The Curious Case of Police Power and Fundamental Rights

Unpacking the dichotomy between the Code of Criminal Procedure and the Basic Structure of the Indian Constitution

The Code of Criminal Procedure (CrPC) and the Basic Structure of the Indian Constitution (BS) have long been at the centre of a tug-of-war. On one side, the CrPC gives police powers that can be both broad and unchecked, while on the other, the BS ensures that the Constitution's basic structure remains intact. Let's take a closer look at how this dichotomy plays out in the courts.

Section 41 of the CrPC: A Licence to Stop and Search?

Section 41 of the CrPC allows police officers to stop and search individuals without a warrant, provided they have 'reason to suspect' that they are involved in an offence. Sounds reasonable, but what happens when this power is misused? In Re: Kesavananda Bharati, the Supreme Court held that no law could take away the fundamental right to life and liberty guaranteed by Article 21. Does this not apply to the power to stop and search?

The CrPC's power to stop and search has been the subject of much debate. In Re: D.K. Basu, the Supreme Court held that the power to arrest and detain must be exercised with a degree of reasonableness. But what about the power to stop and search? Can it be said that this power is always exercised reasonably?

The Limits of Police Power under Article 21

Article 21 of the Constitution guarantees the right to life and liberty. But what happens when this right is threatened by police power? In Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that the right to life includes the right to shelter. Can we say that the right to life includes the right to be free from arbitrary arrest and detention?

The CrPC's power to stop and search is clearly subject to Article 21. But how can we ensure that this power is exercised with reasonableness? The answer lies in the courts. In Suresh Kumar Koushal v. Naz Foundation, the Supreme Court held that the courts must ensure that the Constitution's basic structure remains intact.

The BNNS (1973) and the CrPC's Power to Stop and Search

The Basic Structure of the Indian Constitution (BNNS) was first articulated by Justice Mudholkar in the landmark case of Kesavananda Bharati v. State of Kerala. Since then, the BNNS has been interpreted to include several fundamental rights, including the right to life and liberty. But what happens when these rights are threatened by police power? In State of Maharashtra v. Chandrabhan Vinayak Patil, the Supreme Court held that the power to stop and search must be exercised with a degree of reasonableness.

The BNNS and the CrPC must be read together. While the CrPC gives police powers that can be broad and unchecked, the BNNS ensures that these powers are exercised with reasonableness. The BNNS, like the character of Josef K.