Section 43(3) BNSS: What the law now provides
The Bharatiya Nagarik Suraksha Sanhita, 2023 has introduced an express statutory provision on handcuffing. Section 43(3) states that a police officer may, having regard to the nature and gravity of the offence, use handcuffs while making arrest or while producing the arrested person before the court in specified categories of cases.
However, the provision does not say that every person falling in these classes must automatically be handcuffed. The section uses the word “may,” and even that discretion must be exercised with regard to the nature and gravity of the offence. Thus, Section 43(3) is an enabling provision, not a blanket authorisation for routine or mechanical handcuffing.
Constitutional control over the BNSS power
Even after BNSS, handcuffing cannot be divorced from constitutional safeguards. Since arrest directly affects liberty and dignity, the police power under Section 43(3) must still satisfy the requirements of fairness, necessity, and non-arbitrariness under Articles 21 and 22.
In other words, BNSS gives statutory authority, but the Constitution governs the manner of its exercise. A person cannot be handcuffed merely for convenience, display of power, or routine practice; there must be a justifiable reason related to security, escape risk, violence, or similar necessity.
Vihaan Kumar v. State of Haryana: What the Supreme Court held
After understanding Section 43(3), the importance of Vihaan Kumar v. State of Haryana becomes clear. In that case, the Supreme Court was dealing primarily with the illegality of arrest due to failure to communicate the grounds of arrest, but it also took serious note of the treatment given to the appellant while he was hospitalized.
The Court recorded that the appellant had been taken to the hospital in handcuffs and was chained to the hospital bed. It described this as a violation of the appellant’s fundamental right under Article 21 and emphasized that the right to live with dignity is part of Article 21. The Court then directed the State of Haryana to issue guidelines or departmental instructions to ensure that such conduct is not repeated and that Article 22 safeguards are strictly followed.
Why Vihaan Kumar matters after BNSS
The significance of Vihaan Kumar is that it prevents Section 43(3) BNSS from being misunderstood as a licence for indiscriminate restraint. Even where the statute permits handcuffs, the Supreme Court has made it clear that degrading treatment, especially handcuffing an accused in hospital and chaining him to a bed, violates constitutional dignity.
A hospital is not an ordinary arrest setting. When a person is already under treatment and under official watch, chaining him to a bed is prima facie humiliating and excessive unless the State can show some compelling and immediate necessity. Thus, Vihaan Kumar reinforces that constitutional rights continue inside custody and inside hospitals.
The correct legal position
The correct legal position today is not that handcuffing is always illegal, and not that BNSS has made it freely permissible. The law is that Section 43(3) BNSS authorises handcuffs in certain cases, but the exercise of that power remains subject to constitutional scrutiny under Articles 21 and 22.
Therefore, routine handcuffing is still impermissible. More so, handcuffing an accused in a hospital and tying him to a hospital bed is unconstitutional unless supported by exceptional necessity that can withstand judicial scrutiny.
Suggested ending line
Vihaan Kumar is a reminder that while BNSS may expand statutory police power, it does not reduce the Constitution’s insistence on dignity, necessity, and fairness in the treatment of every accused person.
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