Judicial Pushback: How Constitutional Courts are Taming the BNSS and BNS in 2026

The Post-Transition Reality of India’s New Criminal Codes

When the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Nyaya Sanhita (BNS) came into force, the defense bar braced for impact. The fear was palpable: expanded police remand periods, ambiguous definitions of new offences, and a perceived dilution of procedural safeguards. However, the jurisprudence emerging in early 2026 tells a different story. Constitutional courts are actively stepping in to temper the new codes, ensuring that the legacy of civil liberties and due process is not lost in translation.

For practicing advocates and trial lawyers, the latest wave of Supreme Court and High Court rulings provides crucial ammunition. The message from the bench is clear: the new codes are not a blank cheque for mechanical arrests or weaponized prosecutions.

The Ghost of Arnesh Kumar Lives On: Section 35 BNSS

One of the most significant anxieties surrounding the BNSS was whether the celebrated Arnesh Kumar guidelines—which curbed arbitrary arrests for offences punishable by up to seven years—would survive the repeal of Section 41A of the CrPC. The Supreme Court has now put those doubts to rest.

Interpreting the new provisions, the Apex Court has categorically held that for offences punishable with up to seven years’ imprisonment, the issuance of a notice of appearance under Section 35(3) BNSS is the absolute rule. Conversely, an actual arrest under Section 35(6) BNSS is the exception.

"The statutory mandate of notice before arrest cannot be bypassed on the mere whims of the investigating officer. Arrest remains a measure of last resort, not a tool for preliminary coercion."

Practice Note: Defense counsel must aggressively demand proof of compliance with Section 35(3). If the police effect an arrest under Section 35(6) without recording compelling, objective reasons, it is an immediate ground for illegal detention and bail. Do not let magistrates mechanically authorize remand without scrutinizing this compliance.

The WhatsApp Farce: Enforcing Section 48 BNSS

Section 48 of the BNSS mandates that the police must inform a designated family member or friend about an arrest. In a digital-first policing environment, Investigating Officers (IOs) have increasingly taken to sending a quick WhatsApp message to fulfill this obligation.

The Gauhati High Court has struck down this lazy compliance mechanism. The Court ruled that simply sending an arrest intimation via WhatsApp, without concrete proof of actual service and acknowledgement, does not satisfy the rigors of Section 48 BNSS. More importantly, the Court held that such non-compliance renders the arrest illegal and directly supports a bail application.

Practice Note: During the first remand hearing, trial lawyers must ask the IO for the "Blue Ticks" or equivalent proof of service. A mere screenshot of a sent message is no longer sufficient to prove statutory compliance. This is a highly effective, technical ground to secure early bail.

Remand Math and the 15-Day Rule: Sections 187 & 346(2) BNSS

The computation of police custody under the BNSS has been a major point of friction. Under Section 187 BNSS, police custody can be sought in tranches, unlike the strict initial 15-day block under the old CrPC.

The Delhi High Court recently clarified this computation, ruling that only actual custody counts toward the maximum period of police remand. Time spent by the accused on interim bail does not count as custody. Meanwhile, the Gujarat High Court addressed Section 346(2) BNSS, holding that while remand beyond the initial 15-day period is permissible, it is not an automatic right for the prosecution. The defense can challenge extended remand if the order is "patently illegal, without jurisdiction, or mechanical."

Practice Note: Maintain a strict day-to-day calendar of your client's actual time in the lock-up. The police cannot use interim bail periods to pause the clock and artificially extend the investigation window to extract confessions.

Quashing the "Mushrooming" FIRs under Section 69 BNS

Perhaps no substantive provision has generated as much controversy as Section 69 BNS, which criminalizes sexual intercourse induced by "deceitful means" or a false promise of marriage. While intended to codify judicial precedents surrounding consent, it has led to a flood of FIRs when consensual relationships turn sour.

On February 24, 2026, the Karnataka High Court granted release in a Section 69 BNS case, expressly noting the "mushrooming" of FIRs registered despite clear evidence of a consensual relationship. This echoes the Supreme Court’s broader transitional stance (bridging Section 376(2)(n) IPC and BNS), reminding police that a consensual relationship turning acrimonious does not retroactively vitiate consent.

Furthermore, the Supreme Court has reiterated its power to quash criminal proceedings where reliable and unimpeachable material disproves the allegations. Coupled with Section 173(3) BNSS, which the Apex Court noted is designed to prevent the mechanical registration of FIRs on vague or doubtful allegations, the judiciary is building a fortress against malicious prosecutions.

The Takeaway for the Defense Bar

The 2026 rulings reveal a judiciary that is acutely aware of the potential for state overreach under the BNS and BNSS. From requiring explicit court permission for further investigation after a final report (curbing endless supplementary charge sheets) to enforcing strict notice requirements before arrest, the courts are reading fundamental rights back into the new black letter law.

For Indian lawyers, the strategy is clear: do not assume the new codes have given the police unchecked power. Weaponize procedural non-compliance. Demand strict adherence to Section 35(3) notices and Section 48 intimations. The law may have a new name, but the constitutional safeguards remain the ultimate trump card.