Maharashtra Wants 30-Day Preventive Custody: Can State Change Criminal Law?

The Maharashtra Legislative Council on Wednesday passed key amendments to the Bharatiya Nagarik Suraksha Sanhita, India's new criminal procedure law, increasing the period of preventive custody from the current 24 hours to as much as 30 days with judicial approval. The bill is yet to be approveed by the Legislative Assembly.

Besides preventive custody, the proposed changes seek to expand the scope of provisions dealing with digital records, modify the ranks of police officers authorised to exercise certain powers, and introduce mandatory personal appearance for anticipatory bail hearings.

The Amendments

The most significant change concerns Section 170 of the BNSS, which allows preventive arrest when police believe a cognisable offence is likely to be committed. At present, a person can be detained for up to 24 hours before being produced before a court.

Maharashtra proposes allowing a Judicial Magistrate to authorise custody for 15 days at a time, up to a maximum of 30 days, if releasing the person is considered harmful to the maintenance of public order. The government has argued that such extended custody would require court approval.

The state has also proposed amending Section 482 to make the personal presence of an accused mandatory during the final hearing of an anticipatory bail plea.

Under Section 129, offences under the NDPS Act would be added to provisions requiring habitual offenders to furnish security for good behaviour. A breach of such a bond could lead to preventive detention.

Other amendments include widening Section 98 to cover electronic and digital records, and allowing officers of the rank of ACP or SDPO to exercise certain powers currently reserved for more senior officers under Section 15.

What Is Preventive Custody?

Section 170 of the BNSS empowers police officers to arrest a person without a warrant if they know of a plan to commit a cognisable offence and believe the offence cannot be prevented without taking the person into custody.

Under the present law, such a person cannot be detained for more than 24 hours before being produced before a court.

Maharashtra's amendment proposes that a Judicial Magistrate may authorise custody for 15 days at a time, subject to an overall limit of 30 days, if the court is satisfied that releasing the person could affect the maintenance of public order.

Can States Amend Criminal Laws?

The BNSS is a Central law passed by Parliament. However, criminal law is a subject which falls in th the concurrent list of Constitution. This allows states to propose amendments that address their own administrative or policing requirements.

Maharashtra has altered Central criminal laws earlier to introduce provisions specific to the state. One example is Section 353 of the Indian Penal Code, which deals with assault or criminal force against public servants performing their duties. Maharashtra increased the maximum punishment under this provision from two years to five years.

More recently, in March, the state legislature passed a Bill seeking changes to the Bharatiya Nyaya Sanhita. The proposed amendments incorporated provisions earlier included in the Shakti Act, which was introduced to strengthen the legal response to crimes against women.

The latest BNSS amendment Bill also argues that some of the proposed measures were already part of Maharashtra’s legal framework before the Centre enacted the new criminal procedure law in 2023. However, these changes are not immune from judicial scrutiny. Courts can invalidate a state amendment if it is found to be inconsistent with the Central law.

Opposition Warns of Possible Misuse

The Oppisition has expressed concern over the state government’s attempt to increase the duration of preventive arrest, warning that this can be used to target opposition leaders during elections or protests.

Congress MLC Satej Patil argued that the bill had been introduced in haste and warned that its provisions could be misused at the police station level. Shiv Sena (UBT) leader Anil Parab said reducing the rank of officers exercising important powers and extending preventive custody could be used against opposition leaders. He added that even parties currently in power could face the consequences when political circumstances change, PTI reported.

Concerns were also raised by members of the ruling alliance. BJP leader Pravin Darekar said safeguards were necessary to ensure innocent people were not harassed. Shiv Sena leader Omprakash (Bachchu) Kadu said he would not support the provision allowing preventive custody of up to 30 days. BJP MLC Sadashiv Khot similarly expressed concern that the provision could affect protests organised for social causes.

Defending the Bill, Minister of State for Home Yogesh Kadam said the extension of preventive custody would only be possible with a court's permission.