An inquiry into preventive proceedings, police officers exercising magisterial powers, and the constitutional safeguards that liberty demands.
The question my husband asked me
The recent detention proceedings involving the leaders of the Cockroach Janta Party (CJP), Saurav Das and Ashutosh Ranka, brought an unfamiliar institution into public conversation: the Special Executive Magistrate, commonly referred to as an SEM. Their detention and the successive proceedings concerning their custody before SEMs in Delhi raised questions that extend beyond the circumstances of any individual protest. They invite us to examine the legal machinery through which the State seeks to prevent a possible breach of public peace.
What caught my attention was not merely the fact that these proceedings were taking place, but the institutional arrangement behind them. The orders were being passed by officers belonging to the police establishment who were also exercising powers as Special Executive Magistrates.
The thought of writing this article began with a simple question from my husband: “What is an SEM court?”
It was an ordinary question, but one worth pausing over. As advocates, we often become familiar with institutions through statutes, court orders and daily practice. We may forget that what appears routine to the legal fraternity can be entirely unfamiliar to someone outside it.
I believe that understanding SEMs is relevant not only for law students, interns and advocates, but also for ordinary citizens. Questions of public peace, protest, preventive action and personal liberty do not concern only those who are directly involved in litigation. They concern anyone who may encounter the exercise of State power.
This article is an attempt to understand that power, its statutory foundation, its place within India’s criminal justice system, and the constitutional questions that arise when a police officer is also empowered to exercise magisterial functions.
1. What exactly is a Special Executive Magistrate?
The starting point is the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC) with effect from 1 July 2024.
Section 15 of the BNSS deals with Special Executive Magistrates. It empowers the State Government to appoint Executive Magistrates or police officers not below the rank of Superintendent of Police, or equivalent, as Special Executive Magistrates for particular areas or functions, and to confer upon them such powers as may be exercised by Executive Magistrates under the Sanhita.
The corresponding provision under the old CrPC was Section 21.
An SEM is therefore not a separate tier of the ordinary criminal judiciary. Nor is an SEM necessarily a Judicial Magistrate. The designation refers to a statutory appointment that permits the officer to exercise specified executive magisterial powers.
The distinction matters because the word Magistrate is often understood by the public to mean a judicial officer who hears criminal cases and decides questions of guilt or innocence. An Executive Magistrate occupies a different position in the statutory scheme. The powers of an SEM depend upon the law under which the appointment is made and the powers actually conferred.
In Delhi, the institutional arrangement also involves Section 70 of the Delhi Police Act, 1978, under which specified police officers have been empowered to exercise certain Executive Magistrate powers. The legal position must therefore be examined by reading the relevant appointment notification and the statutory provisions together, rather than assuming that every SEM throughout India has identical powers.
The practical concern is especially significant where a police officer exercises preventive powers over a person whose liberty is at stake.
2. Why does the law permit preventive proceedings?
The criminal justice system ordinarily responds to an offence that has allegedly been committed. The police investigate, the prosecution presents its case, and the competent court determines the issues in accordance with law.
Preventive proceedings operate on a different premise. Their object is to avert an anticipated disturbance before it occurs.
Section 126 of the BNSS, corresponding to Section 107 of the CrPC, permits an Executive Magistrate who receives information that a person is likely to commit a breach of peace, disturb public tranquillity, or commit a wrongful act likely to occasion such disturbance, to require that person to show cause why they should not execute a bond or bail bond for keeping the peace.
The statutory maximum period for the bond under Section 126 is one year.
The provision is not intended to punish a person for an offence already committed. Its purpose is preventive. A person may be required to explain why a peace bond should not be imposed even though the proceeding is not a conventional criminal trial for a completed offence.
Other provisions in the same chapter address different preventive situations. For example, Sections 127 to 129 of the BNSS deal with specified categories of persons from whom security for good behaviour may be required. Section 130 provides for an order to be made in writing, setting out the substance of the information received, the amount and duration of the proposed security, and other prescribed particulars.
Section 132 deals with the procedure where a person against whom proceedings have been initiated is present in court. Section 135 provides for an inquiry into the truth of the information, subject to the statutory requirements and exceptions. The later provisions deal with the resulting order, security, discharge and consequences of failing to furnish security or breaching a bond.
The relevant provisions must be read as a connected statutory scheme, not as isolated powers to detain.
The distinction between prevention and punishment is fundamental. A preventive proceeding cannot become a convenient substitute for an ordinary criminal prosecution, nor can the mere possibility of future disorder automatically justify every restriction on liberty.
3. A brief guide to the different criminal courts under the BNSS
To understand what is unusual about SEMs, it is useful to understand the broader structure of criminal courts.
Section 6 of the BNSS identifies the principal classes of criminal courts, apart from High Courts and courts constituted under other laws. These include Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class, and Executive Magistrates.
The important provisions concerning their constitution and functions include Sections 8 to 15 of the BNSS.
Courts of Session: Section 8 deals with the Court of Session. Sessions Courts try offences allocated to their jurisdiction under the BNSS and other applicable laws. They also exercise appellate and other jurisdiction as provided by law.
Judicial Magistrates: Sections 9 and 10 address the establishment of Courts of Judicial Magistrates and the offices of Chief Judicial Magistrates and related officers. Judicial Magistrates exercise the judicial functions assigned to them by statute, including appropriate criminal proceedings, remand and other matters within their jurisdiction.
Special Judicial Magistrates: Section 11 provides for the appointment of Special Judicial Magistrates in the circumstances prescribed by law. The judicial character of their functions distinguishes them from Executive Magistrates.
Executive Magistrates: Section 14 provides for the appointment of Executive Magistrates, including the District Magistrate and Sub-divisional Magistrates within the statutory framework. Their functions include specified preventive and public-order responsibilities.
Special Executive Magistrates: Section 15 provides for the appointment of SEMs and the conferral of specified Executive Magistrate powers. It expressly includes police officers of the prescribed seniority.
The distinction between Judicial and Executive Magistrates is not merely one of nomenclature. It reflects the statutory allocation of functions within the criminal justice system.
The separation of Judicial Magistrates from Executive Magistrates was a significant feature of the CrPC, 1973. The BNSS retains that distinction. It does not, however, eliminate the statutory mechanism by which police officers may be appointed as Special Executive Magistrates.
That is where the central question arises: how should the law preserve independent application of mind when an officer from the police establishment exercises powers that may lead to a person’s detention?
4. What happens when a peace proceeding results in custody?
A preventive proceeding can have consequences far more serious than its terminology might suggest.
A person may be required to execute a bond, furnish sureties, attend repeated hearings or remain in custody when the statutory conditions for release are not satisfied. The consequences may affect employment, family responsibilities, reputation and the ability to participate in public life.
Sections 126 to 143 of the BNSS must therefore be read with care. The provisions prescribe the procedure for preventive security proceedings and deal with the consequences of the failure to furnish security or of a breach of the bond. The precise legal basis for any detention order must be identified from the provision invoked and the facts recorded by the authority.
It is particularly important not to treat a preventive proceeding as if the individual has already been convicted of a criminal offence. The purpose of the proceeding is to prevent a specified anticipated disturbance, not to impose punishment for an unproved accusation.
Nor does the preventive character of the proceeding make constitutional safeguards less important. If anything, the fact that State action may be based on an apprehension of future conduct makes reasoned scrutiny essential.
A lawful order should disclose the material and reasoning that justify the action taken. The person concerned must have a meaningful opportunity to understand the case, respond to it and seek legal assistance. The authority must consider the individual’s circumstances rather than rely mechanically on the police report or a pre-printed form.
The question is not whether public peace matters. It unquestionably does. The question is whether a restriction on personal liberty has been justified through a fair and lawful procedure.
5. The constitutional concern: when the police establishment exercises magisterial powers
The concern is not that police officers lack the capacity to understand law or that every police officer appointed as an SEM will necessarily act unfairly. The issue is institutional.
Preventive proceedings are frequently initiated on information supplied by the police. The police may apprehend a disturbance, prepare the report, bring the person before the SEM and seek action to prevent the anticipated breach of peace.
Where the officer exercising magisterial powers also belongs to the police hierarchy, a legitimate question arises about the independence of the decision-making process.
Can the person who is required to assess the police’s apprehension of future disorder do so with sufficient institutional distance when that person is part of the same police establishment?
The constitutional principle of separation of powers does not mean that every executive decision must be taken by a judge. Executive Magistrates have a recognised place in Indian law. But the existence of executive magisterial powers does not answer the separate question of whether a particular statutory arrangement, appointment or exercise of power is constitutionally permissible.
Article 14 requires State action to be non-arbitrary. Article 21 requires deprivation of personal liberty to follow a procedure established by law that is fair, just and reasonable. Article 22 protects persons who are arrested, including the right to be informed of the grounds of arrest and the right to consult and be defended by a legal practitioner of their choice, subject to the constitutional text.
Article 50, a Directive Principle of State Policy, calls for separation of the judiciary from the executive in the public services of the State.
These provisions do not automatically establish that every appointment of a police officer as an SEM is unconstitutional. They do, however, provide the framework within which the appointment, the statutory powers and the actual proceedings must be examined.
The real concern is whether preventive power is exercised with sufficient independence, procedural fairness and accountability when the result can be a deprivation of liberty.
6. Aldanish Rein: the Delhi High Court’s warning about SEM proceedings
One of the most relevant decisions on the functioning of SEMs in Delhi is Aldanish Rein v. State of NCT of Delhi & Anr., W.P. (Crl.) 2039/2018, decided on 1 November 2018, reported as AIRONLINE 2018 DEL 1967.
The Delhi High Court examined the manner in which preventive powers under Sections 107 and 151 of the CrPC were being exercised. The case arose after a person had been detained and remanded to custody in proceedings before an SEM. The Court considered wider concerns regarding the procedure followed, the basis for requiring sureties, the length of custody and the availability of legal aid.
The figures before the Court were significant. According to the material placed by the Delhi State Legal Services Authority, 23,012 persons had been arrested in connection with 14,529 preventive proceedings during the period from 1 July 2017 to 30 June 2018. Of those persons, 6,944 had been sent to judicial custody.
These figures highlighted the practical consequences of proceedings often described as preventive rather than punitive.
The Court emphasised that the exercise of statutory powers affecting liberty must comply with Articles 21 and 22 of the Constitution. It expressed concern about the use of cyclostyled forms, inadequate application of mind, the fixing of surety amounts without an individualised basis and the absence of effective legal representation.
It also questioned the appropriateness of calling police officers exercising these powers “Magistrates”, suggesting that the Lieutenant Governor consider the designation “Special Executive Officers” to avoid confusion with Judicial Magistrates.
The judgment is important for two reasons.
First, it makes clear that the preventive character of a proceeding does not diminish the constitutional rights of the person concerned. Secondly, it demonstrates that safeguards must operate in practice, rather than exist only in statutory language.
The decision did not declare the entire institution of SEMs unconstitutional. It addressed serious defects in the exercise of preventive powers and prescribed safeguards. That distinction must be kept in mind when relying on the judgment.
7. P. Sathish: the Madras High Court’s examination of police officers acting as Executive Magistrates
A more direct constitutional examination of the institutional arrangement arose before the Madras High Court in P. Sathish @ Sathish Kumar v. State, decided on 13 March 2023, in a batch of criminal revision petitions, including Crl. R.C. No. 137 of 2018.
The proceedings concerned Tamil Nadu Government notifications that empowered Deputy Commissioners of Police to exercise specified Executive Magistrate powers under Sections 107 to 110 and 122 of the CrPC.
The matter had been referred to a Division Bench after the issue was considered by a Single Judge in Devi v. Executive Magistrate-cum-Deputy Commissioner of Police. The Division Bench examined the statutory framework, the notifications and the constitutional concerns arising from the exercise of magisterial powers by police officials.
In its decision dated 13 March 2023, the Division Bench quashed the impugned Government Orders insofar as they empowered the Deputy Commissioners of Police to exercise the relevant Executive Magistrate powers. The Court considered the arrangement inconsistent with the principle of separation of powers and expressed concern about the concentration of investigation, prosecution and adjudication within the police establishment.
The judgment’s reasoning was particularly significant because the concern was not confined to the conduct of one officer in one case. It addressed the structure through which powers had been conferred.
The Court warned against an arrangement in which a police officer’s institutional role could undermine the independent assessment expected of a magistrate. The possibility that the same branch of the executive could initiate the process, present the allegations and determine the consequences for the person concerned raised a serious issue of fairness.
However, the decision must be read in the context of the Tamil Nadu statutory framework and the particular notifications before the Court. It does not automatically invalidate every appointment of an SEM in every State or Union Territory.
The distinction between the legal arrangements in different jurisdictions is important. A constitutional argument must examine the relevant enactment, the appointment notification, the precise powers conferred and the nature of the proceedings, rather than assume that a judgment concerning one State’s notifications resolves every possible challenge elsewhere.
8. The Supreme Court decision that cannot be ignored
Any serious discussion of this subject must also consider State of Maharashtra v. Mohammed Salim Khan, (1990) 3 SCC 340.
In that case, the Supreme Court examined the powers of police officials appointed as Special Executive Magistrates in Greater Bombay under the CrPC. The issue before the Court was whether an SEM could exercise powers under Section 107 when the officer had not been separately and specifically conferred those particular powers in the manner contended for by the respondents.
The Supreme Court held that the powers conferred on Executive Magistrates could be exercised by SEMs within the statutory scheme, and that a separate notification specifically conferring the Section 107 power was not necessary in the circumstances of the case.
This decision is important because it recognises that an SEM may exercise substantive Executive Magistrate powers under the CrPC by virtue of the statutory appointment and the scheme of the Code.
But its scope must not be overstated.
The central issue in Mohammed Salim Khan was the interpretation of the provisions governing the powers of SEMs. The Court was not called upon to decide the broader constitutional question later examined by the Madras High Court concerning the particular Tamil Nadu notifications and the separation of powers.
It would therefore be inaccurate to treat Mohammed Salim Khan as a conclusive Supreme Court ruling that every possible arrangement empowering police officers to act as SEMs is constitutionally valid, irrespective of the statute, the notification or the manner in which powers are exercised.
At the same time, it would be equally inaccurate to suggest that the statutory powers of SEMs have no judicial recognition. The Supreme Court decision remains a relevant authority on the statutory interpretation of the old CrPC provisions, subject to the differences in the present BNSS framework and the facts of any subsequent case.
The proper approach is to read the Supreme Court decision alongside the later High Court decisions, identifying the specific legal issue decided by each court.
9. What does the BNSS change?
The BNSS came into force on 1 July 2024. Section 15 expressly provides for the appointment of police officers not below the rank of Superintendent of Police, or equivalent, as Special Executive Magistrates.
This is a significant feature of the present statutory text. Unlike Section 21 of the CrPC, which referred to the appointment of Executive Magistrates as SEMs, Section 15 expressly mentions police officers of the prescribed rank.
That express inclusion makes the constitutional question more pressing, not less.
A challenge to a particular SEM’s order is different from a challenge to the legality of the appointment or to the constitutional validity of a statutory provision. The former may concern lack of jurisdiction, absence of relevant material, denial of a hearing, arbitrary detention or failure to comply with procedural safeguards. The latter may require examination of the legislative framework itself, including its compatibility with Articles 14 and 21 and the constitutional principles governing adjudicatory independence.
The BNSS’s express language must be considered in any such challenge. It would not be sufficient merely to reproduce the reasoning of the Madras High Court without examining how the relevant provisions and appointment notifications differ.
Equally, the mere fact that Parliament has expressly authorised a category of appointment does not, by itself, answer every constitutional objection that may arise concerning its operation.
The question remains whether the statutory scheme, its implementation and the specific exercise of powers preserve the minimum guarantees of fairness and liberty required by the Constitution.
As of October 2026, I have not identified a Supreme Court decision conclusively determining the constitutionality of Section 15 of the BNSS on the specific ground that police officers appointed as SEMs exercise preventive adjudicatory functions. That is a carefully limited statement about the issue being discussed here, not a claim that no court has ever considered the legality of SEM appointments or the exercise of their powers.
10. The unanswered constitutional question
The central question is not whether the State should have the power to prevent a breach of peace. A legal system must be able to respond to genuine threats to public order.
The more difficult question is how that power should be structured and supervised when its exercise can result in detention.
Three distinct questions deserve consideration.
First, the question of institutional independence. If a police officer’s report initiates preventive proceedings, what safeguards ensure that the officer exercising magisterial powers independently assesses the evidence and the necessity of the proposed restriction? The law should not permit the police’s apprehension to become a substitute for the authority’s own reasoned satisfaction.
Secondly, the question of procedural fairness. What standards govern the requirement to furnish security, the rejection of sureties, the decision to order custody and the period for which custody may continue? How is an individual ensured access to legal representation, a meaningful opportunity to respond and a reasoned order in language that they understand?
Thirdly, the question of constitutional validity. Does the statutory arrangement adequately preserve the distinction between executive policing and the independent assessment expected of an authority whose decision may deprive a person of liberty? Where a particular appointment or exercise of power is challenged, how should Articles 14, 21 and 22, together with the principle reflected in Article 50, inform the court’s analysis?
These questions should not be collapsed into one another. An SEM order may be unlawful even if the enabling provision is constitutionally valid. Conversely, a challenge to the constitutional validity of a statutory arrangement raises issues that cannot always be resolved merely by demonstrating procedural irregularities in one case.
The answer requires a careful examination of the statutory text, the relevant notifications, the judicial precedents and the safeguards available in practice.
It also requires attention to the difference between a power to prevent disorder and an unrestricted discretion to curtail liberty.
11. Why the distinction matters to an ordinary citizen
Imagine a person who is brought before an SEM following a police report alleging a likelihood of public disturbance. The person may not be familiar with the BNSS, may not understand the legal consequences of a peace bond, and may not have the resources to arrange sureties at short notice.
For that person, the distinction between a preventive proceeding and a criminal prosecution may have little practical meaning if the result is continued detention.
The constitutional guarantee of liberty must therefore be meaningful at the point when the power is exercised. It cannot be enough to say that a person may challenge an order later if the procedure leading to that order was not fair in the first place.
The legal system must ensure that the person understands the allegations, receives a genuine opportunity to respond, has access to legal assistance and is not detained merely because a prescribed form has been completed or a surety is considered inconvenient.
Preventive action may be necessary in an appropriate case. But the necessity must be demonstrated through lawful and reasoned decision-making, not presumed from the existence of a police report.
Public peace and personal liberty are not necessarily competing constitutional values. A fair and accountable process protects both. It enables the State to act against a genuine threat while ensuring that preventive powers do not become an instrument of arbitrary control.
Conclusion: a question that deserves a clearer answer
My husband’s simple question, “What is an SEM court?”, led me to a broader institutional question.
The answer is not merely that an SEM is an officer empowered to exercise certain Executive Magistrate functions. The more important issue is what those powers mean for the person who stands before the authority, and what safeguards the Constitution requires when the exercise of those powers may lead to detention.
The BNSS retains Executive Magistrates within the criminal justice framework and expressly provides for police officers of the prescribed rank to be appointed as SEMs. The Supreme Court’s decision in State of Maharashtra v. Mohammed Salim Khan recognises the statutory powers of SEMs in the context of the CrPC. The Delhi High Court’s decision in Aldanish Rein demonstrates the serious procedural concerns that can arise in practice. The Madras High Court’s decision in P. Sathish @ Sathish Kumar shows that the legality of particular arrangements empowering police officials to exercise magisterial powers can raise substantial separation-of-powers concerns.
These authorities do not all decide the same question, and they should not be presented as if they do.
What remains important is the need for clarity about the institutional safeguards governing police officers who exercise preventive magisterial powers, the independent scrutiny of their decisions, and the constitutional limits on the resulting deprivation of liberty.
A power intended to prevent disorder must not be allowed to become a substitute for fair adjudication. The authority to act in the interest of public peace must always remain subject to the rule of law.
Perhaps the most useful outcome of the recent attention surrounding SEM proceedings would be a wider public understanding of this institution, accompanied by a serious legal and constitutional examination of how it operates.
For the question is not simply who may be appointed a Special Executive Magistrate. It is whether the law provides sufficient safeguards to ensure that, when the State acts to preserve public peace, the citizen’s liberty remains protected by the Constitution.