The Delhi High Court reserved its order on AISA president Neha Bora's challenge to a Special Executive Magistrate's notice under Sections 126 and 130 BNSS.

The Delhi High Court on Thursday reserved its order on a plea filed by All India Students’ Association (AISA) president Neha Bora challenging a notice issued by a Special Executive Magistrate (SEM) requiring her to show cause why she should not furnish a personal bond of ₹10,000 with one surety to maintain peace during an inquiry.

Justice Subramonium Prasad heard detailed arguments from Senior Advocate Gopal Sankaranarayanan, appearing for Bora, and Additional Solicitor General Chetan Sharma, who appeared for the Delhi Police/state respondent.

The central question was whether the notice issued to Bora under Sections 126 and 130 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, satisfies the statutory requirements governing preventive proceedings.

Bora argued that the notice does not disclose the substance of the information or demonstrate the Magistrate’s independent application of mind before concluding that there was a likelihood of a breach of public peace and tranquillity.

She has also questioned the inclusion of the proposed bond at the initial show-cause stage, contending that the statutory inquiry must precede any interim measure under Section 135(3).

The State, however, maintained that Sections 126 and 130 must be read together and that the Magistrate had considered substantial material beyond the police Kalandra, including General Diary entries and previous FIRs.

ASG Sharma also flagged Bora’s conduct of having a joint press conference with CJP leaders and Advocate Prashant Bhushan where remarks were made : "yeh regime change ki ladayi hai, hum regime change kara kar rahenge"

"A regime change in a democracy will happen by votes; it's a government. Not by lumpen elements, congregating in the nerve of New Delhi… Breach of peace is the main concern of the government. Bond to dena padega" : he argued strongly.

ASG Sharma also referred to as many as six FIRs, asking : "Can they be ignored? Will you be, will you be a paragon of virtue bathed in the milk? Bathed in the milk of innocence?"

AISA chief says notice mechanically reproduces allegations

At the outset, Sankaranarayanan defended Bora’s participation in protests as he argued that peaceful dissent forms an essential part of democracy. "As is the want in a democracy, you can protest against what the government does, and that's what keeps us healthy. There has never been any exhortation to violence at any stage by my client; it's always been entirely peaceful. Her words have always been modulated, always encouraging a correction of the course that the government and other authorities take" he submitted.

According to the petitioner’s counsel, Bora had called for a gathering at Mandi House on October 16 in response to the de-notification of Jantar Mantar.

Sankaranarayanan argued that the post contained no incitement to violence or call to commit an offence. He submitted that Bora was detained around 10–15 minutes after reaching the Mandi House area, where she and other protesters allegedly raised slogans.

He also disputed the allegation that she had instigated people to participate in a separate gathering at Central Park, Connaught Place, contending that the call for that gathering had been made by another organisation (referring to Cockroach Janta Party).

"I want to make one other thing clear, she is not involved with a separate call (at CP Central Park), that was called by another organization. She is not concerned with that, she's not involved with, she was not responding to that, she's dealing with her own call to convene at Mandi House" Sankaranarayanan submitted.

The police Kalandra, however, alleged that Bora arrived at the Mandi House roundabout with around 40–50 protesters, raised slogans and continued towards Barakhamba Road despite warnings that prohibitory orders under Section 163 BNSS were in force.

It also referred to earlier protest-related activities, previous cases and an apprehended risk of disruption in the Connaught Place commercial area.

Sankaranarayanan, however, argued that these allegations had simply been listed in the notice, followed by a conclusion that public peace could be disturbed, without explaining the link between the allegations and the apprehended breach.

What does Sections 126 and 130 BNSS require?

Section 126 BNSS empowers an Executive Magistrate to require a person to show cause why they should not execute a bond for keeping the peace, where the Magistrate receives information indicating a likelihood of a breach of peace or disturbance of public tranquillity and forms the opinion that sufficient grounds exist to proceed.

Section 130 requires a written order setting out the substance of the information received, the amount of the bond, the period for which it is to remain in force, and the number of sureties.

Sankaranarayanan argued that the requirement to state the “substance” of the information cannot be satisfied by reproducing the allegations received from the police and adding a general apprehension of a breach of peace.

He emphasised that the notice must disclose enough of the underlying reasoning to enable the person concerned to understand and answer the case against them.

He submitted that the Magistrate’s independent opinion was missing from the notice and could not be supplied retrospectively through additional material or an affidavit filed during the writ proceedings.

"If there are reasons in writing to show the application of mind by the special executive magistrate, I'm out of here. But if there isn't, they are out of here" he argued.

State says Sections 126 and 130 must be read together

Opposing the plea, the State, through ASG Sharma, argued that Section 126 is preventive in nature and concerns a future apprehension of a breach of peace, rather than punishment for an offence already committed.

ASG Sharma submitted that Sections 126 and 130 operate together and should not be artificially separated in a manner that frustrates the preventive purpose of the statute.

"Sections 126 and 130 ride together. They are not disjunctive. In a scheme of prevention which is echoed by the seven-bench judgment of Madhu Limay to say there is a likelihood of breach of peace and public tranquility. So, therefore the aspect of an individual being prejudiced must give way to the larger and the more statutorily ingrained and defined aspect of public tranquility and peace" ASG Sharma submitted.

The State further disputed the suggestion that the Magistrate had acted mechanically. It told the Court that the record contained a police Kalandra, General Diary entries, details of previous FIRs and other material concerning the events surrounding the protest.

According to ASG Sharma, the Magistrate had considered these documents and called upon the investigating officer to explain the material. It therefore characterised the case as one involving substantial material, rather than an instance in which no material existed to support the preventive proceedings.

TASG Sharma also argued that the High Court should not substitute its own subjective satisfaction for that of the Executive Magistrate at the preliminary stage, particularly when the petitioner could respond before the SEM and contest the allegations during the statutory inquiry.

Justice Prasad, however, indicated that the presence of a substantial volume of documents would not, by itself, answer whether the legally required satisfaction and reasoning were discernible from the relevant record.

The Court said it would examine the Kalandra, the accompanying documents and the SEM’s order alongside the authorities cited by both sides.

Court examines whether bond requirement was raised prematurely

Another significant aspect of the hearing concerned the notice’s final paragraph, which called upon Bora to show cause why she should not execute a personal bond of ₹10,000 with one surety for keeping peace during the inquiry.

Sankaranarayanan argued that the question of a bond had been brought into the initial stage even though the statutory inquiry had not begun. He also invoked the first proviso to Section 135, which restricts the direction to execute a bond for maintaining good behaviour in proceedings not taken under Sections 127, 128 or 129.

The State maintained that the notice merely initiated proceedings and gave Bora an opportunity to answer the allegations. It argued that the provisions must be read as a complete statutory scheme, including the later inquiry and the possibility of discharge if the necessity for a bond is not proved.

Order reserved

The State also relied on the alleged applicability of prohibitory orders under Section 163 BNSS in the Mandi House and Barakhamba Road areas. The petitioner disputed aspects of the geographical coverage but maintained that the central issue remained whether the notice complied with Sections 126 and 130.

During the hearing, the Court directed that the relevant documents be supplied to the petitioner so that she could respond to the material relied upon by the authorities.

In his concluding submissions, Sankaranarayanan reiterated that the notice must stand or fall on the statutory foundation available when it was issued and that additional material produced during the hearing could not cure an absence of the required reasoning.

The State maintained that the Magistrate had sufficient material before him and that the proceedings should be allowed to follow the statutory course.

After hearing both sides, Justice Prasad reserved the order.

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