ASG Sharma: Section 135 proviso "a" will not trump the latter part of Section 130.
Court: The 130 notice when you are clubbing 130 and 126, in a 130 order, that will not mean the magistrate has made a premeditated mind?
ASG Sharma now refers to Section 130 of BNSS.
Court: "Likely to commit" is based on the information received... The question is, is there an application of mind that the information received leads to a subjective satisfaction that there is "likely to commit".
Court: According to you, receipt of information "likely to commit"?
ASG Sharma: Likely to commit what? Not the crime in traditional sense but a breach of peace and that may probably occasion a breach... This has some connotation... This is subjective satisfaction as wide it can get.
ASG Sharma: The challenge to 130 is based on demurrer that there are some penal consequences...
Court: Also, when the hearing is to be held, will these documents be supplied to the other side? Because it forms the basis of the opinion.
ASG Sharma: Yes. I am duty bound today, while representing the State to take your lordships to what I call is the sine qua non of the eye of the needle that my lordships point. Two things need to be keep in mind. The entire argument proceeds on two aspects. One, procedurally there is no challenge. His case is 130, the requirements in 130 and 126 do not meet. So it is a challenge to the substance, not the procedure.
Court: Let's assume someone tells the magistrate that x was there shouting slogans... And on that basis, he issues a 126 BNSS notice. So therefore, without making an inquiry, he gives a 126 notice to file a bond without even finding out that 'x' may not even be there at all and on that very date there are press reports that 'x' was at some other place giving a speech; then is it not necessary for the magistrate to do an independent search that the information received is credible enought to take an action?
ASG Sharma takes the court through the BNSS provisions.
ASG Chetan Sharma begins his submissions.
Court: What is your reaction to 135 proviso "a" as to whether this wherein a bond is to be given from 127, 128 and 129, whether at the time when magistrate... Though your notice says... Second point I want your argument on is other than qalandara was there any other material or inquiry done by you to substantiate your opinion under 130 leaving to show cause notice. These are two events, one legal and one factual. After that you start.
Gopal S concludes.
Gopal S: Before I end, I will draw my lordship's attention to article 19(1)a) and 19(1)(b). What is common in all these is "public order".
Court is informed that the next date of hearing before SEM court is Saturday.
Gopal S says he will hand over a note to the court.
Court: Note? I have to give my judgement tomorrow no?
He now refers to 2018 Delhi High Court judgement in Aldanish Rein vs State Of Nct Of Delhi & Anr.
Gopal S refers to judgements.
Gopal S: If I were to engage with the merits of the allegations, then my remedy is obviously not here. I am not engaging. I am saying compliance with law. That entitles me to come here under 226.
Court: ASG sir, he is addressing the merits and maintainability together.
Court (in lighter vein): Gopal doesn't come here often. You know this court doesn't believe in timelines...
Gopal S: When I do come here and I am engaged like this, it is refreshing.
Court: Your argument is that it is a mechanical cut paste?
Gopal S: There is a whisper from the other side; if he keeps his issue about maintainability, then I will have to argue more on that.
Court: He is saying it is premature.
Court: The question is that could it (show cause notice) be in the nature of a judgement? The question is why should the court go into whether the opinion arrived at this stage...
Gopal S refers to Section 107 of the CrPC of 1898.
Gopal S: There is no bond question arising at the show cause notice stage.
Gopal S (relying on the judgement): The hearsay which has formed the substratum of 126 [BNSS] becomes the basis for you to conduct an inquiry and give reasons in writing under 130 [BNSS]. Constitution Bench makes it clear that at every stage you have to give reasons in writing.
Gopal S refers to 7 judge Supreme Court bench in Madhu Limaye case.
Gopal S: Stage 1 is substance; stage 2 is the inquiry.
Gopal S refers to Section 135 BNSS.
Court: So your third argument would be no independent opinion of the SEM?
Gopal S: Yes, in fact, there is no opinion at all.
Gopal S: The notice is ex facie constitutionally wrong and legally wrong.
Court: The subjective satisfaction I cannot go into unless the subjective satisfaction is such that... The compass is exceedingly narrow.
Court: Therefore, again, is it not more prudent for you to wait till this is over. And then hit this court on Saturday to trouble me on a Sunday.
Court: As I told Abhik yesterday, is it not better for you to 135 inquiry to be completed?
Gopal S: These 4 sections are important because if for example under 128 a notice is issued to a person X and assume that he is going to commit a cognisable offence...
Court: When you read 135, I want to know what is your input on proviso after 135 (3). Read the first proviso. How do you see 135... I am saying this in your favour. How do you read this proviso in respect to what is being transpired now?
Gopal S takes the court to relevant sections of the BNSS.
Gopal S: There are a dozen judgments. I don't want to burden Justice Prasad in the middle of the vacation; that is why we have given a select few judgments.
Court explains the procedure.
Court: Tell me where you and I do not agree on this?
Gopal S (on notice): What am I expected to say? How do I respond to this?
Court: The First point is clear, the second I am not with you as of now.
Gopal S: First, it [notice] is cut and paste which vitiates it. Second, even for an interim bond an inquiry is essential. The magistrate could not have birthed the idea of a personal bond until the inquiry into the necessity of the bond was complete.
Bench: Because of last three word in the notice.... The purport of the notice is please satisfy me during the period of inquiry you should not give a bond. On satisfaction the magistrate can decide... Should we go to that extent or should we confine ourselves to the notice issued under 126 and the reason behind it?
Gopal S: My point is that this question of personal bond etc. does not arise at this stage until the inquiry is complete. On this we have the 7 judge bench judgement of the Supreme Court.
Bench: We are in pre-135. I want you to address whether what this court is doing under Article 22 of the Constitution is the job of magistrate under 135 (3) BNSS.
Gopal S: This is factually wrong because I did not say anything about CP. It says, "hoist the national flag without permission." I am surprised anyone can say this. No permission is needed to hoist the national flag.
Gopal S: Just see the notice. It claims to be under 126 and 130 BNSS. The question is does this have substance.
He reads the notice issued by SEM.
Gopal S: It is admitted that there was a direction by senior officers to initiate the procedure under Section 126. It is relevant because the SEM here is also an ACP.
Advocate Abhik Chimni (also appearing for Bora) is reading the qalandara.
Gopal S: There is no 163 there but loudspeakers are telling us that 163 is in place.
The qalandara is being read in the court.
Gopal S: The first safeguard I have is I can reach out to a lawyer or family immediately. The next day there is a qalandara submitted to SEM.
Gopal S: At night she was taken to RK Puram police station. No one knew about it till wee hours of the morning.
Gopal S: The protest at CP was organised by some other organisation. She had given a call for Mandi House. It has now become a practise that when people are protesting, they are taken away, not allowed to get in touch with lawyer, nothing.
Gopal S: On the evening of October 16, when she called for the protest, when she goes to the Mandi House area, she comes to be detained in barely 10-15 minutes. At that time she had not been guilty of any offence. The only thing that happened was that she raised some slogans and she was detained. We believe that it is completely illegal detention.
Gopal S: This is issued by her promising a meeting at Mandi House. What is important is what is missing from this post. There is no question of incitement to violence, breaking of any law, breach peace, upsetting public tranquility, inviting congregation in order to commit any offence.
Bench: Your arguments are on the wordings of Section 130 and 126.
Gopal S: On October 15 there is a press conference by the petitioner in Press Club. On October 16 at 4 PM a post is put up. This was a reaction to the fact that Jantar Mantar was suddenly denotified.
Gopal S refers to Jantar Mantar on a map.
Gopal S: She has been asking for reforms. Over time, she has put out tweets and exhorted people to join.
Senior Advocate Gopal Sankaranarayanan: It is a very narrow issue wrt to notice under Section 126 and 130 of BNSS. Petitioner is a leader of AISA and very active in public life. The facts are that over a period of time certain protests have arisen in the country as it the want against what the government does. As far as my client is concerned there has been no exhortation to violence it has been entirely peaceful.
ASG Chetan Sharma: We have objections to both maintainability and entertainability.
Hearing starts
The Delhi High Court is slated to hear All India Students Association (AISA) president Neha Bora's petition challenging a notice issued to them by a Special Executive Magistrate (SEM) directing them to execute a personal bond of ₹10,000 and maintain peace.
Bora, who has been at the forefront of student protests and the movement against Chief Election Commissioner (CEC) Gyanesh Kumar, was detained on October 16 while attending a gathering at Mandi House.
They have alleged that they were taken to an undisclosed location and subsequently to RK Puram police station, where they were held overnight before being released at 6 AM the following day.
They received the SEM notice on October 18. The notice cites allegations of sloganeering at Mandi House, repeated protests around Jantar Mantar despite prohibitory orders under Section 163 of the BNSS, and instigating people to participate in a protest at Connaught Place.
Bora has alleged that the proceedings amount to an attempt to curb peaceful dissent and violate their fundamental rights to freedom of speech, assembly and personal liberty.
The matter was listed before the Court yesterday. However, Bora's counsel sought an adjournment, following which it was adjourned till today.
Justice Subramonium Prasad is hearing the case.
Live updates from the hearing today feature on this page.