Not anti-national to say Babri Masjid should not have been demolished: Bombay HC quashes SDPI members' externment

The Bombay High Court on July 28 set aside externment orders (order banning/ expelling an individual from a locality/ district) issued by the Mumbai Police against two functionaries of the Social Democratic Party of India (SDPI) [Firoz Abdul Khan v. State of Maharashtra & Ors.]

Justice Madhav Jamdar observed that the externment orders against the two persons, based on FIRs arising out of protests, appeared unsustainable in law, particularly when other political parties had also participated in the same demonstrations.

The Court orally remarked that the action appeared to be selective and influenced by the religion of the two petitioners who belong to the Muslim community.

“FIR is against all political parties, but these petitioners are singled out. Action can't be taken selectively. Have you taken action against the political workers of the Congress party, against Shiv Sena (Uddhav Balasaheb Thackeray) faction? Just because they belong to one religion action is taken?” the judge said.

Pertinently, the Court also said that airing the view that the Babri Masjid mosque in Ayodhya should not have been demolished, is not anti-national and a citizen is entitled to have such a view on the issue.

The petitioners, Firoz Abdul Wahab Khan and Mohammad Rafiq Gulam Rasul Ansari, challenged externment orders dated December 3, 2025, which barred them from Mumbai for one year. The orders were based on three FIRs registered in 2024 and 2025 concerning protests over the Waqf Bill, air pollution caused by cement godowns in Chembur-Govandi and the Babri Masjid issue.

Advocate Ibraheem Harbat, appearing for the members, argued that none of the alleged acts attracted Section 56 of the Maharashtra Police Act, which permits externment when there is material to show likelihood of offences causing danger to persons or property.

During the hearing, Justice Jamdar noted that the FIRs merely referred to sloganeering and did not indicate any damage to persons or public property. 

The judge also took exception to the reliance on a protest linked to the Babri Masjid issue. It said that expressing the view that the mosque should not have been demolished could not be treated as anti-national.

“According to them, Babri Masjid should not have been demolished, that is their perception! How is it anti-national? That cannot be anti-national! That is their perception! Everybody has got right,” the judge remarked. 

Chief public prosecutor Shishir Hiray referred to alleged links between the accused with the banned Popular Front of India (PFI), an allegation denied by the accused. However, the court noted that such allegations did not form part of the show-cause notice and could not be relied upon. 

Hiray further contended that the petitioners’ conduct during protests could incite social disharmony and lead to breaches of peace. However, the court observed that fundamental rights could not be curtailed based on speculative apprehensions.

“As far as fundamental rights are concerned, no reading between the lines! Fundamental rights are there! How can fundamental rights of citizens be affected like this?,” the Court asked.

The Court also reiterated that externment is an extraordinary measure that curtails the fundamental right to free movement and must strictly comply with statutory requirements. It noted the settled legal position that offences still under investigation cannot form the basis for such action.

It referred to its earlier order granting relief to other SDPI members on similar grounds. Justice Jamdar had quashed an externment order against an SDPO functionary saying the action affected his fundamental rights and could not rest only on opposition to government decisions.

The Court concluded that the externment orders in this case were also legally unsustainable and proceeded to quash the same.