In 2023, the Indian parliament enacted three new penal laws: the Bharatiya Nagarik Suraksha Sanhita (BNSS), the Bharatiya Nyaya Sanhita (BNS) and Bharatiya Sakshya Adhiniyam (BSA), in place of its colonial era ancestors, a move that Union Home Minister Amit Shah said would make the criminal justice system "completely Swadeshi".

Back then, lawyers criticised the "new" statues as "old wine in a new bottle", largely retaining many problematic provisions introduced in colonial times. In 2026, the means adopted by the British Raj of quelling dissent still remain firmly cemented in Indian penal procedures.

The recent nationwide protests and the police response to them put these provisions under the spotlight, especially those that deal with preventive policing. Detained protestors were made to sign bonds promising not to cause "breach of peace" for varying amounts of time.

Here, we give historical context to these peace bonds, show how they have been retained in current jurisprudence and speak to leading criminal law practitioners on the issue.

Over 600 years before the "swadeshi" laws were introduced, on the Sunday before the Feast of the Conversion of St Paul in 1361, King Edward III enacted the Justices of the Peace Act. This 14th-century legislation gave Justices of the Peace - the modern-day equivalents of magistrates - the statutory power to take sureties from people suspected of being threats to peace or of bad character, to secure their good behaviour. This statutory power of "binding over" was generally preventive in nature, not punitive.

A few centuries later, with profound political and religious changes, the Justices became lynchpins of monarchs who, in turn, were able to advcance their policing power. Under Queen Elizabeth I, Justices of the Peace were given authority to enquire into all cases of persons accused of maintaining, defending, or extolling - by word or deed - the authority of the Pope in England.

As time went by, every monarch and government used the Justices for two main tasks - the enforcement of the new order and the repression of dissent. Whenever political danger was apprehended, a more rigorous execution of the law could easily be brought about by issuing orders to the Justices.

When the British Raj laid down its roots in India, it brought this apparatus with it. English common law principles and statutory framework were codified with a view to enhancing state control and containing social movements deemed threatening to the Raj.

The Code of Criminal Procedure (CrPC) of the 1861 empowered executive magistrates to demand bonds and sureties from persons suspected of breaching the peace. Unsurprisingly, the Raj ruthlessly weaponised these provisions to quell the Indian freedom struggle. Freedom fighters, political leaders, activists, protestors and journalists were frequently dragged before executive magistrates and made to sign peace bonds.

Preventive legal tools such as peace bonds still exist in some form in several common law jurisdictions. Just replace the names of the statutes and monarchs, and the historical facts briefly narrated above will seem eerily familiar and too current for comfort.

In independent India, the new CrPC enacted in 1973 retained the provisions empowering executive magistrates to demand peace bonds and sureties as a preventive tool in Section 110.

In 2023, the Central government, in a widely advertised effort to shed the colonial vestiges of penal laws, overhauled the CrPC and replaced it with the purportedly Indianised BNSS.

The power of the modern-day Justices of the Peace remain firmly in place in the new BNSS, under Section 126, through executive magistrates. Executive magistrates are police officers not below the rank of Superintendent of Police or equivalent, appointed by the State government under Section 15 of the BNSS.

Under Section 126, a person may be required to furnish an undertaking to maintain peace for a specified period of up to one year. These are issued by executive magistrates or special executive magistrates to maintain public peace, tranquillity, or prevent a prospective breach of the peace or unlawful assembly. Individuals may be asked to execute a personal bond and furnish a surety either cash or a local surety.

Violating the bond can lead to detention or forfeiture of the surety. Signing a peace bond does not provide immunity from subsequent arrest. Under Section 170 BNSS, the police can make a fresh preventive arrest if they know of a plan to commit a cognisable offence and believe it cannot otherwise be prevented.

Signing a peace bond does not, by itself, mean a blanket ban on participating in protests. It is upto the executive magistrate to determine whether the nature of the protest and the extent of the person's involvement in the protest amount to a breach of the bond.

It is all too easy to assume that what Section 126 lays down is just routine procedure to deal with habitual offenders or persons detained by the police under various suspicions. However, recent events make it impossible to ignore that in practice, peace bonds are a potent tool in the hands of the executive. Nowhere is this clearer than in the national capital today.

Amid demonstrations against the Election Commission of India, Chief Election Commissioner Gyanesh Kumar and the Special Intensive Revision (SIR) of electoral rolls, which removed over 13 crore voters from electoral rolls, Section 126 of the BNSS seems to be the weapon of choice of the police against the more recognisable faces of the protests.

While protestors and journalists are reportedly being detained and allegedly subjected to police violence, the police approach to Cockroach Janata Party leaders Abhijeet Dipke, Ashutosh Ranka and Saurav Das and All India Students' Association President Neha Bora is different.

On October 10, Dipke, Das and Ranka were detained immediately upon landing in Delhi. They were released after they furnished sureties of ₹50,000 each and signed bonds to maintain peace and good behaviour for one year.

On October 14, Das and Ranka were arrested again and remanded to judicial custody for 5 days for trespassing into Jantar Mantar. The police also accused them of breaching their earlier peace bonds.

On October 16, en route to the “Lehra Do Tiranga” march at Delhi's Connaught Place, Dipke and Bora were detained by the Police. Bora was released after a day and Dipke was released after he executed another peace bond.

On October 19, Assistant Commissioner of Police (ACP) Ritu Raj, acting as special executive magistrate (SEM), refused to release Das and Ranka and extended their judicial custody. The SEM opined that Das and Ranka were habitual offenders and were likely to breach peace if released. The CJP leaders maintained that a peaceful protest was no ground for judicial custody and that the police machinery was adopting delaying tactics to hamper the people's movement at the behest of the government.

They were ultimately released two days later.

In the meantime, an SEM issued a show cause notice to Bora to execute a personal bond of ₹10,000 and maintain peace.

Unlike the CJP activists, Bora refused to respond to the notice or sign a peace bond. Bora moved the Delhi High Court challenging the notice itself arguing that the proceedings amounted to an attempt to curb peaceful dissent and violate their fundamental rights to freedom of speech, assembly and personal liberty. However, the Delhi High Court dismissed Bora's challenge.

These cases have reawakened the debate on preventive policing, the constitutionality of preventive tools and the powers of executive magistrates.

Lawyers and activists have argued that peace bonds are frequently misused by the authorities who treat them as a voluntary surrender of the right to protest.

Speaking to Bar & Bench, Senior Advocate Maninder Singh said that recent events are evidence of overreach by the police and the SEM.

He explained that for the police to argue violation of a peace bond, the acts must have been similar or in continuance.

“If the bond they were made to sign was with respect to protest [on October 10], their second act [of unfurling the flag] is different. It is not about protest. Here they are only standing with the Tiranga [tricolour]. This is not an offence in continuance. They said we will unfurl the flag. They did not say that we will protest. So, this becomes a new qalandara. When this becomes new qalandara, then it gets attracted by Section 126 BNSS. And Section 126 says they can be released on a fresh bond.”

Singh also criticised the rejection of the sureties given by Das and Ranka.

“The arguments given by court to reject the sureties are vague. If there are any doubts about surety, the courts generally give you the leeway and tell the person to bring surety by tomorrow or the day after, and the court releases them in the interim. Sending to jail is the last resort,” he said.

Singh distinguished between a detention order passed by a judicial magistrate and an SEM. He explained that the latter is generally a police officer of the rank of ACP with little judicial training. 

Singh was also of the firm view that the case of Das and Ranka was a misuse of the legal process, saying “the procedure has been misused to keep them behind bars."

Senior Advocate Pramod Kumar Dubey, however, holds a different view. He said that the concept of peace bonds is not new and serves as a tool to balance the rights of citizens. Dubey explained that the police’s decision to ask people to sign peace bonds is based on several inputs and is aimed at maintaining law and order.

“It is a preventive measure. A peace bond doesn’t mean that you have committed a crime. It means you are being prevented from committing an act that can breach peace. If the police have the information and material which can satisfy the judicial conscience of the magistrate, the magistrate can direct a person to sign the bond. You are given the liberty to face the inquiry. If, in inquiry, you can satisfy the SEM that you are not going to breach peace, the surety would become infructuous,” he said.

On the question of an SEM passing orders despite being a police officer, Dubey said that the statute provides for such an arrangement and that the provisions remain in force unless struck down by a court.

“Unless and until it is challenged and set aside, you have to follow the law. See, this law has come by way of legislation. The public representatives have passed the law. You challenge it, and if the court concludes that the power is being misused, the judiciary will set it aside. An individual cannot decide whether the law is correct or incorrect. Only the constitutional courts can decide it,” he said.

On the use of peace bonds in the context of the CJP protests and Neha Bora, Dubey referred to the Delhi High Court order holding that the show-cause notice issued to Bora was not illegal.

“Delhi High Court has already adjudicated it. The High Court has considered everything in totality, and unless it is set aside by the Supreme Court, it is the law,” he said.

Senior Advocate N Hariharan termed peace bonds as a vestige of British colonial rule.

"At that time, the circumstances were different, with a foreign power governing India. Given India's large population, crowd management was a challenge, particularly during communal tensions, processions and the freedom movement, when people frequently gathered to protest. So, the British idea was to channelise these protests and this channelisation happened by introducing these provisions in the Criminal Procedure Code. These provisions were broadly aimed at maintaining peace and public order. Preventive detention and other preventive measures formed part of this framework, which has continued through successive criminal procedure codes, including those of 1898 and 1973, and has now been retained in the Bharatiya Nagarik Suraksha Sanhita (BNSS)," he explained.

He said that over the years, courts have intervened to regulate the exercise of such preventive powers by executive magistrates.

"However, the question remains whether these interventions have been sufficient to prevent their misuse," he added.

A reliable answer can be found in Senior Advocate and former Orissa High Court Chief Justice S Muralidhar's recent conversation with The Scroll, in which he said that peace bonds remain a potent weapon in the arsenal of the executive to this day despite judicial interventions.

When Muralidhar was a judge of the Delhi High Court in 2018, he called for mandatory training of executive magistrates and an oversight mechanism to review their functioning. But in this conversation, the former judge said that he is not aware whether those directions have been complied with at all.

As the government continues its attempts to quash protests, these colonial-era tools will likely continue to be used widely. As long as the relationship between the State and the citizens remains unchanged, the question remains whether "swadeshi" laws can help the common Bharatiya nagarik navigate colonial-era tools of quelling dissent.