Section 42: Protection of members of armed forces from arrest
Section 42 of BNSS 2023, protection under the act is available for members of the Armed Forces of the Union by virtue of not being arrested otherwise than with prior authorization from a governmental authority granted to him during the course and scope of an action he had undertaken in that capacity.
Sub-section (1) says that no member of the Armed Forces of the Union shall be arrested for acts done or purporting to be done under the authority of the Central Government unless the consent of the Central Government is received beforehand.
This guarantees that members of the armed forces are not subject to arrest and prosecution based upon their official activities, and that all such actions shall be susceptible to review and punishment at the hands of the high echelons of the political system. Central government consent should be there so that except those with powerful justifications no kind of activities by military should go
unobstructed or frustrated in the name of legal challenges.
Sub-section (2) grants to the State Governments the right to extend similar protections to particular categories of personnel who accept the duty to preserve public order, including personnel of state police or para-military forces.
By an official notification, State Governments may classify classes of personnel subject to their administration to whom the protections conferred under this section shall be extended.
In this case, the term Central Government is substituted by State Government to bring such persons under these provisions. The provision here can be used as a way of protecting the local forces engaged in public order duties while national security is maintained.
Requirement of prior consent by Central Government safeguards against the possible misuse of powers by the law enforcement agencies of the states and ensures that military personnel involved in intricacies and sensitivities are not misused without proper cause or justification. This safeguard is of paramount importance to the preservation of operational efficacy of the Armed Forces and non-interference with the duties of armed forces.
The provision empowers State Governments to extend similar protection to their forces. It also enhances flexibility in the application of legal safeguards and recognizes that military and paramilitary forces often operate in different conditions within different regions of the country, thus requiring such legal protections being extended to forces engaged in the maintenance of public order at the state level.
