The recent detention of youth leaders Abhijeet Dipke and Neha Bora in the ‘Lehra Do Tiranga’ march on October 16 at Connaught Place, followed by their releases and the respective ‘peace bonds‘ that Dipke has signed and Bora has been asked to sign, has brought renewed attention to the use of preventive powers against protesters. The controversy follows the remand of Saurav Das and Ashutosh Ranka, two leaders of the Cockroach Janata Party, founded by Dipke, by a Special Executive Magistrate. The SEM court is successively making decisions which raise serious questions about the concentration of preventive and quasi-judicial powers within the executive.On October 14, the two CJP leaders were remanded to five days of judicial custody in Tihar Jail following proceedings before an SEM in New Delhi. Proceedings arose after their earlier detention during protests at Jantar Mantar and their subsequent alleged violation of bonds requiring them to maintain peace. SEM Mahesh Kumar Meena issued notices under Section 130 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The judicial custody has since been extended by two more days i.e., until October 21. The SEM court rejected fresh sureties and found that they had deliberately breached their peace bonds. The defence presented new sureties, but these were rejected because of mismatched photographs on documents and Aadhaar cards, unsatisfactory answers, and doubts about whether the sureties could ensure the respondents appeared in court. Various aspects of order has justifiably been severely criticised since it came out, but a pertinent concern is also the expanding use of executive power under BNSS.An SEM is appointed by a state government under Section 15 of the BNSS. They are a government officer who carries out certain functions of preventive justice. Notably, they are not a judicial officer.The fact that no one should be a judge in their own cause is a basic principle of natural justice law. It is a basic rule of fairness that decisions should be made independently of those involved in the dispute. Under Section 135(3) of the BNSS, an SEM conducting preventive proceedings may detain a person pending execution of a bond or conclusion of the inquiry. However, the legal basis for SEM’s order remanding Das and Ranka is questionable.Although SEM have long exercised statutory powers in preventive proceedings, these powers do not automatically establish authority to order judicial custody. The detentions raise a broader question – should executive authorities exercise preventive powers that can result in the loss of personal liberty, or should they be exercised only by judicial magistrates who are part of the independent judiciary? This does not mean that SEMs are inherently biased or cannot lawfully exercise quasi-judicial functions. Instead, it calls for examining whether the existing safeguards adequately protect individual liberty. The criminal procedure distinguishes between judicial magistrates, who are part of the independent judiciary and exercise judicial powers, and executive magistrates, who operate within the executive administration and perform administrative and preventive functions. But SEMs’ executive affiliation cast doubts about potential conflicts of interest and safeguards against arbitrary decisions.Earlier, Section 21 of the CrPC authorised the appointment of executive magistrates as SEMs. Now, Section 15 of the BNSS goes further and expressly permits the state government to appoint police officers of the rank of Superintendent of Police or equivalent as SEMs. This change raises concerns about the concentration of policing and magisterial powers within the executive, particularly where the exercise of those powers may result in a loss of liberty. Article 50 directs the state to separate the judiciary from the executive, while Articles 14 and 21 protect against arbitrary state action and unlawful deprivation of personal liberty.The claim of their imprisonment being ‘judicial custody’ also needs closer examination as the two leaders were not remanded by a judicial magistrate during a criminal investigation or trial but by an executive officer’s order. They had entered an area under a Section 163 prohibitory order. But they did so without violence, a rally or a march. If preventive action can lead to imprisonment without a proven violation or proper judicial oversight, the issue is no longer of procedure alone.CJP leaders getting detained at Jantar Mantar. Photo: X/@abhijeet_dipke.To understand why this has been a norm for several decades now, it is necessary to delve into the historical context of these laws. Legal historian Cynthia Farid, while examining the development of constitutionalism and judicial independence in colonial India, in her article titled, ‘Perceiving law without colonialism: Revisiting courts and constitutionalism in South Asia’ has explained why the separation of judicial and executive powers at the local level remained unresolved even after independence. Farid argues that colonial India developed what she calls “imperial constitutionalism”. This is a system which separates these powers at the highest levels of government but fades at the local level. Moreover, she mentions that repeated attempts to separate judicial and executive functions in the districts failed not simply because of administrative delays, but because colonial interests resisted reforms that threatened the authority of a powerful, centralised district office. Colonial officials repeatedly discussed separating judicial and executive powers but rejected it, arguing that India required authoritarian governance. This arrangement is carried after independence now. Although post-colonial constitutions across South Asia recognised separation of powers but they treated it as a gradual goal. In this sense the SEM exercising quasi-judicial powers over protesters represents a continuation of this colonial legacy. Also read: Neha Bora Moves Delhi High Court Against Police Notice, Seeks Urgent HearingAbhinav Sekhri, a Delhi high court advocate, in his essay titled, ‘Article 22 – Calling Time on Preventive Detention’, says that the peace bonds which are being used against the two leaders are the very bonds which carries the colonial legacy that India retained after independence. Colonial authorities deliberately designed “breach of peace” bond proceedings to keep executive decisions largely beyond judicial. The scheme passed almost unchanged into post-independence criminal procedure law. In various judgments, courts have reiterated the issues surrounding powers of the SEM, but BNSS not only retained the SEM framework but has expanded it. The Bombay high court, in Pravin Vijaykumar Taware vs SEM Baramati (2009), stated: “There is always a clash of interest between a Police Officer In-Charge of an area and the Magistrate exercising the magisterial power within the same area. We had earlier also expressed a desire that the Government should consider delegating these powers either to Judicial Magistrates or at least to officials of the Revenue Department.” In 2017 the Supreme Court also in Aldanish Rein vs Union of India issued notices to chief secretaries of all 36 states and union territories on SEM power misuse. The court also sought implementation of the Bombay high court’s safeguards from Pravin Vijaykumar Taware. The Delhi high court in Aldanish Rein vs State of NCT of Delhi (2018) went so far as to suggest renaming SEMs as “Special Executive Officers” because the word “Magistrate” creates a false impression of judicial independence where none exists.The Madras high court judgment in the case of P.Sathish @ Sathish Kumar vs State Rep.(2023) quashed government orders giving police the powers of executive magistrates, including the power to impose bond sentences, as is relevant in the case of Das and Ranka. Justices N. Sathish Kumar and N. Anand Venkatesh were direct: “The entire process of investigation, prosecution and adjudication have now been arrogated by one branch of the executive i.e., the police. When the khaki and the judicial robes are blended and cast on one officer, the resultant picture is one of executive anarchy.” The bench also held that even executive magistrates cannot order imprisonment for bond breach, only a judicial magistrate can. Most recently, the Madras high court’s interim stay of the Tamil Nadu government order under Section 15 of the BNSS reinforces the need to examine the limits of executive magisterial powers as well. Ramsha Sartaj studied law at Aligarh Muslim University. She is pursuing a postgraduate diploma at the National Law School of India University. She is an editorial intern at The Wire.