₹1,000 for lost liberty: The illusory remedy under Section 399 BNSS

Recently, in State of Haryana v. Ravinder, a Sonipat court awarded ₹1,000 to a farmer who was prosecuted for burning stubble, after finding that the prosecution by the State was ‘baseless’.

Section 399 of the Bhartiya Nagarik Suraksha Sanhita (BNSS) specifically deals with compensation to person who has been groundlessly arrested. The maximum compensation that can be awarded under Section 399 BNSS reveals that the statutory 'price’ of liberty remains symbolically low. Even as the BNSS was portrayed as a statute that would delcolonialise criminal law, it continues to offer only token remedies for those wrongfully deprived of liberty. The new provisions echo the colonial-era compensation ceilings of the erstwhile Code of Criminal Procedure,1973 (CrPC).

Thousands of individuals are detained in police stations and prisons each year, not because they have been proven guilty, but due to procedural lapses, administrative overreach or errors in judgment. The initial hours of confinement tend to be horrifying and the days and weeks that follow can cause long-lasting psychological damage, disrupt family life and affect employment. By the time the courts step in, the damage is often irreversible. According to the latest National Crime Records Bureau (NCRB) Prison Statistics India Report (2023), undertrials constitute 76.2% of India’s prison population and nearly one-third of them remain in jail for over a year while awaiting trial.

There may be two distinct harms caused by wrongful deprivation of liberty. One is groundless or illegal arrests that occur before trial and the other is post-trial acquittals where individuals are convicted but later declared innocent. Although inter-connected, these scenarios have different legal frameworks. This writing is limited to pre-trial injury.

The pre-trial detention of individuals without sufficient cause remains a pressing concern. Section 399 of the BNSS (new) and Section 358 of the CrPC (old) remain essentially the same. The purpose of this provision is to deter misuse of arrest powers and provide a remedy to the person wrongfully arrested. The compensation cap at ₹1,000 remains unchanged under the newly drafted BNSS without considering inflation and socio-economic factors.

Another significant aspect is that Section 399 states: “Whenever any person causes a police officer to arrest another person”. This wording implies that the compensation is to be recovered from the “person causing the arrest” and not from the arresting officer. Thus, the police officer making such arrest is immune from any liability. Additionally, the provision stipulates that where the magistrate is satisfied that the arrest was made without sufficient grounds and that the arresting officer acted ‘without reasonable cause’, he may direct the payment of compensation. The deliberate use of word “may” in place of “shall” confers judicial discretion upon the magistrate. As a result, even in cases where an arrest is adjudged to be unjustified, the magistrate retains the prerogative to decide whether compensation ought to be awarded.

Moreover, the provision is silent on whether such compensation is supplementary to or in substitution of civil remedies, thereby creating ambiguity in terms of seeking parallel relief through constitutional or civil proceedings.

While Section 399 BNSS provides for immediate monetary relief, it does not account for long-term consequences. So, what substitute does the law provide? Other options for an individual include approaching the High Court or Supreme Court through writs under Article 226 or 32 of the Constitution of India, respectively, for the violation of Article 21, or filing a suit in civil court for claiming damages, which are again lengthy and cumbersome. In such cases, the compensation falls far short of addressing real injury. Even though the Supreme Court in Rudal Shah v. State of Bihar (1983) recognised compensation for wrongful detention as a part of Article 21 of the Constitution of India.

In a catena of judgments, the Supreme Court has observed the need to reform the compensation provisions. Recently, the Bench of Justices Vikram Nath, Sanjay Karol & Sandeep Mehta in Kattavellai @ Devakar v. State of Tamil Nadu emphasised that faulty investigation or weak evidence warrants compensation, suggesting that Parliament could adopt global best practices.

Several countries provide structured, meaningful compensation to individuals.

Canada: Canada’s Charter of Rights and Freedoms recognises wrongful pre-trial detention as a constitutional breach. Section 9 of the Charter protects individuals against arbitrary detention and Section 11(e) ensures the right to reasonable bail. When these rights are violated, either through unjustified denial of bail or by illegal remand, then the courts may award damages or order for an immediate release of person under Section 24(1) of such Charter. In Ward v. Vancouver (City), the Supreme Court of Canada held that damages may be awarded for unlawful arrests and detentions even without proving any malice.

USA: Under Section 1983 of Title 42 of the US Code, individuals can bring actions against public officials for depriving them of rights guaranteed under the Constitution. In Manuel v. City of Joliet, the US Supreme Court ruled that unlawful pre-trial detention itself constitutes a constitutional tort, even when no conviction follows.

Germany's Law on Compensation for Criminal Prosecution Measures, 1971 provides a clear law regarding right to compensation for anyone who is detained without any reasonable justification, whether before or after trial. Once the charges are dropped or the person is acquitted, a compensation of €75 per day of detention automatically follows. The claimant does not need to prove emotional suffering; loss of liberty itself triggers the right.

Moreover, the Law Commission of India’s 277th Report (2018) recommended the need for a comprehensive statutory set-up to compensate victims of wrongful detention and conviction. Recently, the Kerala High Court in Baburajan v. State of Kerala (2025) observed,

“Though the Commission recommended amendments to the Code of Criminal Procedure,1973, to give a compensation in cases of miscarriage of justice resulting in wrongful prosecution of persons, they do not find place in the new BNSS. It is high time to implement the recommendations of the Law Commission in its 277^th Report to set up a legal framework to compensate victims prosecuted wrongfully."

Without such reforms, India risks undermining the very liberty its Constitution seeks to guard. Compensation must be meaningful, enforceable and reflective of real human costs. As Justice Krishna Iyer noted,

“Personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.”

When that procedure is violated, the injury to liberty is profound and the remedy must match its seriousness. Every unlawful detention is a stark reminder that the cost of liberty is borne by real people and not by the state machinery that failed them. By retaining the maximum compensation at ₹1,000 under Section 399 of the new Sanhita, the reform reveals its shallow nature.

India must match law with justice. Statutory frameworks, fair compensation and accountability are not just reforms; they are imperatives. Until the law truly values freedom, the price of liberty will continue to be silently borne by the innocent.

Munazir Hasan is an advocate practicing before the Allahabad High Court.