BNS Implementation issues and Challenges

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BNS Implementation issues and Challenges: Analyze practical issues arising from the new criminal code’s implementation, particularly regarding arrest guidelines and bail provisions.

Written by Savya Sharma

Table of Contents

The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the colonial-era Indian Penal Code on July 1, 2024, promised a paradigm shift in India’s criminal justice framework. However, six months into implementation, the new code has revealed significant practical challenges, particularly concerning arrest guidelines and bail provisions. While the legislation introduced modern concepts like community service and digital evidence integration, its ground-level execution has been marred by training deficits, infrastructure gaps, and interpretational ambiguities that directly impact fundamental rights under Article 21.​

Arrest Guidelines: Theoretical Safeguards vs. Practical Reality

Section 35 BNSS: Consolidation and Confusion

The merger of Sections 41 and 41A of the Code of Criminal Procedure (CrPC) into Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) was intended to streamline arrest procedures while introducing safeguards against arbitrary detention. Section 35(3) explicitly states that compliance with a police notice shall prevent arrest unless the officer records written reasons justifying its necessity. However, field reports indicate widespread non-compliance with documentation requirements. Police officers often fail to prepare arrest memos attested by witnesses as mandated, undermining the provision’s protective intent.​

A critical implementation failure emerges in the context of grounds of arrest. The Supreme Court has repeatedly held that written grounds must be furnished immediately, and non-compliance renders arrests illegal. Yet, police stations lack standardized formats and digital systems to ensure compliance, particularly in rural areas where infrastructure remains rudimentary. The Delhi High Court has observed that investigating agencies frequently file charge sheets without addressing procedural irregularities, creating a culture of impunity.​

Handcuff Provisions: Contradicting Judicial Precedents

Section 43(3) of BNSS permits handcuffs for habitual offenders or those accused of serious crimes like rape and organized crime. This directly contravenes Supreme Court judgments in Prem Shankar Shukla v. Delhi Administration and National Human Rights Commission guidelines, which permit restraints only in exceptional circumstances. The provision’s vague language has led to indiscriminate application, with reports of handcuffing in minor offences, reflecting either inadequate training or deliberate disregard for constitutional norms.​

Police Custody: The “Part or Whole” Dilemma

Perhaps the most contentious change involves Section 187(3) of BNSS, which allows 15 days of police custody “in the whole or in part” over 40 or 60 days, depending on offence severity. This marks a radical departure from the CrPC’s interpretation in CBI v. Kulkarni, where the Supreme Court limited police custody strictly to the first 15 days post-arrest.​

The practical implications are severe. Police can now request custody in fragments—four days initially, then another four days after the accused is released on bail—effectively extending investigative control over 60 days. This creates a harassment tool, as accused persons must repeatedly appear for custodial interrogation, disrupting employment and personal life. The Parliamentary Standing Committee on Home Affairs recommended clarifying that custody beyond 15 days should be an exception, but these suggestions were ignored in the final legislation.​

Magistrates face practical difficulties in scrutinizing repeated custody requests. Many hesitate to grant bail early, fearing the cumbersome process of canceling bail for subsequent custody periods. This judicial hesitation directly undermines the “bail is the rule” principle, converting custody into a default rather than an exception.​

Bail Provisions: Liberty on Paper vs. Ground Reality

Default Bail: Procedural Ambiguities

Section 187(3)(ii) of BNSS retains the default bail provision, making it “indefeasible” upon failure to file a charge sheet within 60 or 90 days. However, practical implementation reveals systemic resistance. Courts often demand “complete” charge sheets, allowing agencies to circumvent the deadline by filing incomplete documents and seeking extensions.​

The distinction between IPC and BNS cases has created jurisdictional confusion. In Prabir Purkayastha v. State, the Supreme Court ruled that illegal arrests cannot be validated by subsequent charge sheet filing, yet lower courts continue to admit defective charge sheets without examining procedural compliance. This is particularly problematic in transitional cases where FIRs were registered under IPC but arrests occurred under BNS provisions, raising questions about the validity of entire proceedings.​

Anticipatory Bail: Retrospective Application Debates

Section 482 of BNSS removed the bar on anticipatory bail for offences punishable with life imprisonment, a significant liberalization from Section 438(6) CrPC. The Allahabad High Court in Sudhir Kumar Chaurasia v. State of U.P. held that BNSS applies retrospectively to pending cases, allowing anticipatory bail even for serious offences if the legal bar was removed after BNS’s enforcement.​

However, this interpretation is not uniform. Some High Courts have referred constitutional questions about retrospective application to larger benches, creating jurisprudential uncertainty. The practical consequence is forum shopping, with accused persons filing anticipatory bail applications in favorable jurisdictions, undermining legal consistency.​

Socio-Economic Barriers and Judicial Discretion

Despite statutory reforms, the BNSS fails to address structural bail barriers. The code retains heavy reliance on sureties and cash bonds, disproportionately affecting the poor. Unlike jurisdictions with presumptive bail for minor offences, BNSS maintains judicial discretion as central to non-bailable cases, leading to inconsistent outcomes across courts.​

The Supreme Court’s observation that “bail is the rule, jail is the exception” remains largely theoretical. Undertrial populations have not significantly decreased because magistrates continue to follow conservative practices, prioritizing offence severity over individual liberty. The lack of specific guidelines for bail in digital offences and organized crime cases further complicates matters, as judges lack benchmarks to assess flight risk or evidence tampering potential.​

Systemic and Infrastructure Challenges

Training Deficits and Capacity Gaps

The government claims to have trained over 45,000 Delhi Police officers and conducted 274 training courses nationwide. However, ground reality suggests superficial training. Maharashtra Police Academy modules cover 46 BNS topics, 34 BNSS topics, and 14 BSA topics, but officers report difficulty in understanding nuanced changes, particularly regarding arrest documentation and custody calculations.​

The problem is acute at lower levels. Many police stations function as employment centers for under-educated rural youth, making cyber literacy training politically sensitive. This results in manual investigations despite digital evidence mandates, as officers lack skills to handle electronic evidence under the Bharatiya Sakshya Adhiniyam.​

Digital Infrastructure Inadequacy

The BNSS mandates e-FIRs, video-recorded searches, and real-time evidence upload. However, rural and semi-urban areas lack adequate digital infrastructure, forensic laboratories, and trained personnel. States face dual challenges of limited economic resources and technical expertise, leading to disjointed digitization.​

Even where infrastructure exists, procedural delays persist. Courts require physical document submission despite digital mandates, creating parallel systems that increase workload. The overburdened judiciary, already handling backlogs, struggles to adapt to new timelines for bail applications and charge sheet scrutiny.​

Citizens remain largely unaware of their rights under the new laws. Government awareness campaigns have been inadequate, particularly regarding Section 35(3)’s protection against arrest after notice compliance. Legal aid lawyers, themselves unfamiliar with BNS provisions, cannot effectively assist accused persons in asserting their rights.​

Judicial Interpretation and Jurisprudential Gaps

Conflicting High Court Precedents

The Supreme Court’s failure to provide comprehensive guidelines has led to conflicting interpretations. While the Allahabad High Court liberally grants anticipatory bail under BNSS, other High Courts maintain restrictive approaches. Similarly, on police custody, some magistrates follow the Kulkarni principle strictly, while others adopt the Senthil Balaji interpretation, creating uncertainty.​

The Supreme Court’s recent judgment in Prem Prakash v. Union of India (2024) emphasized that deprivation of liberty must be an exception, but this has not translated into consistent bail jurisprudence. The higher judiciary’s role in providing clarity remains unfulfilled, leaving lower courts to navigate complex statutory language without guidance.​

Need for Standard Operating Procedures

The lack of Standard Operating Procedures (SOPs) from the Ministry of Home Affairs exacerbates implementation chaos. While the Bureau of Police Research and Development has issued handbooks, these are not binding. Clear SOPs specifying offences eligible for partial custody, documentation standards for arrest memos, and bail consideration factors are urgently needed.​

Conclusion and Way Forward

The BNS’s implementation challenges reveal a fundamental gap between legislative intent and ground reality. While the code modernizes substantive law, its procedural framework—particularly regarding arrest and bail—requires immediate judicial and executive intervention. The Supreme Court must proactively clarify key provisions through constitution bench decisions, especially on police custody limits and retrospective bail applications.​

The government must invest in comprehensive, ongoing training that goes beyond superficial modules, focusing on constitutional rights and digital evidence handling. Simultaneously, forensic infrastructure requires urgent expansion, with dedicated budgets for rural laboratories and technical personnel.​

Most critically, the judiciary must internalize that procedural reforms are meaningless without attitudinal shifts. Magistrates should rigorously scrutinize custody requests and grant bail liberally, treating liberty as the primary constitutional obligation rather than a concession. Only through coordinated efforts across all criminal justice pillars can the BNS fulfill its promise of a rights-based, efficient legal framework.​

The experience of the past six months demonstrates that criminal law reform cannot be achieved merely by legislative replacement. It requires sustained commitment to capacity building, infrastructure development, and most importantly, a cultural shift within law enforcement and judicial institutions that prioritizes constitutional liberties over investigative convenience.​

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