From King Edward III To Neha Bora, A 1361 Law Lives On In 'Peace Bonds': NDTV Explains

In 1361, Delhi was the seat of Sultan Feroz Shah Tughlaq. The Mughals were a century and a half in the future, and the British Raj was five centuries away. That year, England under King Edward III was emerging from the first phase of the Hundred Years' War against France. Its Parliament grew anxious about soldiers drifting home, labelling them potential "pillers and robbers". It passed a law assigning to every county or province "one lord, and with him three or four of the most worthy", with the power to demand guarantees of good behaviour.

It was an age of harsh laws. That same Parliament allowed labourers who ran away from their employers to be branded on the forehead with the letter 'F', for "falsity".

The Tughlaqs' city on the Yamuna is now a ruin, Feroz Shah Kotla, best known today for the cricket ground that carried its name.

The 'F' branding law is long gone.

The peace bond law of 1361, however, entered India with the British some centuries on. It still survives, as does its idea, in Delhi.

This month, the law held two young Cockroach Janta Party (CJP) leaders in jail for a week for allegedly breaking a promise to "keep the peace". Student leader Neha Bora, who has refused to make that promise, is asking the question at the heart of it all: "Whose peace am I being asked to keep?"

Delhi and other places have been seeing a series of protests, starting in July over paper leaks and currently over alleged electoral fraud. Photo: NDTV

Two Cases, One Question

The CJP's Abhijeet Dipke, Saurav Das and Ashutosh Ranka were detained at Delhi airport on October 10, ahead of a planned protest demanding the resignation of Chief Election Commissioner Gyanesh Kumar. In the early hours of October 11, a Special Executive Magistrate (SEM), a police officer in Delhi, released them after they signed peace bonds valid for a year.

Two days later, amid a wider police crackdown, Das and Ranka scaled locked gates to reach the protest area beside Jantar Mantar, the 18th-century observatory. The area had been denotified as a protest venue. They have said they only waved the national flag, but committed no offence. An SEM sent them to judicial custody for five days over an alleged breach of the bond. On October 19, another SEM extended it by two days. The Delhi High Court said they could go to the local judicial court. That evening, the SEM released them after accepting their sureties. The breach proceedings continue.

All India Students' Association (AISA) president Neha Bora faces the same process differently.

AISA's Neha Bora has been one of the key leaders of recent protests by groups led by the Congress, CJP and others.
Photo: NDTV

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Detained at Mandi House on October 16, Bora was asked to sign a peace bond but challenged the notice in court, saying that the alleged disregard of prohibitory orders did not mention specifics. The court dismissed the petition but said Bora was entitled to the material behind the notice. Bora has so far resisted signing the bond.

Both cases raise the same question: who decides that a person is likely to disturb the peace, and on what basis?

The Name Is Bond

A peace bond is a written promise to stay out of trouble for a fixed period, often backed by money or by guarantors who agree to pay if it is broken.

"In its current state, the bond is a blanket form with standard fill-in-the-blanks, which leaves the idea rather vague," said Arjun Sheoran, a lawyer at the Punjab and Haryana High Court.

Under Section 126 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), an executive magistrate who receives information that a person is "likely to commit a breach of the peace or disturb the public tranquillity" can issue a show-cause notice, like the one Bora challenged, asking why they should not sign such a bond for up to a year. "Habitual offenders" can be bound for up to three years. No crime needs to have been committed, only a likelihood, as the magistrate sees it.

A person who cannot arrange the bond, or is found to have broken it, can be jailed for the rest of its term. Sheoran said the system is also flawed because an "executive" magistrate, sometimes a police officer, makes these decisions instead of a judicial officer.

How The Power Changed Hands

The 1361 idea travelled with the British Empire into colonial criminal codes, India's among them. The Raj used it against nationalists. In 1916, after Bal Gangadhar Tilak gave speeches on Home Rule, the government invoked “security for good behaviour”. The District Magistrate of Poona ordered Tilak to furnish security. Defended by Muhammad Ali Jinnah, Tilak won in the Bombay High Court, which held his speeches to be fair political criticism.

Jawaharlal Nehru unveiling a portrait of 'Lokmanya' Tilak at India House, London, in 1952. Photo: nehruarchive.in

A young Jawaharlal Nehru in 1920 faced a similar situation. In Mussoorie with his family, he was asked by the police for a “positive undertaking” not to meet an Afghan delegation staying at his hotel. He had no plans to, but refused. “It would have been counter to all my principles and professions to give any undertaking,” he wrote to his father, Motilal Nehru. He was ordered out of the town.

When India rewrote its criminal procedure in 1973, it split magistrates into two wings: judicial to try cases, and executive, which kept preventive powers, including peace bonds. Today, the law lets state governments appoint senior police officers as SEMs.

Piloting the BNSS through Parliament in 2023, Union Home Minister Amit Shah said such changes would "free people from a colonial mindset". Since 2014, the government of Prime Minister Narendra Modi has also repealed more than 1,500 obsolete laws, listing that as one of its moves towards "de-colonisation of the mind". Other moves include renaming major roads. The peace bond chapter, however, was carried into the BNSS largely intact.

READ | 12 Years Of 'Decolonisation': How Modi Government Shed British-Era Practices

Saurav Das and Ashutosh Ranka spent a week in jail. Photo: IANS

What Courts Have Said

The Supreme Court upheld the old peace bond provision in 1970, while insisting that its procedure be strictly followed, in a case involving activist-politician Madhu Limaye.

Sheoran pointed towards another argument in a later ruling, 'Shreya Singhal vs Union of India', though not directly linked. In that judgment, the SC struck down Section 66A of the IT Act, which criminalised "offensive" online messages. "The law was cancelled because its wording, such as 'offensive', was considered too vague," he said. The same test of clear definitions should apply to peace bonds, he argued.

The Delhi High Court, hearing Bora's challenge, observed that the issue "has a facet in Article 21" of the Constitution that guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law.

The government's case is that peace bonds prevent harm rather than punish it. Additional Solicitor General Chetan Sharma told the Delhi High Court that the law empowers authorities to act when a breach of the peace is likely.

Sheoran does not dispute the idea of prevention as such, "but separating powers of the executive and the judiciary is important". He terms the current system reverse-engineering of offences, rooted in a "paternal" idea of the state defining what 'order' in 'law and order' means. It can prohibit certain things under emergency provisions, and can even punish you for that even before you get the chance to go to court, he said. 

READ | Jantar Mantar Tells Time. The Clock Just Stopped On Its Time As An Iconic Protest Site

What Happens Elsewhere

England, where the law essentially took birth, has narrowed it. Courts are now directed to specify the conduct a person must avoid, and breaking a bond usually costs money, not liberty.

Canada has expanded the idea of peace bonds to cover sexual offences, organised crime and terrorism, but a judge decides, after a hearing. "There are conditions like not getting near a particular person or not being allowed to do certain things, or being asked to carry out community service. All of that is well defined, specific," Sheoran said.

A protester being detained by police near Jantar Mantar in New Delhi on October 10: Photo: PTI

Kenya's High Court struck its version down in 2015, in a case involving a man who had spent 21 months in jail because he could not raise the bond amount. "How, one may ask, do the police determine who is likely to commit an offence...? Is it by one's dress? Their height or weight? Their manner of walking? Their hair?... If one is suspected of having committed a specific crime, then by all means let him be arrested and charged," the judge said.

Pakistan, which inherited the same criminal procedure code as India, abolished its executive magistrates in 2001. That did not end peace bonds, but moved them to the judiciary. Governments there have since tried to make a U-turn.

"India should simply go by how the law has evolved in advanced economies and democracies," Sheoran said.

For now, Das and Ranka's case proceedings continue as they argue that peaceful protest is no breach. Bora is holding firm, willing to go to jail over signing the peace bond. Hearings continue.