Illusions of Safeguard: A Critical Appraisal of Warrantless Searches under §185 Bharatiya Nagrik Suraksha Sanhita

This paper examines whether §185 of the Bharatiya Nagrik Suraksha Sanhita (BNSS) 2023, successor to §165 of the Code of Criminal Procedure, 1973 (CrPC), provides real accountability in warrantless searches or whether its safeguards remain largely illusory. While the provision seems to balance investigative necessity with the protection of individual liberty and privacy, the two-fold safeguard distinguishing between conditions that 'shall be followed' and those applicable 'so far as may be', opens the door to circumvention. This weakness has also been reinforced by judicial interpretation, where even mandatory safeguards are treated as directory, where omissions have been excused on some general grounds of urgency or public unwillingness, and violations have been reduced to the status of mere irregularities. Courts have further prioritised evidentiary utility over procedural integrity, placing the burden on the accused to prove prejudice and thereby incentivising unlawful shortcuts. Nonetheless, the supposed right to resist unlawful searches is similarly hollow since individuals cannot meaningfully verify compliance at the time of intrusion. Compounding this is the almost total absence of sanctioning mechanisms against police misconduct, with departmental remedies being rather ineffectual, as are criminal-level sanctions and institutional remedies. The paper argues that without reforms that shift the burden of justification to the police, provide for contemporaneous disclosure of reasons, maintain the inviolability of some safeguards, and enhance independent oversight, the accountability prescribed by §185 shall remain merely a symbolic one. In effect, warrantless searches risk becoming the norm rather than the exception, undermining liberty and privacy in the name of investigative convenience.