CJP leaders Saurav Das and Ashutosh Ranka remain in custody, but no criminal court has remanded them. They are instead held under a law meant to prevent a breach of peace that police say they may cause.

On Monday, a Special Executive Magistrate at Mandir Marg police station extended their judicial custody, which was due to end the same day, until October 21. The order said the police had indicated a risk to public tranquility. It also rejected as inadequate the fresh sureties – people who vouch that the accused will keep to the conditions of their bond – offered by their lawyers.

When the two were taken back to Tihar, Das stated through the police van’s grill, “We are in an emergency. There is no justice. This is a police court and just look at the grounds they have taken.”

The detention came under Sections 126 and 170 of the BNSS and is separate from the FIR and Crime Branch probe against them over the hoisting of the Tricolour at the restricted area in Jantar Mantar. But lawyers argue legal provisions are being misused to hold them and the CJP has said they have approached the Delhi High Court for an urgent night hearing.

These developments are significant because now there are two separate legal proceedings involving the two CJP leaders. That distinction is at the heart of the dispute, in a case which raises larger questions.

What is an SEM proceeding?

CJP lawyer Abhik Chimni said the defence’s objection is that the preventive proceeding is being used to keep the two in custody on the basis of an anticipated future protest rather than a specific act of violence or disturbance.

“This is an issue of preventive custody,” Chimni said. “There is no FIR against my clients forming the basis of this custody.”

“The state has said there is an imminent threat to public order and an imminent threat to public tranquillity,” Chimni said. “But there is not one statement which shows what the actual apprehension is. The order only says that the state has an apprehension.”

Preventive proceedings are different from an ordinary criminal prosecution.

Criminal lawyer Sahil Yadav, who practises in Delhi, explained that the purpose of an SEM proceeding is essentially to prevent a person from causing another disturbance, with the bond acting as a financial deterrent.

“It’s unheard of that for a small thing or for public tranquility you put someone in custody. You take a bond and you get the bond forfeited,” Yadav said.

“Every time you create a nuisance, you deposit a lakh with me. So the person gets deterred – that if I create nuisance again my one lakh rupees would be taken.”

In such proceedings, a person can be required to furnish a bond and a surety - someone to make sure the person complies with the conditions imposed.

“Surety can be my brother, or my father, or my childhood friend,” he said.

The dispute in Das and Ranka’s case, however, has centred on whether the sureties produced by their lawyers could be accepted and verified.

According to a lawyer aware of the matter, the defence has tried to submit eight sureties so far. The first two were rejected because they were from outside Delhi and would take longer to verify. Two others were withdrawn after the defence was told they had criminal records - cases that were imposed during the protest itself. The last two persons presented as sureties were from the education sector. These were rejected ostensibly because of a mismatch and the lack of details.

The lawyer said that lawyers also offered personal bonds, relying on the Delhi High Court’s 2018 judgment in Aldanish Rein v State of NCT of Delhi. He argued that Section 135(3) BNSS permits release once a surety is furnished and does not require a person to remain in custody merely because verification is pending. “The Aldanish case very clearly states that pending verification a person can be released on personal bonds,” the lawyer said. 

Yadav independently questioned why the failure to immediately verify a surety should result in continued incarceration. “This is unheard of in the sense that it’s the Special Executive Magistrate’s proceeding,” he said. “Let’s say I have committed a crime... in the surety the police comes, swiftly verifies it in one or two days; the bail does not get stopped because of this.”

“There are multiple judgments of the Supreme Court which say that you should not curtail anybody’s fundamental right based on these procedural problems. It’s the state’s duty to verify it as soon as possible.”

Police involved in the SEM process?

The arrangement has also raised a larger question over the nature of the Special Executive Magistrate.

The lawyer aware of the matter has characterised the arrangement as a conflict of interest, saying: “The SEM is an ACP-rank officer with the Delhi Police, of the rank of IPS. This is a clear conflict of interest.”

Yadav made a broader argument about the separation between executive and judicial power.

“There is no judicial mind being applied here. There is a police mind being applied here. The SEM is basically a policeman,” he said.

The issue, he argued, is particularly important when the preventive machinery is being used against political protesters who are opposing the state itself.

A colonial legacy?

Explaining the colonial origins of these executive preventive powers, Yadav said, “If you look at the history of India, the powers of the executive magistrate have been slowly taken away. Because these were the functionalities of the British Raj — they did not want the judicial application of mind. So these powers were given to SEMs to control dissent.”

The preventive framework has survived several changes to India’s criminal procedure laws: the old Criminal Procedure Code contained provisions for requiring security for keeping the peace, while the present BNSS retains preventive powers in Sections 126 and 170.

For Yadav, however, the issue is not merely historical.

“The little power that they do have is meant to be used in real cases. But there, these powers are not used,” he said, citing a case from his own practice involving a man accused of beating his wife in public. The man was released the next day, Yadav said, and subsequently allegedly assaulted his client again.

“That is what the powers are for. But now they are being used to stamp out dissent, to stop protestors from protesting at a public place without any evidence of violence.”

What does the police say about Das and Ranka?

The October 19 order gives a different account.

The police told the SEM there was an “imminent continued threat”, citing an anonymous WhatsApp communication sent to the previous SEM, who had recused himself thereafter. It also relied on the CJP leaders’ previous calls for protests, including at Jantar Mantar (now de-notified as a protest site) and Connaught Place.

The SEM found that Das and Ranka had “deliberately breached” bonds executed on October 11 and had “immediately committed the offence of breach of peace”. The order also said their conduct suggested “habitualness” in calling protests at de-notified areas and that their assurances that they would not repeat such conduct did not inspire confidence.

The magistrate therefore concluded that the police material raised “serious concerns” about the likelihood of a breach of peace and disturbance of public tranquillity.

The defence disputes this interpretation.

The lawyer aware of the matter said the Jantar Mantar incident is already the subject of a separate FIR. He also argued that there was no material showing that Das or Ranka had engaged in violence or posed a threat to public safety.

“There is a constitutional presumption — innocent until proven guilty — that directly follows Article 21 so if somebody has been accused in a crime shall not be labeled a criminal and their personal liberty shall not be curtailed,” the lawyer said. “This act by the SEM is a clear violation of Article 21.”

The seven-day question

Another dispute concerns how long a person can remain in custody under the preventive proceeding.

The lawyer quoted above argues that the law permits a maximum of seven days of such custody and that keeping Das and Ranka in custody until October 21 would take them beyond that limit.

“The SEM can send someone to judicial custody (JC) for a maximum of seven days only. On 21, they will be in JC for the 8th day,” he said. “Isn’t that superseding their own powers?”

Yadav, meanwhile, said the broader question was why imprisonment was being used at all when the purpose of the proceeding could ordinarily be served through a bond.

Does the separate FIR amount to double jeopardy?

On being asked whether the existence of two proceedings arising from the same episode could also raise a question about double jeopardy, Yadav said he did not believe that argument applied in this case.

“No, double jeopardy doesn’t apply here. The crimes are different. One is public peace and tranquility and the criminal case is trespassing.”

The immediate practical issue, however, remains the sureties.

The October 19 order records that one surety had a mismatch between the photographs on the bond and Aadhaar and could not produce another satisfactory identity document. Another, the order says, could not provide basic details about Das. The magistrate concluded that neither demonstrated sufficient control over the respondents — which it described as the “primary essence” of a surety.

The lawyer quoted above disputes this approach. “In my 11 years of career, for the first time, a surety was asked the name of the mother of the accused,” he said. “This was also the first time, when a surety was being cross-examined by SEM. And this was not done in the presence of the advocates. We were asked to go out.”

CJP legal team head Ratna Singh was more blunt in her assessment of the proceedings. “It’s not less than a circus. There should be an inquiry on how things are being done inside. How they are crushing someone’s liberty,” she said.

The larger question

For Yadav, the case illustrates the unusual position of preventive powers: they allow the state to restrict a person's liberty without the proceeding functioning like an ordinary criminal trial.

He said he had never seen preventive powers used in this manner against political or public figures. He believes the matter should now be taken to a constitutional court.

“I think the constitutional court should interfere. But they won’t do it by themselves, someone has to approach them,” he said.

The CJP lawyers have said they intend to challenge the order.

While the next hearing on October 21 will test how far that preventive power can be stretched, CJP legal head Ratna said in a post on X: “We have moved the Delhi High Court and requested an urgent night hearing. Saurav and Ashutosh should not spend a single minute behind bars. Their liberty must not be curtailed because of political games. Justice must not wait.”

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