Executive magistrate and preventive detention: Law behind CJP and AISA cases

The cases of Cockroach Janta Party (CJP) leaders Saurav Das and Ashutosh Ranka, and All India Students Association (AISA) president Neha Bora, have shed light on an obscure but powerful branch of the criminal justice system.

An Executive Magistrate is a government officer given certain powers to maintain public order and prevent anticipated trouble. The office falls under the executive branch of government, unlike a Judicial Magistrate, who works within the judiciary.

The institution has deep colonial roots. British administration concentrated considerable authority in district officers, particularly the District Magistrate, who combined administrative responsibilities with law-and-order powers. Successive Criminal Procedure Codes incorporated preventive powers during the nineteenth century.

After Independence, India gradually separated the judiciary from the executive. Article 50 of the Constitution specifically asks the State to separate the two. The demand dates back to the freedom movement, when the combination of executive and judicial power among district officials was criticised as a threat to impartial justice.

Also read: ‘We are not signing’: AISA chief Neha Bora rejects peace bond

But Parliament retained a distinct executive magistracy because decisions on public order sometimes cannot wait.

Magisterial powers

In the Bharatiya Nagarik Suraksha Sanhita (BNSS), states designate Executive Magistrates, District Magistrates, and Sub-Divisional Magistrates. They have preventive authority over potential breaches of peace, public nuisances, land disputes that might escalate, unlawful gatherings, and critical public-order cases.

A Special Executive Magistrate is an Executive Magistrate appointed for a particular area or function. Section 15 of the BNSS also permits the appointment of specified police officers as SEMs.

Delhi has an odd supplementary provision. Under Section 70 of the Delhi Police Act 1978, certain designated senior Delhi Police officers can act as an Executive Magistrate. What does this mean? It means preventive proceedings initiated on police information may reach yet another officer in the police establishment.

This system has caused judicial dissatisfaction for several years, as it makes serious inroads on personal liberty.

Peace bond and SEM powers

A peace bond ordinarily involves a financial undertaking without upfront payment, with the magistrate fixing a reasonable amount and deciding whether another person must stand as surety for a specified sum, which may equal the bond amount. A proved breach of the bond conditions can lead to recovery of the penalty after an opportunity to contest it, as well as a separate custody order even if the penalty is paid.

Also read: CJP leaders in jail: Right to protest vs condition to maintain peace

If the authorities are satisfied that a person is likely to violate or disturb the peace, or commit any act that disturbs the peace, they do not have to wait until an offence is committed or violence occurs. Section 126 of the BNSS addresses these situations.

First, the magistrate must have information indicating an apprehended breach of peace and must consider that there are sufficient grounds to proceed. The individual should then be informed of the allegations and be given an opportunity to answer.

Next, the SEM must inquire into the truth of the statement. If, on inquiry, the magistrate finds security is necessary to preserve the peace, he may order a bond under Section 136. If not, he is to discharge the person.

The SEM also has an important interim power. After the inquiry begins, the SEM can require a bond before it concludes if immediate measures are necessary to prevent a breach of peace, an offence, or a threat to public safety. The magistrate must record reasons for taking that step.

At this stage, the power can immediately affect liberty.

Bond proceedings

Section 135(3) authorises the magistrate to require a person to furnish an interim bond, in accordance with the reasons recorded, if the magistrate is satisfied that immediate preventive measures are necessary. The statute provides for detention until the interim bond is furnished or the inquiry is concluded if the interim bond is not furnished.

The next stage is the inquiry. If the magistrate ultimately orders security under Section 136 and the person neglects or refuses to give it, he can be detained in jail under Section 141 until he gives security or the prescribed time expires. Section 141 also deals with a distinct scenario. A peace bond has already been entered into, and the person later breaches it. The magistrate who recorded the reasons for believing the breach can then order arrest and detention for the remainder of the bond period.

Neha Bora challenged the first stage: a notice asking why she should not be required to furnish a bond. The Delhi High Court dismissed her petition on Friday (23rd October).

Saurav Das and Ashutosh Ranka, on the other hand, faced a far graver outcome: they were accused of breaching bonds they had already furnished. They had executed peace bonds on October 10 and were subsequently accused of violating them through their conduct surrounding the Jantar Mantar protest.

What restrictions have courts put on these powers if they can result in imprisonment? The Court acknowledged that preventive powers are warranted when peace is expected to be disturbed. But it stressed that procedural safeguards must be closely followed.

Also read: Neha Bora denies role in CJP protest call, challenges Delhi Police notice in High Court

The magistrate must begin an inquiry into the truth of the information before requiring an interim bond. There must be prima facie grounds for interference, the necessity should be urgent, and the reasons should be recorded.

The Supreme Court found the bond process 'judicial' in nature because of the liberty interests involved, notwithstanding its administration by magistrates via preventive jurisdiction. In the Neha Bora case, the High Court stated that proceedings under this chapter are preventive, not punitive, and that the SEM should form an independent view based on the information.

Right to protest

Article 19 of the Constitution guarantees freedom of speech and the freedom to assemble peacefully. However, these are subject to reasonable restrictions in the interests of public order. For this reason, an excessively general undertaking may be problematic.

A situation that effectively prevents participation in lawful future protests would directly impact an Article 19 freedom and would have to be justified accordingly.

Delhi High Court observations

Saurav Das and Ashutosh Ranka challenged the SEM's order extending their custody after the authorities accused them of breaching peace bonds they had furnished earlier.

After they withdrew their petitions before the High Court, the Court never delivered judgment on whether the custody was legal or whether the SEM's rejection of sureties was valid. As a result, the court’s stinging observations, asking whether the two activists are Gen-Z, whether India can afford to witness street riots in France, and whether certain sections' demand for regime change is legitimate, do not constitute a legal ruling on those issues.

Also read: Delhi Police Crime Branch summons CJP’s Saurav Das, Ashutosh Ranka a day after release

In Bora's case, the court issued a formal ruling with greater precedential value. She approached the High Court before a bond was imposed. She challenged the SEM's show-cause notice itself, arguing that it rested mechanically on police allegations and that peaceful protest could not provide the basis for preventive action.

The High Court ruled that sufficient material remained to continue the inquiry. The SEM had the police kalandara (report), three general diary entries and material relating to six FIRs. The court nevertheless imposed an important safeguard. The State must give Bora all the material relied upon for the notice and all material it proposes to use during the inquiry, and the SEM must observe the principles of natural justice before ordering a bond.