After Sunset, Where Do Her Rights Go? The Protection Under Section 43(5) BNSS

On 26 October 2026, I was present with some of my fellow law students inside Gate No. 7 of Jamia Millia Islamia. Two girls suddenly approached us and said that a Delhi Police officer had allegedly pushed a girl into a detention bus outside the campus after sunset. We went there to ask the officer why she had been detained. However, he walked away without answering our questions. We then approached Jamia’s security personnel and asked why they were not addressing the matter. In response, a police officer shouted, “Send these boys outside; we will deal with them.” This incident left me thinking about a simple question: if the law provides special protection to women during arrest, what happens when that protection is not followed in practice?

Section 43(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) states that, except in exceptional circumstances, no woman shall be arrested after sunset and before sunrise. In such exceptional circumstances, a woman police officer must submit a written report and obtain prior permission from the Judicial Magistrate of the First Class having the relevant local jurisdiction. This provision does not completely prohibit the nighttime arrest of women. However, it makes clear that such arrests are an exception, not the general rule. The law also requires a specific procedure to be followed before an arrest can take place in these circumstances.

The main concern is whether this protection is being followed in practice or is slowly becoming a formality. If the exception is used too easily, the purpose of the provision is defeated. The requirement of prior permission from a Magistrate is not just paperwork. It is a safeguard meant to ensure that the police cannot decide on their own to arrest a woman at night without the required legal scrutiny. If exceptional circumstances become a routine excuse, the protection offered by Section 43(5) may remain in the law but lose its real value.

The Supreme Court has repeatedly stressed the importance of following legal safeguards during arrest and detention. In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, the Court laid down guidelines to prevent custodial abuse and ensure accountability during arrest. Similarly, in Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, the Court addressed the need to protect women in police custody. Although these judgments do not directly interpret Section 43(5) BNSS, they remind us that safeguards are meant to protect people from the misuse of authority. They cannot be treated as formalities that may be ignored whenever they become inconvenient.

In the Jamia incident, I did not personally witness the initial act of alleged force, and I do not know whether the woman was formally arrested or whether the required permission had been obtained. Therefore, I cannot say with certainty that the arrest was illegal. But the information shared with us raised a genuine concern that deserved an answer. The relevant circumstances and police records should be examined to establish what happened and whether the law was followed. An investigation, rather than assumptions, is necessary to reach a fair conclusion.

In my opinion, the biggest problem arises when exceptions gradually become normal practice. A law cannot protect people if the authorities responsible for following it treat its requirements as optional. Section 43(5) BNSS must be applied seriously. The reasons for a nighttime arrest must fall within the statutory exception, and the required judicial permission must be obtained beforehand. If these safeguards are ignored, there should be a proper inquiry and accountability. Otherwise, the very purpose of providing special protection to women during arrest is lost.

This incident has made me question how effective a legal protection can be if people cannot be confident that it will be followed. As law students, we learn that the police must act according to the law. That principle must apply in practice, too. The question is not whether the police have the power to arrest, but whether they exercise that power within the limits set by law. Section 43(5) must be more than words in a statute; it must be a protection that women can actually rely upon.