The preventive detention of Cockroach Janta Party leaders Saurav Das and Ashutosh Ranka raises troubling questions about police powers, executive magistrates, proportionality and the constitutional right to dissent. OSWALD PEREIRA reports
“You were the judge, the jury, all in one. You found me guilty and now my term’s begun.” Jim Reeves’s song Guilty captures, with unsettling simplicity, the democratic dilemma posed by the preventive detention of Cockroach Janta Party (CJP) leaders Saurav Das and Ashutosh Ranka.
The two leaders have been released after spending seven days in custody at Tihar Jail. But release does not necessarily end the ordeal. The cases against them continue, and the prospect of arrest hangs over their participation in future protests. The question is not whether the police have a duty to maintain public order. They do. It is whether preventive powers are being used to prevent violence or to intimidate those who challenge the government.
The distinction is fundamental to democracy.
When the Police Wear Two Hats
The circumstances of the leaders’ detention raise an institutional question that deserves serious public scrutiny. They were proceeded against under Sections 126 and 170 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), provisions relating to security for keeping the peace and preventive action to avert cognisable offences. The police also registered FIRs invoking provisions of the Bharatiya Nyaya Sanhita (BNS).
The leaders were produced before a Special Executive Magistrate, an authority distinct from an ordinary judicial magistrate. In Delhi, Special Executive Magistrates may be police officers, including officers of Assistant Commissioner of Police rank, vested with executive magisterial powers under the law.
This arrangement creates an obvious concern. The police initiate preventive action, present their case before an executive magistrate who is also a police officer, and then implement the resulting detention. The same institution is therefore involved in the initiation, assessment and enforcement of coercive action against the citizen.
That does not, by itself, establish that the proceedings were unlawful or that the magistrate acted improperly. Executive magistrates have statutory functions, and preventive proceedings are not criminal trials. Nor is every preventive detention equivalent to a conviction.
But the constitutional question remains: how independent and effective is the scrutiny when the authority deciding whether preventive custody is necessary belongs to the same police establishment seeking that custody?
The appearance of institutional impartiality matters, particularly when political dissent is involved. A citizen facing the coercive power of the state must have confidence that the grounds for detention will be examined objectively, not merely accepted because the police have asserted them.
Prevention Must Not Become Punishment
Preventive action is intended to avert a threatened breach of peace, not punish people for conduct authorities dislike. Its justification must rest on lawful grounds, relevant facts and a demonstrable need for intervention.
The distinction becomes especially important when the alleged conduct involves entering a restricted area, climbing locked gates or raising the national flag during a protest. If the police establish that protesters violated a lawful restriction, that allegation must be examined under the applicable law. Carrying the Tricolour does not place anyone above the law; equally, carrying it cannot, by itself, justify detention.
The question of proportionality is unavoidable. Was seven days in custody necessary to prevent a breach of peace? Could the stated objective have been achieved through less restrictive measures? What specific evidence suggested that releasing the two leaders would result in violence or another cognisable offence?
These are questions, not predetermined verdicts. Their answers must emerge from the record and the applicable law. But the more intrusive the state’s action, the stronger the justification it must provide.
Articles 19(1)(a) and 19(1)(b) of the Constitution protect freedom of speech and peaceful assembly, subject to constitutionally permitted reasonable restrictions. These rights do not authorise trespass or violence. They do, however, prevent public order from becoming a convenient formula for suppressing peaceful criticism.
In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Supreme Court recognised the importance of balancing the right to protest with the rights of residents and the requirements of public order. The constitutional answer is neither unrestricted protest everywhere nor unrestricted police discretion. It is a fair, proportionate balance.
The Crime Branch: Why Escalate the Case?
Another development calls for explanation. The cases involving Das and Ranka have reportedly been transferred to the Delhi Police Crime Branch.
The Crime Branch investigates matters requiring specialised investigation, including serious offences, complex criminal networks and cases with wider ramifications. A transfer does not establish that an allegation is true, nor does it necessarily mean that the case is more serious than it first appeared. Police authorities may have reasons for transferring an investigation, and those reasons should be assessed on their merits.
Yet the decision invites a legitimate question: what specific investigative complexity or evidence warrants the Crime Branch’s intervention in a case arising from a protest and allegations including trespass or obstruction?
If the transfer is supported by concrete investigative needs, the police should be able to explain them. If the case has been escalated without a clear evidentiary basis, the public is entitled to ask whether the machinery of criminal investigation is being deployed disproportionately against political opponents.
The transfer alone proves neither persecution nor wrongdoing. But transparency is essential when the consequences extend beyond the individuals concerned and may influence the willingness of others to protest.
Release Is Not the End of the Story
The seven days spent in Tihar cannot be erased by a release order. Nor does release automatically settle the legality of the earlier detention or dispose of the FIRs.
The greater concern is the possible chilling effect on future demonstrations. If activists believe that taking part in a protest could lead to preventive detention, prolonged custody and an expanded criminal investigation, some may choose silence over participation.
That is how intimidation can work without an explicit ban on dissent. The law may formally preserve the right to protest while the practical risks of exercising it become sufficiently severe to discourage citizens from doing so.
Critics describe this as the logic of a police state. That is a political judgment, not a conclusion established merely by the detention of two leaders. But it identifies a danger that democratic institutions must take seriously: preventive powers can undermine constitutional freedoms when apprehensions about future conduct substitute for specific evidence and proportionate action.
Jantar Mantar’s status as a protest venue, the restrictions imposed on demonstrations and the availability of alternative sites also matter. A government can regulate the location and conduct of protests within the law. It cannot treat the inconvenience of being challenged as proof that the challenge itself threatens public order.
Guilt Must be Proved, Not Presumed
The police must investigate credible allegations. Executive magistrates must exercise their statutory powers responsibly. Courts must scrutinise the legality of coercive action. Protesters, too, must respect lawful restrictions and remain accountable for their conduct.
But these responsibilities are not interchangeable. The police cannot convert an apprehension into proof, and the executive authority exercising preventive powers must not become a substitute for independent judicial scrutiny.
The central issue is not whether Das and Ranka are beyond the law. No citizen is. It is whether the law is being applied with restraint, impartiality and proportionality—and whether those who question the government can do so without facing consequences disproportionate to their alleged conduct.
Jim Reeves sang of a person found guilty by a judge and jury rolled into one. In a democracy, the metaphor should serve as a warning, not a description of how justice operates.
The state may restrain a citizen when the law demonstrably requires it. It must never make the citizen pay for a crime that has not been proved, or for the democratic act of questioning those in power.
Oswald Pereira, a senior journalist, has written ten books, including The Vijay Revolution: People Power & the Politics of Hope, Beyond Autobiography of a Yogi, The Newsroom Mafia, Chaddi Buddies, The Krishna-Christ Connexion, How to Create Miracles in Our Daily Life and Crime Patrol: The Most Thrilling Stories. Oswald is a disciple of Paramhansa Yogananda and practises Kriya Yoga.
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