Id at 57
[82] Id at 1
[83] Id at 1
[84] Id at 1
[85] Id at 3
[86] Id at 5
[87] Id at 5
[88] Id at 1
[89] Id at 5
[90] Id at 5
[91] Id at 57
[92] Prem Prakash v. Union of India, 2024 SCC OnLine SC 2270 (India).
[93] Id at 3
[94] Id at 5
[95] Id at 3
[96] Id at 57
[97] Id at 1
[98] Id at 69
[99] Id at 1
[100] Id at 75