All India Students Association (AISA) president Neha Bora told the Delhi High Court on Thursday that in a democracy, there is nothing wrong in making a call for a regime change..Bora was responding to the argument by Delhi Police that they (Bora has been referred to by they/ them pronouns) were part of the gathering in which a call was made for change of regime."Joint sitting with CJP leaders and Prashant Bhushan where it was said ye regime change ki ladai hai aur ham regime change karwa ke rahenge. She was part of the same gathering," the law officer for Delhi Police contended."There is nothing wrong with regime change in a democracy," Bora's counsel said."Do we need to go into that?" the Court asked."Regime change will (have to) happen by votes, not by lumpen elements congregating in New Delhi," the Delhi Police replied.The Court was hearing a plea filed by Bora challenging a notice issued to them by the Special Executive Magistrate (SEM) directing them to execute a personal bond of ₹10,000 and maintain peace..The hearing transpired before Justice Subramonium Prasad who reserved his verdict after hearing all parties at length.The order will passed tomorrow at 6 pm, the judge said.During the hearing, Bora also contended that there is no requirement under law to seek prior permission for hoisting the national flag..The notice under challenge was issued by the Delhi Police to Bora on October 18, directing them to appear before the Special Executive Magistrate (SEM) on October 19. The notice directed Bora to execute a personal bond of ₹10,000 with a surety to “maintain peace during the period of inquiry” against them..According to Bora’s plea, the notice dated October 17 was issued by the Special Executive Magistrate (SEM) under Sections 126 and 130, read with Section 135(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), citing apprehensions of breach of public peace and tranquillity.Bora was detained on October 16 while attending a gathering at Mandi House. Bora has 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 cited allegations of sloganeering at Mandi House, repeated protests around Jantar Mantar despite prohibitory orders under Section 163 of the BNSS, and allegedly instigating people to participate in a protest at Connaught Place.However, according to Bora's plea, the notice does not disclose any material establishing a likelihood of breach of peace or identify a specific event or period during which such a breach is apprehended.The petition also disputed the allegation concerning the Connaught Place protest. Bora argued that their call was for a peaceful gathering at Mandi House at 5 pm on October 16, where they were subsequently detained.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..Senior Advocate Gopal Sankaranarayanan, appearing for Bora, submitted that all calls made by them were for peaceful protests."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. She has been asking for reforms. Over time, she has put out tweets and exhorted people to join," it was submitted.Sankaranarayanan referred to the press conference held by Bora on October 15 in response to the de-notification of Jantar Mantar as a protest site.He sought to distinguish the protest that happened at Connaught Place from the one which Bora had called for at Mandi House."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. On the evening of October 16, when she caled for the protest when she goes to the Mandi House area, she comes to be detained barely 10-15 minutes. At that time she had not been guilty fo 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. The protest at Connaught Place was organised by some other organisation. She had given a call for (protest at) 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," Sankaranarayanan argued..He also highlighted how the special executive magistrate issuing the notice is also an police officer."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," it was pointed out.He further flagged errors in the notice and maintained that no permission is required to hoist the national flag."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," Sankaranarayanan said.He contended that a notice directing execution of bond can be issued only after an inquiry into the necessity of the same and not mechanically."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," Sankaranarayanan submitted."When you read Section 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. Is it not better for you to 135 inquiry to be completed?" the bench asked.The Court said that it cannot go into the subjective satisfaction of the SEM."The subjective satisfaction i cannot go into unless the subjective satisfaction is such that.... The compass is exceedingly narrow," the judge remarked."The notice is ex facie constitutionally wrong and legally wrong," Sankaranarayanan argued."So your third argument would be no independent opinion of the SEM?" the Court asked. "Yes, in fact, there is no opinion at all," Sankaranarayanan said.He said that he will not go into the merits of the allegations in the notice and that if that were to be done, then the remedy would lie elsewhere."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 Article 226," it was submitted..No permission is needed to hoist the national flag.Neha Bora .Additional Solicitor General (ASG) Chetan Sharma, appearing for Delhi Police, rebutted Bora's arguments. The Court asked the ASG whether the SEM should not have conducted an inquiry before issuing the notice to Bora."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 enough to take an action?" the bench queried."Two things need to be kept 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. The challenge to 130 is based on demurrer that there are some penal consequences," the ASG said.The Court asked whether receipt of any information about likelihood of a crime would be sufficient to issue a Section 126 notice."According to you, receipt of information 'likely to commit'?" the Court asked."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," Sharma replied."'Likely to commit' is based on the information received. The question is, whether there is an application of mind that the information received leads to a subjective satisfaction that there is 'likely to commit'," the judge asked.The Court said that in cases relating to detention, the only safeguard for citizens is the procedure laid down by the law."In a matter where liberty is under challenge, the only safeguard available to a citizen is the procedure, the requirement. The only safeguard is the requirement of the law to be met," the Court said.The ASG said that Section 126 and 130 of the BNSS have to be read together."If there is a likelihood that somebody may commit breach of peace, Section 126 BNSS kicks in with Section 130 BNSS. They can't be disjoined. Such technical splitting will take away the essence of public tranquillity and breach of peace. Therefore, sometimes the law enjoins you," the ASG contended..The Court said that it will need time to write its judgment and urged the government not to act upon the notice in the meanwhile."ASG Sir, just a small request, we will require a bit more time to write the judgment. Saturday, Sunday I am not in station, the hearing will finish today. I will write the judgment by Tuesday. The only request is till Tuesday, hold your hands," the judge said."It does not sound good that a court is seeking adjournment. I will take it on myself that we are seeking adjournment," Sankaranarayanan said.ASG Sharma maintained that the notice was based on likelihood of breach of peace and cannot be assailed on the ground of technicality."There is a likelihood of breach of peace. Don't leave it to a technicality... All mayhem may have broken loose in the capital of the city. Because this is preventive in nature so that law would land its weight to the way parliament envisaged it to be," the ASG argued.Regarding Bora's arguments that the notice was factually incorrect since she was had not given any call for protest at Connaught Place but only at Mandi House, the ASG said,"Their argument that their call was only for Mandi House and not CP and that no 163 BNSS was in force is false. There was 163 BNSS. Police was outnumbered, she ran. She dodges. She was stopped, she did not stop. She ran towards CP.".Besides Sankaranarayanan, advocates Abhik Chimni, Moksha Sharma, Ayan Dasgupta Samarendra, Pranjal Abrol and Gurupal Singh also appeared for Bora..[Read Live Coverage]
