Context: The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, provides preventive legal mechanisms to maintain public order and prevent breaches of peace. Recent police action against protestors in Delhi has brought attention to security proceedings and peace bonds, raising questions about the balance between preventive policing and fundamental rights.
Key Highlights
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- Meaning of a bond: Section 2(1) of the BNSS defines a bond as an undertaking to comply with specified conditions. A bail bond generally involves a surety who guarantees compliance with those conditions.
- Section 126 – Security for keeping peace: An Executive Magistrate may initiate proceedings when information suggests that a person is likely to breach the peace or disturb public tranquillity. The person may be required to explain why they should not execute a bond for maintaining peace for a period of up to one year.
- Preventive, not punitive: These proceedings aim to prevent a possible disturbance rather than punish a person for a completed offence. Police may also exercise preventive arrest powers under Section 170 where statutory conditions are met.
- Mandatory procedure: Under Section 130, the Magistrate must issue a written order explaining the substance of the information, the bond amount, its duration and the sureties required. Section 135 provides for an inquiry into the truth of the information.
- Final order and safeguards: Under Section 136, a bond can be ordered after the inquiry establishes its necessity. The amount must reflect the circumstances and cannot be excessive. If the allegations are not established, Section 137 provides for discharge of the person.
Significance
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- Public order: Enables authorities to intervene before anticipated violence or disturbances occur.
- Preventive governance: Offers a legal mechanism to address credible threats without waiting for an offence to take place.
- Rule of law: Prescribes procedures and safeguards intended to prevent arbitrary action by police and executive authorities.
Concerns and Challenges
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- Potential misuse: Broad interpretations of a likely breach of peace may result in unnecessary detention or pressure on peaceful protestors.
- Freedom of assembly: Excessive restrictions can undermine Article 19(1)(b), which protects the right to assemble peacefully and without arms.
- Procedural fairness: Mechanical notices, inadequate evidence and prolonged proceedings can weaken individual liberty.
Way Forward
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- Require objective evidence and reasoned orders before initiating proceedings.
- Ensure timely inquiries, access to legal assistance and meaningful opportunities to respond.
- Apply proportionality and judicial scrutiny to preventive action.
- Distinguish peaceful dissent from credible threats to public order.
Conclusion
Peace bonds are legitimate instruments of preventive justice, but their effectiveness depends on impartial implementation. Maintaining public order must remain consistent with constitutional freedoms and due process.
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