Distinguish between Executive and Judicial Magistrates. Do the BNSS reforms strengthen or weaken safeguards for personal liberty?

Article 50 directs the State to separate the judiciary from the executive. Criminal procedure applies this by splitting magistracy into two arms. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the CrPC, keeps the split but blurs it at critical points, so its effect on liberty is mixed.

Executive vs Judicial Magistrates

• Function: Executive Magistrates do administrative and preventive work such as maintaining public order. Judicial Magistrates appreciate evidence, try and convict [4].
• Control: Executive Magistrates (DM, SDM) are appointed by the State Government and are subordinate to the DM. Judicial Magistrates work under High Court control [2].
• Competence: Executive Magistrates are trained as administrators, not trial judges [4].
• Liberty role: an arrested person must be produced before a Judicial Magistrate within 24 hours (Article 22) [5].

Safeguards strengthened

• Undertrial relief: first-time offenders get bail after serving one-third of the maximum sentence [5].
• Mandatory forensics for offences punishable with seven years or more reduces reliance on confessions [5].
• Fixed timelines for judgments and framing of charges, plus electronic proceedings, speed up trials [5].

Safeguards weakened

• Police as magistrates: Section 15 allows police officers of SP rank to be appointed Special Executive Magistrates. CrPC Section 21 allowed only Executive Magistrates [2][3]. In Delhi (October 2026), an ACP sitting as SEM heard a custody plea from the same police force. The plea was refused, but the law does not require that independence [1].
• Split police custody: the 15 days of police custody can be used in parts within the first 40/60 days, which risks denial of bail [5].
• Mandatory bail narrowed for undertrials facing multiple charges [5].
• Handcuffing is permitted for economic offences, contrary to Supreme Court directions [5].

On balance, the BNSS makes trials faster but shifts pre-trial power towards the police, which weakens liberty where it is most exposed. Three steps would align the reform with Article 21 and the Article 50 ideal:

• limit SEMs to public-order functions;
• send every custody extension to a Judicial Magistrate;
• adopt the Standing Committee's recommendation to clarify the custody clause [5].