Imagine two people picked up by the police on the same evening. One is accused of a minor cheque-bounce-adjacent offence carrying up to five years' imprisonment; the other is accused of a serious violent crime. Both are, in theory, protected by the same Constitution. But a growing body of Supreme Court commentary — most recently a discussion titled "Did the Supreme Court create two classes of arrestees?" — asks whether the law, and the Court's own reading of it, actually treats them identically before the handcuffs go on.
This is not an abstract academic quarrel. Whether a person is arrested straightaway or merely issued a notice to appear, whether reasons for arrest must be recorded in writing, and whether a magistrate can question the necessity of arrest at all — these determine whether someone spends a night, or weeks, in custody before ever being convicted of anything.
What happened
Commentary following a recent Supreme Court decision has flagged that the Court's reasoning appears to draw a line between categories of arrestees — broadly, between those accused of offences attracting shorter sentences (where arrest is meant to be the exception, not the rule) and those accused of more serious offences (where police retain wider discretion to arrest without first considering alternatives). Critics have read this as effectively creating two tiers of protection under what is supposed to be a uniform statutory safeguard against unnecessary arrest. The debate sits within the wider churn caused by India's shift from the Code of Criminal Procedure, 1973 (CrPC) to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force in 2024 and substantially re-enacts — while renumbering — the arrest provisions that were the subject of earlier landmark guidance on arrest discipline.
The law behind it
The starting point is Article 21 of the Constitution, which guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. Arrest is a deprivation of liberty, so any arrest must strictly follow a lawful procedure. Article 22 supplements this by guaranteeing every arrested person the right to be informed, as soon as possible, of the grounds of arrest, and the right to consult and be defended by a legal practitioner of choice.
The statutory machinery that operationalises these guarantees is now found in the BNSS. BNSS Section 35 lays down when police may arrest without a warrant. Crucially, it does not treat arrest as automatic even for cognizable offences: where an offence is punishable with a comparatively short term of imprisonment, the police officer is expected to first consider whether arrest is genuinely necessary — to prevent further offences, to ensure proper investigation, to prevent tampering with evidence, or to ensure the accused's presence in court — and to record reasons if arrest is nonetheless made. Where these conditions are not shown, the law instead permits issuing a notice of appearance rather than arresting the person outright. This structure descends from earlier CrPC provisions that were introduced specifically to curb routine, mechanical arrests in less serious matters, following repeated judicial criticism of arrest being used as a tool of harassment rather than a genuine investigative necessity.
BNSS Section 36 then prescribes the procedure and duties of the officer actually making the arrest, while BNSS Section 38 guarantees the arrested person's right to meet an advocate of choice during interrogation, though not throughout it. BNSS Section 47 is the direct statutory echo of Article 22(1): it requires that the person arrested be informed of the grounds of arrest and, importantly, of the right to be released on bail where the offence is bailable. Read together, these provisions form a chain: Article 21 sets the constitutional floor, Article 22 fixes specific procedural rights, and Sections 35, 36, 38 and 47 of the BNSS give those rights day-to-day, enforceable content for a person standing on a roadside being informed that they are under arrest.
Bail provisions complete the picture. BNSS Section 478 governs when bail must or may be taken generally, and BNSS Section 480 deals specifically with bail in non-bailable offences, again distinguishing by the severity of the alleged offence and the punishment it attracts. The entire scheme is built on classification by offence-severity — which is precisely why the "two classes of arrestees" debate matters: classification is lawful and indeed intended by the statute, but it must not collapse into arbitrary or unequal treatment of similarly placed persons, which would offend Article 14's guarantee of equality before the law. The legal question, in other words, is not whether the law distinguishes between categories of accused — it plainly does, and is meant to — but whether a court's interpretation of that distinction preserves the underlying principle that arrest must never be routine, regardless of which category an accused falls into.
How we got here
Before the current framework, arrest practice in India had for decades tilted heavily in favour of the police, with arrest often treated as the automatic first step upon registration of a cognizable offence, irrespective of its gravity. This pattern drew sustained judicial censure over the years, prompting Parliament to insert requirements — later carried into the BNSS — obliging police to justify arrest as necessary rather than merely permissible, especially for offences punishable with lesser terms of imprisonment. The 2023 codification exercise, which replaced the Indian Penal Code, 1860 with the Bharatiya Nyaya Sanhita, 2023 (BNS) and the CrPC with the BNSS, was projected as a modernisation of criminal procedure, but it substantially retained the pre-existing arrest safeguards rather than rewriting them from scratch. The current controversy arises because judicial interpretation of these retained safeguards is still evolving under the new numbering, and recent rulings are being read by commentators as recalibrating how strictly the "necessity of arrest" test applies across different offence categories — with some arguing this effectively hardens a two-tier system that Parliament did not clearly intend.
What it means in practice
For an ordinary citizen, this distinction is not academic. Someone accused of a low-severity offence should, on paper, be spared arrest unless the police can show a specific, recorded reason why arrest — rather than a notice to appear — is necessary. If courts read this safeguard narrowly, or apply it only to a shrinking category of offences, more people accused of comparatively minor matters may find themselves arrested as a matter of routine, with the burden shifting to them to seek bail after the fact rather than being spared arrest at the threshold. Conversely, if the safeguard is read broadly, police discretion narrows and magistrates gain a firmer basis to question arrests that skip the necessity analysis. For UPSC and judiciary aspirants, this is a live illustration of how a single statutory word — "necessary" — interacts with constitutional guarantees under Articles 21 and 22, and how classification by offence-severity must still satisfy the reasonable-classification test under Article 14 to avoid becoming arbitrary discrimination between similarly circumstanced accused persons.
What to watch
The central question — whether the Supreme Court's reading of BNSS Section 35 in this case entrenches a durable, offence-based two-tier arrest regime, or whether it is a fact-specific application that will be clarified in later benches — remains open, and readers should treat any firm claim about the judgment's final scope with caution pending the full reasoned text and any review or clarificatory proceedings. It is also worth watching whether Parliament or the police establishment issues fresh guidelines to standardise how the "necessity of arrest" test is recorded and audited, and whether High Courts across India converge on a uniform approach to Sections 35, 36 and 47 of the BNSS, given that inconsistent application across states would itself raise an Article 14 concern distinct from the one currently being debated.