Section 62

Arrest takes away a person's liberty, which is one of the most serious things the state can do to an individual. Indian law has long insisted that such power cannot be exercised on whim — it must trace back to a clear legal provision. This principle echoes Article 21 of the Constitution ('no person shall be deprived of his life or personal liberty except according to procedure established by law') and reflects post-independence concern over colonial-era arbitrary detentions. This section makes that constitutional guarantee explicit within the new criminal procedure code (BNSS, 2023), which replaced the Code of Criminal Procedure, 1973.

Although this precise section is new to the BNSS (2023), Indian courts had already built a strong body of law insisting that arrest powers be used sparingly and lawfully. In Joginder Kumar v. State of U.P. (1994), the Supreme Court held that having the power to arrest is different from the justification for exercising it, and arrest should not be automatic or routine. In D.K. Basu v. State of West Bengal (1997), the Court laid down detailed safeguards to prevent arbitrary arrest and custodial abuse, many of which were later written into the CrPC and now carry forward into the BNSS. Courts are likely to read Section 62 as codifying this constitutional and judicial consensus that arrest must always have a clear legal basis.

• Myth: Police can arrest anyone they suspect of wrongdoing, even without a specific legal basis.
  Fact: Section 62 makes clear that arrest is only lawful if some specific provision — in the BNSS or another law — actually authorizes it in that situation.
• Myth: This section itself creates new arrest powers.
  Fact: It does not grant any arrest power; it only requires that arrests be grounded in powers that already exist elsewhere in law.