Read Time: 09 minutes

Synopsis

The Kerala High Court, while quashing a preventive order issued by the Sub Divisional Magistrate, requiring a protestor to execute a bond for maintaining peace for a year, has ruled that the liberty of a citizen cannot be curtailed casually by citing participation in public demonstrations.

The court, presided over by Justice V.G. Arun, observed: “The liberty of a citizen being sacrosanct, cannot be curtailed in a casual manner, by referring to crimes relating to public demonstrations. Mere participation in demonstrations, holding of banners or shouting slogans, cannot be perceived as activities in violation of the reasonable restrictions mentioned in Article 19.”

The case originated from a preventive order issued under Section 130 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) against the petitioner, Sharmina A, a 24-year-old resident of Malappuram. The order was based on a report from the Station House Officer, Kolathur Police Station, alleging that the petitioner repeatedly engaged in illegal activities and posed a threat to public peace. The report cited three criminal cases against Sharmina. The first case, alleged that she participated in a procession commemorating a deceased Maoist activist. The second case, pertained to a protest where she and others allegedly disrupted traffic while shouting the slogan “In the land of Babari, Justice is only Masjid.” The third case was linked to a demonstration against an National Investigation Agency (NIA) raid.

The petitioner argued that her actions constituted peaceful protest and dissent, which fall well within the definition of fundamental rights under Article 19 of the Constitution. It was further contended that invoking Sections 126 and 130 of BNSS to force the petitioner to execute a bond was an abuse of power, as there was no prima facie evidence of her posing an imminent threat to public peace and tranquillity.

On the other hand, the Public Prosecutor representing the State, argued that the repeated registration of cases against the petitioner demonstrated a pattern of disruptive behaviour, justifying the preventive action to maintain public order.

While examining the central question “whether petitioner's liberty can be curtailed, by requiring her to execute bond for keeping peace for participating in demonstrations to protest against the policies of the Government?,” the court emphasised that Article 19 of the Constitution guarantees every citizen the right to free speech and expression, the right to assemble peacefully without arms, and the right to form associations or unions. However, the court clarified that these rights are not absolute and are subject to reasonable restrictions, which must be justified based on concerns such as public order, decency, morality, and the sovereignty, integrity, and security of the State.

In the present case, the court found that the Sub Divisional Magistrate failed to apply independent judicial reasoning and relied solely on the police report. Relying on the principles established by the Apex court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970) and Santhosh M.V. and Others v. State of Kerala and Others (2014), the court noted: “Magistrate must pass a preliminary order, stating nature of information received and the relevant factors which influenced him to form an opinion that the concerned person is likely to cause imminent breach of peace, making it essential to take preventive action against that person.”

The court held that merely citing pending criminal cases without demonstrating an imminent breach of peace was insufficient to justify restricting a citizen’s liberty. “The conduct or wrongful acts, which are projected as the reason for issuing the order must have occurred recently and must be relatable to the apprehension of likelihood of breach of peace. In the case at hand, the impugned order does not even indicate the factors that had prompted the Magistrate to form an opinion that, unless prevented, activities of the petitioner will result in breach of peace and disturb public tranquillity,” the court stated.

Consequently, the preventive order was quashed for the lack of specific reasoning or evidence of an immediate threat.

 

Cause Title: Sharmina A v Sub-Divisional Magistrate & ors [CRL.MC NO. 10742 OF 2024]

Appearance: The petitioner was represented by Advocates Rizwana A.A. and Aqib Sohail P.S.; while the State was represented by Senior Public Prosecutor Pushpalatha M.K.