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The detention of Cockroach Janta Party (CJP) leaders Ashutosh Ranka and Saurav Das, and a notice issued to All India Students’ Association (AISA) president Neha Bora, have brought the powers of Special Executive Magistrates (SEMs) into focus amid protests against the Special Intensive Revision (SIR) of electoral rolls.

SEMs can exercise certain powers to prevent breaches of peace, but they cannot conduct trials. Courts have repeatedly questioned how these powers are exercised, flagging procedural violations and concerns over the impact on personal liberty.

Ranka and Das were arrested on October 14 for allegedly breaching security and entering Jantar Mantar during the protests. On Monday, an SEM extended their custody by two days, taking the total to seven days.

The order signed by SEM Ritu Raj, an ACP-rank officer with the Delhi Police, said that Ranka and Das’s conduct did not inspire “confidence”, that they have “no respect for law” and that they have habitually called for protests at a de-notified site. While being taken away, Das had termed the SEM a “police court” and said “there’s no justice”.

Meanwhile, Neha has challenged a notice issued by another SEM, Mahesh Kumar Meena, asking her to show cause why she should not be required to execute a peace bond, citing the likelihood of a “breach of peace”.

Executive Magistrates function under the government and do not exercise judicial powers. Their promotions, increments and seniority of services depend on their superiors within the Executive.

Traditionally, Executive Magistrates have been revenue or administrative officers. In the national capital, the Delhi Police Act empowers the central government to authorise the Police Commissioner and subordinate officers, not below the rank of ACP, to exercise powers of district and executive magistrates.

SEMs have limited powers, primarily relating to preventive measures to maintain public order.

Judicial magistrates, on the other hand, are administered by the judiciary, that is high courts. They can conduct trials.

Law Commission reports over the years have examined the extent of powers of judicial magistrates vis-a-vis executive magistrates, and if provisions requiring individuals to furnish bonds for good behaviour or initiating preventive proceedings should vest with the executive or the judiciary.

While earlier reports favoured retaining these powers with the executive, the 41st Law Commission report in 1969 argued that preventive measures affect personal liberty and that the power should therefore vest exclusively with the judiciary, through judicial magistrates.

In 2018, the Delhi High Court directed that the period of judicial custody under preventive arrest provisions must not exceed seven days at any one time. It also said “there must be a weekly review by the SEMs… of the need to continue detention”.

Preventive arrest and security provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS) have roots in colonial law dating back to the Justices of Peace Act of 1361, enacted by the English Parliament during the late Middle Ages.

The law empowered “justices of peace” to prevent “breach of peace” by restraining “offenders, rioters and all other barrators” or binding them with sureties of good behaviour. Their role had some parallels with that of special executive magistrates.

The provisions subsequently found their way into India’s criminal procedure framework in 1861. They continued after Independence under the Code of Criminal Procedure (CrPC) and were carried into the BNSS. The BNSS, enacted in 2023 and brought into force on July 1, 2024, replaced the CrPC.

In 1984, the Delhi High Court received an application from Tihar Jail from death-row prisoner Sunil Batra, who highlighted the alleged misuse of preventive arrest provisions.

The application pointed out that “a large number of persons are unjustifiably arrested by the police… under Section 107 Criminal Procedure Code”, without following the prescribed procedure, and kept in jail without being offered the facility of release on bail.

At the time, the court had lamented that where citizens’ liberties are “to be controlled by police officers exercising the powers of executive magistrates”, blurring the separation of the executive and judiciary, “need one be surprised at the consequences which must inevitably flow from such a retrogressive step”.

It had found that the proforma used by SEMs was cyclostyled (copy-pasted) as well as other procedural irregularities. In its verdict, the court directed that individuals must be informed of the reasons they were required to execute a bond. If they were sent to jail for failing to furnish sureties, the warrant had to accompany the SEM’s order.

More than 30 years later, in 2018, a division bench of Justices S Muralidhar and Vinod Goel noted that “nothing much appears to have changed since” the HC had disposed of Sunil Batra’s case. The cyclostyled proformas had continued even in 2018, it said.

The division bench once again issued directions on procedures to be followed strictly by SEMs.

The 2018 directions: Calls for oversight and concerns about bias

Noticing rampant misuse of preventive powers, the court asked the Lieutenant Governor to consider setting up an oversight mechanism to periodically review how SEMs exercised their preventive powers. It suggested that retired district judges could be part of such an oversight mechanism.

The court also suggested that the Lieutenant Governor consider calling these officials “Special Executive Officers” instead of SEMs, since the word “Magistrate” could lead people to mistake them for judicial magistrates.

The court also suggested that the Lieutenant Governor consider issuing instructions to prison authorities to create separate spaces within jails for people detained under preventive provisions, so they would not be housed alongside those arrested for committing offences.

The HC had also found that there was “palpable bias in the exercise of these powers” because a “significant percentage of those incarcerated belonged to the minority community”.

“It is apparent that many of them belong to the economically weaker sections of society and are unable to provide the sureties required. Time and again, this court has had to intervene to order their release on personal bonds. It is, therefore, a rampant and indiscriminate use of the aforementioned powers, notwithstanding standing orders issued from time to time and… numerous judgments referred to hereinbefore,” the Delhi HC had observed in 2018.

In 2007, the Delhi HC had endorsed a Madhya Pradesh HC verdict which had held that the executive magistrate “should stress on recording statements to the investigation officer/witness before initiating any proceedings under sections 107/116/151 CrPC”.

The verdict had also directed that an executive magistrate should not send a detenue to jail for failure to furnish surety, in case statements of investigating officers/witnesses have not been recorded. The executive magistrate shall also not sign the order in a mechanical manner on a cyclostyled paper but it should be well reasoned and detailed, the verdict had further outlined.

In July 2007, activist Medha Patkar and other protesters — 25 other women and 95 men — opposing the Sardar Sarovar dam project were arrested in Madhya Pradesh under CrPC Section 151 for attempting breach of peace.

After being presented before the executive magistrate, some of the men were released on furnishing personal bonds. The rest, including Patkar, who had refused to execute such a bond were sent to jail.

It had also held that demanding execution of bonds, “when they had done nothing to give rise to even an apprehension that they will disturb public tranquillity, public peace or public order”, and further detention when they refused to execute the bonds, “is wholly without the authority of law and was in violation of their fundamental right” to personal liberty.

The court had also directed the MP government to pay compensation of Rs 10,000 each to those wrongfully arrested and kept in custody, and if necessary, recover the cost from the officers responsible.