Liberty vs Procedure: Delhi HC Reserves Order on Neha Bora's BNSS Challenge
The Delhi High Court has reserved its order on AISA leader Neha Bora's plea challenging a preventive notice under the BNSS.
The Delhi High Court has reserved its decision on a legal challenge brought forward by AISA leader Neha Bora, who is contesting a notice issued to her under Sections 126 and 130 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The proceedings, which center on a bond for maintaining peace, have sparked a critical judicial examination of whether preventive measures are being used without following due legal process.
The Core of the Legal Battle
Justice Subramonium Prasad presided over the hearing, listening to arguments from senior advocate Gopal Sankaranarayanan, representing Bora, and a team from the State consisting of Additional Solicitor General Chetan Sharma and Central Government Standing Counsel Ashish Dixit.
The primary point of contention is whether the Special Executive Magistrate (SEM) actually analyzed the evidence before issuing the notice, or if the statutory requirements for initiating preventive proceedings were simply ignored. While the State argued that the actions were preventive and based on evidence suggesting a likely breach of peace, Bora's legal team contended that the notice was both constitutionally and legally flawed.
“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 observed.
The Sequence of Events
According to the arguments presented by Gopal Sankaranarayanan, the situation unfolded as follows:
- The Call for Gathering: Following the denotification of Jantar Mantar as a protest site, Bora sought reforms and called for a gathering at Mandi House.
- Public Communication: A press conference was held on October 15 at the Press Club, followed by a social media post at 4 pm on October 16.
- The Nature of the Post: The counsel emphasized that the social media post was a reaction to the change in protest sites and contained no calls for violence, unlawful activity, or incitement to commit an offense.
- The Detention: On the evening of October 16, Bora was allegedly detained within 10-15 minutes of arriving at Mandi House after raising slogans. She was taken to the RK Puram police station, and her whereabouts remained unknown to others until the following morning.
Allegations of 'Cut-and-Paste' Notices
A significant part of the plea focuses on the quality of the notice issued by the authorities. Sankaranarayanan argued that the document was a "cut-and-paste" effort that lacked independent thought from the Special Executive Magistrate. He pointed out several factual inaccuracies, including a claim about hoisting the national flag without permission.
The defense further argued that the authorities failed to record the necessary satisfaction required by law. It was submitted that hearsay information cannot be the sole basis for a show-cause notice unless the authority has first verified its credibility. The counsel maintained that the challenge was not about the merits of the allegations, but about the failure to follow the law, which justifies the invocation of Article 226 of the Constitution.
Court's Critical Questions
During the proceedings, the bench raised several pointed questions regarding the application of the BNSS:
- Whether a magistrate can legally require a person to furnish a bond while an inquiry is still pending.
- The specific relationship and application of Sections 126, 130, and 135 of the BNSS.
- Whether the act of combining Sections 126 and 130 in a single notice suggests that the magistrate had already formed a predetermined opinion before the inquiry.
- Whether the magistrate independently assessed the credibility of the information received before concluding that a breach of peace was imminent.
The court has now reserved its order, leaving the legal community awaiting a decision that could clarify the boundaries of preventive detention and procedural safeguards under the new BNSS framework.