India is witnessing the quiet normalization of a dangerous legal culture—a culture where citizens are increasingly deprived of liberty not for what they have done, but for what the police believe they might do.

Section 170 of the Bharatiya Nagarik Suraksha Sanhita, 2023, previously Section 151 of the Code of Criminal Procedure, empowers a police officer to arrest a person without warrant if the officer has knowledge of a design to commit a cognizable offence and believes that such offence cannot otherwise be prevented. On paper, the provision appears reasonable. Every society requires mechanisms to prevent imminent violence. No legal system can wait for a crime to occur before taking action where a genuine and immediate threat exists.

However, the constitutional legitimacy of such a provision depends entirely upon one condition: the power must remain exceptional. It must be exercised only when there are clear, objective, and demonstrable reasons to believe that a cognizable offence is about to take place.

The troubling reality is that in many police stations across India, preventive arrest has ceased to be an exception. It has become routine.

THE RISE OF MECHANICAL PREVENTIVE ARRESTS

Through several RTI applications, inspections of police records, and examination of Daily Diary (DD) entries from different police stations, a disturbing pattern emerges. Arrests under Section 170 BNSS frequently appear to be based not on genuine intelligence or imminent threats, but on standardized narratives repeated across cases.

The language of the DD entries is often strikingly similar. A typical entry states that a police officer, while patrolling the area, noticed two individuals quarrelling in a drunken state, abusing one another, and creating a situation that could have led to a cognizable offence. The entry usually concludes by stating that had the police not intervened, a serious offence might have occurred.

What is remarkable is not the content of a single DD entry but the repetition of nearly identical language across numerous cases. In several instances, Medical Legal Certificates did not indicate alcohol consumption despite the DD entry alleging drunken behaviour. Independent witnesses were absent. No specific overt act suggesting imminent criminal conduct was recorded. The conclusion that a cognizable offence was about to occur appeared to rest solely on a templated narrative.

When liberty is taken away through standardized paragraphs rather than individualized reasoning, preventive policing begins to resemble administrative detention.

And administrative detention is always dangerous in a constitutional democracy.

"DESIGN TO COMMIT AN OFFENCE" CANNOT MEAN MERE SUSPICION

The language of Section 170 BNSS is narrower than how it is often applied in practice.

The provision does not authorize arrest because an individual appears suspicious, inconvenient, intoxicated, poor, politically active, or socially undesirable. The law specifically requires the police officer to have knowledge of a design to commit a cognizable offence.

The choice of the word "design" is significant.

A design implies planning.

Planning implies intention.

Intention requires objective material.

The law therefore contemplates something more than mere suspicion. It requires identifiable facts that reasonably indicate that a particular offence is about to be committed.

The provision imposes a second safeguard as well. Arrest is permissible only when the commission of the offence cannot otherwise be prevented. This means arrest must be the last resort, not the first response.

Yet, in numerous preventive arrest records, there is little indication that less restrictive alternatives were ever considered. Rarely do the records explain why a warning was insufficient, why the individuals could not simply be dispersed, or why detention became unavoidable.

Without such reasoning, the distinction between preventive detention and arbitrary detention begins to disappear.

THE CONSTITUTION DOES NOT PERMIT PREDICTIVE POLICING WITHOUT ACCOUNTABILITY

Article 21 of the Constitution guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. Since the landmark judgment in Maneka Gandhi v. Union of India, that procedure must also be fair, just, and reasonable.

The Supreme Court has repeatedly emphasized that the existence of a power does not justify its routine exercise.

In Joginder Kumar v. State of Uttar Pradesh, the Court observed that no arrest can be made merely because it is lawful for a police officer to do so. The existence of power and the justification for its exercise are two different things.

Similarly, in D.K. Basu v. State of West Bengal, the Court recognized the dangers of arbitrary detention and custodial abuse, laying down procedural safeguards designed to protect citizens from misuse of police powers.

The constitutional validity of preventive arrest provisions survives only because courts assume that they will be exercised with restraint and based upon objective material. If those assumptions collapse in practice, serious constitutional questions arise.

THE DANGEROUS PSYCHOLOGY OF PREVENTIVE POWER

Every unchecked preventive law gradually creates a dangerous institutional mindset.

The mindset is simple: suspicion becomes sufficient.

Once that transformation occurs, the relationship between the citizen and the State changes fundamentally.

The citizen is no longer treated as innocent until proven guilty.

Instead, the citizen becomes a potential offender waiting to be restrained.

The police cease to function solely as investigators of crime and begin functioning as predictors of human behaviour.

But liberty cannot survive in a system where detention is justified through speculation rather than evidence.

History repeatedly demonstrates that preventive powers rarely remain confined to extraordinary situations. Once normalized, they gradually expand to encompass protests, public gatherings, political activity, marginalized communities, and ordinary citizens who lack the resources to challenge unlawful detention.

The danger is not merely misuse by an individual officer.

The danger is institutional habituation.

PREVENTIVE JUSTICE CANNOT BECOME PREVENTIVE PUNISHMENT

Preventive provisions are intended to prevent future harm. They are not intended to punish individuals without trial.

Yet in practice, preventive detention frequently carries punitive consequences.

A person is apprehended.

Taken to a police station.

Kept in custody.

Produced before an Executive Magistrate.

Subjected to public embarrassment and social stigma.

Eventually released.

Even if detention lasts only a few hours, the constitutional injury remains significant. Liberty lost temporarily is still liberty lost.

The Constitution does not measure freedom in hours or days.

Freedom either exists or it does not.

THE NEED FOR STRUCTURAL REFORM

The problem today is not merely individual misuse. It is the absence of meaningful procedural safeguards capable of distinguishing genuine preventive action from arbitrary detention.

Several reforms deserve serious consideration.

First, every preventive arrest should contain detailed and individualized reasons explaining the precise material relied upon, the specific apprehended offence, and why detention was necessary.

Second, wherever feasible, the circumstances leading to preventive arrest should be recorded through body-worn cameras or audio-visual recording systems.

Third, Executive Magistrates should conduct meaningful scrutiny instead of mechanically endorsing police narratives.

Fourth, fabricated or copy-pasted DD entries should attract departmental accountability and disciplinary consequences.

Finally, police departments should periodically publish statistical data regarding preventive arrests, including the number of detentions, duration of custody, and grounds relied upon. Transparency remains one of the most effective safeguards against abuse.

A DEMOCRACY CANNOT CRIMINALIZE POSSIBILITY

The most troubling aspect of arbitrary preventive detention is not the arrest itself.

It is the philosophy behind it.

A constitutional democracy cannot permit liberty to depend solely upon the subjective satisfaction of a police officer unsupported by verifiable material.

The police may prevent crime.

They may intervene where genuine threats exist.

They may act swiftly where violence is imminent.

But they cannot manufacture criminality through imagination.

The real constitutional question is not whether Section 170 BNSS should exist.

The real question is whether deprivation of liberty can be justified through templated suspicion, mechanical paperwork, and speculative assumptions about future conduct.

If the answer becomes yes, then the presumption of innocence slowly dies—not through legislation, not through judicial pronouncement, but through normalization.

And once liberty begins to depend upon the convenience of the State rather than the protections of the Constitution, every citizen becomes only one DD entry away from detention.

Aditya Chauhan is an advocate. The views expressed are personal and are intended to stimulate debate on constitutional liberties, preventive policing, and procedural accountability under the Bharatiya Nagarik Suraksha Sanhita, 2023.

MANUFACTURING CRIMINALS BEFORE CRIME | The Silent Expansion of Preventive Arrest Under Section 170 BNSS | Adv. Aditya Chauhan