Section 42 BNSS 2023: Protection of Members of Armed Forces from Arrest
Section 42 of the Bharatiya Nagarik Suraksha Sanhita, 2023 creates a specific protection against arrest for members of the Armed Forces of the Union in relation to acts done, or purported to be done, in the discharge of official duties, unless the required governmental consent has first been obtained.
What is Section 42 BNSS?
Section 42 restricts arrest in cases involving members of the Armed Forces of the Union where the alleged act was done, or purported to be done, in the discharge of official duties. The section begins with a non-obstante clause overriding section 35 and sections 39 to 41 for this limited purpose.
Key legal terms under Section 42
Armed Forces of the Union: The expression refers to members of the Armed Forces under the authority of the Union of India.
Official duties: Duties performed in an official capacity. Section 42 also covers an act "purported to be done" in discharge of official duties, so the protection is framed around the claimed official character of the act.
Consent of the Central Government: For the class of persons covered by subsection (1), arrest cannot be made for the protected category of acts unless Central Government consent has been obtained.
Non-obstante clause: The opening words "Notwithstanding anything contained in..." give Section 42 overriding effect over the specified arrest provisions to the extent of inconsistency.
Force charged with maintenance of public order: Subsection (2) enables a State Government, by notification, to extend the protection to a specified class or category of members of such a force.
Text of Section 42 - Protection of members of Armed Forces from arrest
42. (1) Notwithstanding anything contained in section 35 and sections 39 to 41 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.
(2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
Protection under Section 42(1)
Subsection (1) protects a member of the Armed Forces of the Union from arrest for an act done or purported to be done in the discharge of official duties unless consent of the Central Government is obtained.
The protection is specific to arrest. It does not, by its text, declare that no investigation, inquiry, prosecution, or other legal proceeding can ever occur. Other statutory provisions governing sanction, prosecution, or jurisdiction may apply separately depending on the facts.
Which arrest provisions are overridden?
Section 42 expressly operates notwithstanding Section 35 BNSS and Sections 39 to 41. Accordingly, where Section 42 applies, the arrest powers contained in those provisions are subject to the protection and consent requirement created by Section 42.
State Government power under Section 42(2)
Subsection (2) permits the State Government to issue a notification extending the protection in subsection (1) to a specified class or category of members of a Force charged with the maintenance of public order.
Once such a notification applies, the protection operates as if the reference to the Central Government in subsection (1) were a reference to the State Government.
Why a State notification matters
The protection under subsection (2) is not automatic for every public-order force. Its application depends on a notification by the concerned State Government identifying the class or category covered. Therefore, any case involving subsection (2) should be checked against the current notification applicable in that State.
Relationship with Sections 41 and 43 BNSS
Section 41 BNSS deals with arrest by a Magistrate, while Section 43 BNSS prescribes how an arrest is to be made. Section 42 intervenes before arrest where its statutory protection applies and the required governmental consent has not been obtained.
Section 42 BNSS at a glance
- Protects members of the Armed Forces of the Union from arrest in specified official-duty situations.
- Applies to acts done or purported to be done in discharge of official duties.
- Central Government consent is required before arrest under subsection (1).
- Overrides Section 35 and Sections 39 to 41 to the extent stated in the provision.
- A State Government may extend the same protection by notification to specified members of a force charged with maintenance of public order.
- Where subsection (2) applies, the required consent is that of the State Government.
Official legal resources
This page provides general legal information. In a particular matter, the applicability of Section 42 may depend on the nature of the force, the connection between the alleged act and official duties, the existence and scope of any State notification, and other applicable statutory or constitutional provisions.