The Bharatiya Nagarik Suraksha Sanhita (BNSS), the successor to the Code of Criminal Procedure (CrPC), provides for preventive measures to avert potential breaches of peace and maintain public order.These security proceedings, under Chapter IX of the BNSS, involve requiring a person to show cause for why they should not be directed to execute a bond to keep the peace or maintain good behaviour. A bond is an undertaking for release, stating that the accused will abide by the conditions set by the court. The term includes both bonds and bail bonds — while the former is an undertaking without a surety, the latter is an undertaking with surety (more on what sureties are later).There are two broad categories of security proceedings under the BNSS.Under Section 126, security proceedings can be initiated against any person who is likely to breach the peace, disturb public tranquility or commit a wrongful act, or cause such a disturbance.Under Sections 127, 128 and 129, such measures can be taken to ensure “good behaviour” of persons involved in the dissemination of certain prohibited material, suspected persons, and habitual offenders.The aim is to prevent trouble before it turns into violence or a criminal offence.How are preventive security proceedings different from an FIR?Story continues below this adSecurity proceedings and FIRs (first information reports) serve different purposes.An FIR initiates the criminal investigation process when the offence is cognizable — that is, when police can arrest a person without a warrant. Security proceedings, on the other hand, aim to prevent a possible breach of peace. They can begin even before any offence has occurred.This can be better understood through an example. Consider a situation where a dispute involving two communities threatens to spiral into a clash. In this case, security proceedings are required to prevent violence.Now, consider a situation where violence has already broken out. Here, police must follow the applicable criminal procedure, including registering an FIR.Story continues below this adAlso Read | Why CJP leaders’ arrests raise questions over a little-known legal provisionHowever, preventive security proceedings may additionally be necessary if more violence is anticipated. They address the risk of a further breach of peace.The two processes are, therefore, not mutually exclusive. An FIR deals with a suspected crime, while security proceedings address the risk of future trouble, and both can operate at the same time.Who’s empowered to conduct such proceedings?In most districts, such proceedings are conducted before Executive Magistrates (EMs) or Sub-Divisional Magistrates (SDMs).Many large cities in India, however, such as Delhi, follow a Police Commissionerate system. In such a system, some powers of the EM may be exercised by a police officer.Story continues below this adThe BNSS permits the state government to confer Executive Magistrate powers on a Commissioner of Police under applicable law and also provides for the appointment of eligible police officers as Special Executive Magistrates (SEMs). In such cases, these proceedings will be conducted before a police officer who acts as an EM.How are such proceedings conducted?First, the EM receives information and examines the material before them. They must have sufficient material on record to form a reasoned opinion that the person concerned is likely to cause a breach of the peace or disturb public tranquility. The material can come from sources such as newspaper reports, television interviews or social media posts.Usually, a police report with recommendation and containing all relevant evidence is sent to the EM. They are not bound by the police recommendation and must assess each case independently and apply their own minds.Experts Explain | Pendency and punishment: Why India needs a Sentencing CouncilSay, for instance, a journalist publishes an article alleging corruption by local officials, following which security proceedings are proposed on the ground that the publication has created tension. However, if, upon independent assessment of the material on record, the EM finds insufficient material to conclude that there is likely to be a breach of the peace, the statutory requirements for initiating such proceedings would not be satisfied.Story continues below this adNext, the person is called upon to explain. The EM will pass a preliminary order stating the reasons and the substance of the information received requiring the person to show-cause why they should not furnish a bond of a certain amount.Next, an inquiry follows to ascertain the truth. Following commencement and pending conclusion of the enquiry, if the EM, after prima facie assessment of the information, believes for reasons recorded in writing that an interim bond is needed or else there will be an imminent breach of peace, they can ask for it.Finally, upon completion of the enquiry, the EM decides whether furnishing a bond is necessary. The inquiry must ordinarily be completed within six months, failing which the proceedings automatically come to an end.What’s the need for bonds of a particular amount and sureties?Story continues below this adSigning a bond for Rs 20,000 for keeping the peace for six months does not mean paying the amount at the outset.Once the person defaults on the bond conditions, forfeiture procedure may be necessary under Section 491 of the BNSS.Sureties are persons who undertake their own obligations under the bond and provide an additional source from which the amount may be recovered if the bond is lawfully forfeited. Their involvement also encourages the person to honour the undertaking.Also Read | Explained: Why the Supreme Court may be hearing too many Special Leave PetitionsSection 140 provides a procedure for rejecting a surety considered unfit. This may include a person who might be a habitual offender.Story continues below this adWhat happens when a person who has been asked to furnish the bond does not furnish it or later defaults on the conditions of the bond?If the inquiry establishes that the bond is necessary, and the person fails to furnish the required bond, they may be imprisoned. For proceedings under Sections 126, 127 and 128, the maximum period of imprisonment for failure to furnish the bond is one year. Under Section 129, it can go up to three years.If a person is proved to have defaulted on the conditions of the bond after furnishing one, the EM may, after recording the grounds of such proof, order their detention for the remainder of the bond period.This order may be relied upon in subsequent proceedings under Section 491 of the BNSS for forfeiture and the penalty stipulated in the bond may be recovered.What are the safeguards against misuse?Story continues below this adThe BNSS prescribes a number of safeguards against the misuse of such provisions. Section 130 requires a written preliminary order, while Sections 135 and 136 provide for inquiry, an opportunity to present evidence, and a reasoned decision before security proceedings are ordered. Appeals under Section 414 and criminal revision under Sections 438 to 442 provide avenues for scrutiny.The relevance and necessity of these provisions have been studied, and their continuation has been recommended by many commissions such as The Second Administrative Reforms Commission (2007) and The Law Commission of India (1969).Also Read | Protest vs public order: How far can police go to prevent ‘trouble’?Articles 19(1)(a) and 19(1)(b) of the Constitution protect freedom of speech and expression and the right to assemble peacefully and without arms. These rights are not absolute. Articles 19(2) and 19(3) permit reasonable restrictions on specified constitutional grounds, including public order.In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970), the Supreme Court upheld the constitutional validity of relevant preventive provisions as reasonable restrictions in the interest of public order. Such measures remain useful in managing sensitive festivals, rallies, electoral violence, communal tensions and potentially volatile situations, such as circulation of fake news leading to mob mobilisation and threats of retaliatory action.The National Crime Records Bureau’s Crime in India 2022 report recorded 57,082 cases of offences against public tranquility, and rioting accounted for 37,816 cases. Effective and targeted preventive action could potentially avert many such incidents.What is the difference between security proceedings and preventive restrictions under Section 163 of the BNSS (the erstwhile Section 144 of the CrPC)?Both powers are intended to prevent imminent trouble and danger to public peace, but they work differently.Section 163 allows an EM, SDM or a District Magistrate (DM) to issue directions to prevent an urgent danger to human life, health, safety, disturbance of the public tranquility, riot, or an affray. Under Section 163, orders may be directed at an individual or the public in general restricting specified conduct, movement or activities such assembling in large numbers in a certain area. In emergencies, such orders may be issued ex parte — that is, without first hearing the affected persons.Security proceedings, on the other hand, are always initiated against identified persons. Say, for instance, that a mob has gathered at a spot following an inflammatory social media post.The EM may issue an order under Section 163 of the BNSS to prevent a confrontation or riots.But say the person who made the post continues giving calls for violence and retribution on social media. This person may be separately bound down under security proceedings.Thus, while both prevent violence and breach of public peace, they both operate differently and may complement each other.Choudhary is an IAS officer of the Jharkhand cadre; Kumari is an advocate. Views expressed are personal.