The preventive power at the centre of the case

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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