‘Impinges on freedom’: Former Delhi HC Justice S Muralidhar on CJP leaders’ custody

Ashutosh Ranka and Saurav Das were detained after staging a symbolic protest with the national flag at Central Delhi’s Jantar Mantar. The protest took place on October 13, one day after the site was denotified as a protest location. Their action was connected to their opposition to Chief Election Commissioner Gyanesh Kumar.

Earlier, police had detained them at Delhi airport on October 10, before their planned protest against Kumar. They then signed peace bonds. These bonds contained an assurance that they would not breach the peace. The bonds were issued under a preventive procedure involving an executive magistrate.

After the Jantar Mantar protest, an executive magistrate decided that Ranka and Das had breached their bonds. They were sent to Tihar Jail. On Monday, the magistrate extended their judicial custody for two more days, a step Justice S Muralidhar criticised as legally problematic.

An executive magistrate performs a preventive peacekeeping function. The officer may act when police believe certain people could cause a breach of peace. The person can then be required to sign a bond promising to avoid such conduct. The purpose is prevention, not punishment.

The article says executive magistrates are usually police officers appointed by state governments. A senior officer, such as a deputy commissioner of police, may receive a police complaint called a kalandara and decide whether the apprehension is reasonable. In the described system, the police can therefore begin the process and present the matter to another police officer.

A judicial magistrate or judge belongs to the judiciary and handles legal proceedings under ordinary criminal procedure. That role is expected to be independent from the police complaint. Justice Muralidhar argued that police officers should be called executive officers, not magistrates, because they are not part of the judiciary.

Under the limits described in Justice S Muralidhar’s 2018 judgment, executive magistrates could send suspects to custody for no more than seven days. This was a firm limit on the temporary custody available through the preventive procedure. It mattered because the process does not begin with a regular criminal case.

Muralidhar also stated that police officers serving as executive magistrates could not extend custody simply because they needed more time to verify paperwork. The judgment therefore rejected technical reasons as a basis for prolonging a person’s detention. It treated the power as limited and preventive.

The article says this limit was ignored in the case of Ashutosh Ranka and Saurav Das. Their executive magistrate extended judicial custody by two more days. Muralidhar told Scroll that this showed something was “radically wrong” with the provisions used against them, and he urged the Delhi High Court to strike the provision down.

The central danger is a loss of impartial decision-making. Police officers may write the complaint, assess whether the alleged threat is credible, and order or extend custody through the executive-magistrate process. That concentrates several powers in one branch of the executive.

The article gives the example of a kalandara, or complaint note, written by a sub-inspector or constable. It is sent to a senior police officer who also serves as executive magistrate. Because the police are themselves the complainant, Muralidhar said senior officers cannot be expected to be fully impartial or objective in deciding the complaint.

This arrangement can bypass the standard criminal process. There may be no first information report, and the authorities may send someone to custody based on an apprehension rather than a proved crime. The result is weaker protection against arbitrary detention. Muralidhar said the Delhi High Court should examine and strike down the provision.

Preventive custody is based on apprehension. Authorities believe a person might breach the peace or commit an offence, and they act before an actual crime is established. The article describes the bond as an assurance that the person will not engage in such conduct. This makes the function preventive rather than punitive.

Punishment addresses conduct that has already occurred. Under ordinary criminal procedure, the police would file a first information report, investigate the alleged offence, and eventually establish that a crime was committed. A court would then deal with the criminal case. The preventive process does not begin from that same finding.

Justice Muralidhar stressed that a mere apprehension should not automatically lead to judicial custody. He said the purpose of preventive custody is only to address a possible breach of peace. Using it as a substitute for proving an actual crime risks turning a limited peacekeeping measure into punishment without the usual criminal safeguards.

Justice Muralidhar argued that police should use a first information report when they believe an actual crime has been committed. An FIR would begin the standard criminal procedure. That process is designed to examine an alleged offence instead of treating a possible future breach as enough for continuing custody.

The article contrasts this with the preventive procedure. It begins with the police giving a complaint to themselves through a kalandara. A senior police officer then considers whether the apprehension is reasonable. There is no FIR, and the same executive structure can act as complainant and decision-maker.

Using an FIR would require the authorities to pursue and eventually prove that a crime occurred. It would also avoid treating preventive custody as a substitute for criminal proceedings. Muralidhar said the existing approach bypassed standard procedure and urged the Delhi High Court to strike down the provision invoked against Ranka and Das.

Preventive-policing powers are controversial because they allow action before an actual crime is established. The article says these powers have colonial roots and were extensively used by the British from the 19th century. In a constitutional democracy, that history clashes with Articles 21 and 22, which protect life, personal liberty, and against arbitrary arrest.

The procedure can also place police officers in several roles. They may make the complaint, assess the alleged threat, and order custody through an executive magistrate. Lawyers and activists have long complained that this arrangement allows police to appropriate powers associated with the judiciary. Justice Muralidhar said it undermines impartiality.

The powers nevertheless remained in the statute book after independence and continued to be used across the country for eight decades. Their persistence gives them what Muralidhar called a “robust afterlife.” The case of Ranka and Das has renewed pressure for courts to examine whether the provision is compatible with constitutional liberty.