Recent Supreme Court commentary has questioned whether the Court's reading of arrest law creates two classes of arrestees — those accused of offences with shorter sentences, where arrest is meant to be exceptional, and those accused of serious offences, where police retain wider discretion to arrest without considering alternatives. The debate arises amid the transition from the CrPC to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which re-enacted the CrPC's arrest provisions with renumbering.
Constitutionally, Article 21 requires arrest to follow lawful procedure, while Article 22 guarantees grounds of arrest and access to counsel. BNSS Sections 35, 36, 38 and 47 operationalise these rights, with Section 35 requiring police to justify arrest as necessary in offences carrying lesser punishment. Since the scheme classifies by offence-severity, the concern is whether such classification, while statutorily intended, remains consistent with Article 14's equality guarantee rather than becoming arbitrary.
For exams, remember: arrest safeguards flow from Article 21 (procedure) and Article 22 (specific rights), now codified in BNSS Sections 35 (arrest without warrant), 36, 38, 47, 478 and 480. The key issue is not whether offence-based classification is permissible — it is — but whether judicial interpretation preserves the principle that arrest must never be routine.