Bharatiya Nagarik Suraksha Sanhita, 2023
Section 42
Protection of members of Armed Forces from arrest
(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.
Why this exists
This provision continues a long-standing colonial-era safeguard (originally in the Code of Criminal Procedure) meant to shield soldiers and other government forces from being arrested or harassed for actions taken while enforcing law and order or carrying out official orders, such as during riots, protests, or military operations. The idea is to prevent local police or private complainants from using arrest as a tool to intimidate or obstruct forces performing lawful duties, while still allowing accountability through a sanction process before prosecution or arrest can proceed.
Common misconceptions
- Myth: This section means soldiers can never be arrested or punished for anything.
Fact: It only delays arrest until the government gives consent — it does not stop investigation, prosecution, or punishment if wrongdoing is proven. - Myth: This protection covers everything a soldier does, on or off duty.
Fact: It applies only to acts done, or claimed to be done, in the discharge of official duties — not personal or unrelated conduct.