CJP leaders Saurav Das and Ashutosh Ranka remain in custody, but no criminal court has remanded them. They are instead held under a law meant to prevent a breach of peace that police say they may cause.

On Monday, a Special Executive Magistrate at Mandir Marg police station extended their judicial custody, which was due to end the same day, until October 21. The order said the police had indicated a risk to public tranquility. It also rejected as inadequate the fresh sureties – people who vouch that the accused will keep to the conditions of their bond – offered by their lawyers.

When the two were taken back to Tihar, Das stated through the police van’s grill, “We are in an emergency. There is no justice. This is a police court and just look at the grounds they have taken.”

The detention came under Sections 126 and 170 of the BNSS and is separate from the FIR and Crime Branch probe against them over the hoisting of the Tricolour at the restricted area in Jantar Mantar. But lawyers argue legal provisions are being misused to hold them and the CJP has said they have approached the Delhi High Court for an urgent night hearing.

These developments are significant because now there are two separate legal proceedings involving the two CJP leaders. That distinction is at the heart of the dispute, in a case which raises larger questions.

What is an SEM proceeding?

CJP lawyer Abhik Chimni said the defence’s objection is that the preventive proceeding is being used to keep the two in custody on the basis of an anticipated future protest rather than a specific act of violence or disturbance.

“This is an issue of preventive custody,” Chimni said. “There is no FIR against my clients forming the basis of this custody.”

“The state has said there is an imminent threat to public order and an imminent threat to public tranquillity,” Chimni said. “But there is not one statement which shows what the actual apprehension is. The order only says that the state has an apprehension.”

Preventive proceedings are different from an ordinary criminal prosecution.

Criminal lawyer Sahil Yadav, who practises in Delhi, explained that the purpose of an SEM proceeding is essentially to prevent a person from causing another disturbance, with the bond acting as a financial deterrent.

“It’s unheard of that for a small thing or for public tranquility you put someone in custody. You take a bond and you get the bond forfeited,” Yadav said.

“Every time you create a nuisance, you deposit a lakh with me. So the person gets deterred – that if I create nuisance again my one lakh rupees would be taken.”

In such proceedings, a person can be required to furnish a bond and a surety - someone to make sure the person complies with the conditions imposed.

“Surety can be........

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