The detention of Cockroach Janta Party (CJP) activists Saurav Das and Ashutosh Ranka, along with a preventive notice issued to All India Students’ Association (AISA) president Neha Bora, has brought Special Executive Magistrates (SEMs) under scrutiny amid protests against the Election Commission’s Special Intensive Revision (SIR) of electoral rolls.
Das and Ranka challenged the extension of their custody by a Special Executive Magistrate before the Delhi High Court. However, they withdrew their petition on Wednesday after Justice Subramonium Prasad suggested that they await the SEM court’s reconsideration of their sureties.
Meanwhile, Bora has challenged a notice issued by another SEM, asking her to show cause why she should not be required to execute a peace bond over apprehensions of a breach of peace.
The developments have renewed questions about the scope of SEMs’ preventive powers.
According to The Indian Express, courts have repeatedly raised concerns about procedural lapses in preventive proceedings and their implications for personal liberty.
Who are Special Executive Magistrates?
Special Executive Magistrates are officers vested with specific magisterial powers under the law, primarily to prevent breaches of peace and maintain public order.
In Delhi, the Delhi Police Act empowers the central government to authorise the Police Commissioner and subordinate officers of at least the rank of assistant commissioner of police (ACP) to exercise executive magisterial powers.
Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, executive magistrates can initiate preventive proceedings, require individuals to show cause why they should not furnish bonds to maintain peace and take other measures authorised by law to prevent anticipated disturbances.
However, their decisions can have serious consequences for personal liberty, particularly when individuals are required to furnish bonds or are placed in custody for preventive reasons. Their powers must therefore be exercised in accordance with the law and applicable procedural safeguards.
How are SEMs different from judicial magistrates?
The primary difference lies in their institutional position and the nature of their powers.
Special Executive Magistrates: They function within the executive and exercise powers conferred by law to prevent breaches of peace and maintain public order. In Delhi, designated police officers can exercise these powers under the Delhi Police Act.
Judicial magistrates: They function within the judicial system under the supervision of the High Courts. They exercise judicial powers under the criminal procedure law and can conduct criminal proceedings and trials within their jurisdiction.
Executive magistrates traditionally have included revenue and administrative officers. In Delhi, however, police officers of the requisite rank can also be authorised to exercise executive magisterial powers.
Why are SEMs in the news after SIR protests?
The current scrutiny follows protests against the Election Commission’s SIR of electoral rolls and demands for accountability from Chief Election Commissioner Gyanesh Kumar.
CJP activists Saurav Das and Ashutosh Ranka were detained on October 13 after they allegedly entered the barricaded Jantar Mantar protest site by climbing its gates. They were subsequently sent to custody for five days.
On October 19, SEM Ritu Raj, an ACP-rank Delhi Police officer, extended their custody by another two days after rejecting the sureties furnished for them.
The order said their conduct did not inspire confidence, raised concerns about respect for the law and indicated a risk of further breaches of peace. It also referred to what it described as repeated calls for protests at a de-notified site.
Das and Ranka challenged the order, arguing that the magistrate had wrongly rejected their sureties and lacked jurisdiction to extend their custody on the grounds cited.
On October 21, the Delhi High Court questioned why they had approached it before pursuing the alternative remedy of revision. Justice Prasad also questioned whether the insistence on sureties was unlawful, given the allegations that the activists had breached an earlier peace bond.
The activists subsequently withdrew their petition after the court suggested they await the outcome of the proceedings before the SEM.
The case has brought attention to the extent to which preventive powers can be used when demonstrations lead to allegations of public-order violations.
What is the Neha Bora case?
Neha Bora, president of AISA, has separately challenged a notice issued by SEM Mahesh Kumar Meena.
The notice asked her to show cause why she should not be required to execute a peace bond, citing the possibility of a breach of peace.
According to The Indian Express, Bora was detained on October 16 while on her way to a planned march at Connaught Place. She was released in the early hours of October 17 after completing the required formalities.
The notice issued subsequently alleged that she had shouted slogans during a protest at Mandi House and had been involved in repeated protest-related activity despite prohibitory orders. It also alleged that she had encouraged participation in an unauthorised demonstration at Central Park, Connaught Place.
Bora challenged the notice, arguing that it relied on vague and factually incorrect material and did not adequately explain why a breach of peace was anticipated.
The Delhi High Court was scheduled to hear her challenge on October 22, according to the report.
Why have courts questioned SEMs’ powers?
The concerns surrounding SEMs predate the current protests. Courts have previously examined whether preventive powers were being exercised in accordance with statutory procedures and whether individuals were being detained without adequate justification.
In 1984, the Delhi High Court examined concerns about the use of preventive arrest provisions in a case involving Tihar Jail inmate Sunil Batra, The Indian Express reported.
The court raised questions about the consequences of allowing police officers exercising executive magisterial powers to control citizens’ liberty without sufficient procedural safeguards.
More than three decades later, a Delhi High Court division bench revisited the issue in 2018, as per The Indian Express. It observed that little had changed in the use of preventive powers and issued directions on the procedures SEMs must follow.