[This Article is authored by Vanshika Gupta, a 2nd year law student in National Law School of India University, Bangalore (NLSIU)]

Deconstructing the Judiciary’s Directory Interpretation and Its Impact on Women’s Custodial Protection under §43(5) of BNSS.

Introduction

India has witnessed grave human rights violations in the form of Custodial violence for a long time now. The National Human Rights Commission (NHRC) documented 4,400 custodial deaths between 2020 and 2022. However, these figures merely represent a fraction of the widespread brutality since these are only the fatalities. Women are particularly vulnerable to physical, sexual, and psychological abuse in custody. Legal safeguards to protect against these vulnerabilities exist, but persistent gaps in implementation and judicial interpretation hinder effective protection of individuals in custodial settings.

This article analyses the transition of §43(5) of the Bharatiya Nagarik Suraksha Sanhita (hereinafter “BNSS”) through judicial interpretation, with emphasis on the February 2025 Madras HC judgment in Deepa v. S. Vijaylakshmi, which represents a drastic shift from established jurisprudential consensus.

Judicial Interpretation of §43(5) BNSS

§43(5) of the BNSS constitutes a fundamental procedural safeguard specifically designed to prevent custodial violence against women through restrictions on arrest powers of the police. The provision’s interpretative framework has undergone judicial development since its inception into the CPC through Act 25 of 2005, which came into effect on June 23, 2006 after the recommendations of the 135th Law Commission Report on Women in Custody (1989).

The judgement in State v. Sunita provides significant understanding regarding the implementation of §43(5), establishing a tripartite framework of state responsibility. First, the investigating female officer bears primary responsibility for preparing written reports to the Judicial Magistrate, presenting complete material evidence demonstrating exceptional circumstances justifying arrest during night. Secondly, The Judicial Magistrate must examine the submitted materials before granting permission to arrest. Third, the Magistrate must issue specific written orders permitting arrests only after a satisfactory review of presented evidence. This framework creates systematic checkpoints preventing arbitrary nighttime arrests while maintaining judicial oversight of exceptional circumstances.

Along similar lines, the compliance with §43(5) BNSS has been uniformly held to be  mandatory across various HCs in cases involving arrest of women during night. In Aleksander Kurganov v. State of Maharashtra, the Bombay HC rejected the CBI’s nighttime arrest of a woman without written permission from the Judicial Magistrate, holding that §43(5) constitutes a mandatory provision that cannot be disregarded under any circumstances.

Similarly, the Guwahati High Court in Tanuja Roy v. State of Assam held that arrests conducted in violation of §43(5) are per se illegal. Most recently, in July 2025, the Bombay High Court in Smt. Sujata v. The State of Maharashtra reaffirmed this stance, emphasizing that the statutory use of the word “shall” in §43(5) creates a mandatory duty.

This consistent interpretation across jurisdictions represented a settled legal understanding of §43(5) until February 2025, when the Madras High Court held the provision to be directory rather than mandatory.

The Paradigmatic shift: Critical Analysis of Deepa v. S. Vijayalakshmi

In Deepa v. S. Vijayalakshmi, the petitioner was arrested on 12 January, 2019 at 8:00 PM in violation of §43(5) and allegedly suffered physical abuse, beatings, and was threatened with a knife during custody.

The central issue before the court was whether arrests made in breach of the §43(5) should be declared illegal. However, the Madras HC upheld the validity of the arrest by fundamentally altering the interpretation of §43(5) from mandatory to directory. There are three major caveats that emerge from the judicial approach adopted by the court.

Legislative Intent Fallacy

The Division Bench of the Madras HC relied upon the SC’s precedent in Sharif-ud-din v. Abdul Gani Lone to establish the distinction between mandatory and directory provisions. The court emphasised that mandatory rules require strict observance but directory provisions may be satisfied through substantial compliance sufficient to achieve the legislative object. The judgment articulated that the mere use of “shall” in statutory language is not determinative of a provision’s mandatory character. Instead, courts must examine the legislative object, design and context to ascertain the provision’s true nature.

The analysis by the Court, while referring to the ratio laid down in State of Mysore v. V.K. Kangan on the principle that the intention of the legislature and the context in which  legislation came into being should be considered while interpreting statutory words. The court’s reasoning failed to account for the basic legislative intent of the protection of women against custodial violence. The Court’s observation, that if non-compliance would defeat the law’s object, then the provision must be regarded as mandatory, ironically undermines its own conclusion reached by it, as treating §43(5) as directory directly defeats its fundamental protective purpose.

The legislative history illustrates that §43(5) was specifically enacted after the 135th Law Commission Report on Women in Custody, that documented systemic abuse and recommended stringent procedural safeguards. The provision is thus a focused attempt to curb custodial violence against women, especially at night when supervision is minimal and vulnerability is at its highest. The Court relies on Dattatraya Moreshwar v. State of Bombay which established that statutory provisions creating public duties generally directory in nature. However, this reliance by the court overlooks that section 43(5) is enacted to protect individuals from state abuse and not an enactment relating to performance of a public duty. The court’s interpretation contradicts the fundamental protective purpose of the provision by holding this provision as directory, precisely defeating the law’s object that the court itself acknowledged as the test for mandatory provisions.

Administrative Expediency over Substantive Rights

The Court’s reasoning responsible officers must provide explanations for procedural non compliance but it may not render the arrests made in violation of the provision illegal reveals the second serious deficiency of this judgment. This judicial reasoning creates a problematic hierarchy where procedural violations are treated as administrative irregularities rather than substantive breaches of custodial rights.

Further, the High Court interpreted the silence of §43(5) of BNSS in terms of not specifying the consequences for non-compliance as supporting a directory nature. This judicial reasoning reflects a fundamental misunderstanding of constitutional interpretation as the absence of explicit penalties does not diminish the mandatory nature of rights but rather calls for judicial enforcement of procedural obligations. Many provisions in the BNSS do not explicitly state consequences because the consequence is implicit in the legal framework that is the invalidity of any action taken in violation of mandatory provision. This principle is illustrated by §35 of BNSS, where the Supreme Court has held through several decisions that even though §35 does not mention any explicit consequence of for non-compliance, arrest in these cases becomes unconstitutional and vitiated if there is a violation of procedural requirements such as notice and communication of reasons for arrest.

This approach legitimises  impunity within police forces by reducing custodial violations to matters requiring mere administrative explanations and bureaucratic formalities. This reduced standard of liability potentially promotes non-compliance by removing any real consequences for procedural violations. Such a judicial stance aligns with broader governmental impulses to prioritise state control and administrative expediency over individual civil liberties and constitutional rights protections.

The ambiguity of “exceptional circumstances”

The third and most practically evident caveat of the Deepa v. S. Vijayalakshmi interpretation addresses the provision’s failure to define “exceptional circumstances,” creating interpretive ambiguity that becomes increasingly more problematic when combined with the court’s directory characterization. Since the exceptional circumstances have not been defined, they can be interpreted subjectively in different situations without clear standards.

This interpretive ambiguity creates significant scope for misuse, especially when coupled with the declared directory nature of the provision. This directory interpretation by the Court further exacerbates this void since it lowers the threshold for compliance and reduces judicial scrutiny of the criteria for exceptional circumstances to mere formality. The police may invoke exceptional circumstances with minimal scrutiny and thus, defeat the provision’s protective purpose.

This interpretation furthers gender hierarchies by assuming that individual’s rights are less significant than administrative efficiency. Importantly, this serves as a tool for institutionalised discrimination based on class, caste and community identity along with other social markers of social vulnerability wherein law enforcement selectively applies the exceptions without a concrete criteria. The interpretive framework potentially reinforces the very conditions of vulnerability and abuse that the provision was intended to eliminate.

What Next?

While the Supreme Court is yet to clarify the definitive position on the nature of Section 43(5) of BNSS, the deviation introduced by the Madras High Court has necessitates urgent intervention by the Supreme Court. This conundrum has the potential of undermining the rights of the women creating a legal uncertainty. The Supreme Court needs to lay guidelines for the precise definition of “exception circumstances” to prevent subjective interpretations and abuse of the process by the state

The promise of equal protection under the law remains hollow when the procedural safeguards are reduced to directory formalities, abandoning society to systemic abuse. It is in this view that intervention by the Supreme Court is necessitated to clarify the judicial interpretation of the provision.