Jehangir Ali 
Srinagar: A day after a district magistrate (DM) imposed a blanket ban on protests and public gatherings in Kishtwar district of Jammu and Kashmir, a court on Tuesday (February 11) set aside the “imperialistic” order saying that peaceful protest was “integral part of healthy democracy”.
In its order, the court of principal sessions judge in Kishtwar said that the section 163 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, can’t be invoked on “flimsy grounds in the absence of substantial material on record”.
“A blanket ban (on protests) in the whole district (of Kishtwar) impeaches upon the basic fundamental freedom of the citizens and smacks (of) imperialistic attitude and could not stand the test of reason,” the court said, while staying the order.
On Monday, as first reported by The Wire, Kishtwar DM R.K. Shavan had banned public protests and the assembly of five or more people in the district for two months, stating that there was “reasonable apprehension of occurrence of any untoward incident which could escalate into public disturbance and .. imminent threat to public peace and public safety.”
However, the court ruled that there was “no imminent reason of emergent situation which could have asked for such stringent measures as imposition of restrictions under Section 163 BNSS”.
Section 163 empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate to impose restrictions on public gatherings when there are “sufficient grounds” of “danger to human life, health or safety or a disturbance of the public tranquillity, or a riot, or an affray.”
Peaceful protests in Kishtwar
“The District Magistrate order has to confirm the reason in order to prevent a greater mischief,” the court of principal sessions judge Manjeet Singh Manhas ruled, while directing Shavan to submit the record of reason for imposing the ban which will be examined by the court on February 18.
The court’s order came against the backdrop of a simmering agitation by some people for free electricity, which has started gathering steam in Kishtwar district of the Chenab valley since last month.
Hundreds of people – including political leaders from the ruling National Conference, the opposition Bharatiya Janata Party and Peoples Democratic Party – civil society members and religious figures have been staging peaceful protests in Kishtwar every Sunday for the last three weeks to demand free power.
Waseem Akram Butt, who started the agitation for free electricity, challenged the DM’s order through his counsel Safder Ali Shoket by filing a criminal revision petition under section 438 of BNSS on Tuesday (February 11).
The section empowers the high court and sessions court to review records for “satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed” by an inferior court.
Appearing for Butt, advocate Shoket argued that local residents of Kishtwar have been protesting peacefully for free electricity and the DM’s order was an attempt to “suppress the legitimate and constitutional right to protest peacefully”.
The counsel argued that the ban on protests has been imposed without inquiry or “material facts” in a “mechanical and perfunctory manner”, and the DC had not revealed the “urgency” to invoke section 163 BNSS which “cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights”.
“No emergent situation has arisen till date (and) passing impugned order tantamount to malafide on the part of respondent (DM),” the counsel argued in his petition.
The court ruled that the district magistrate has to “specify the reason for restrictions” with “specific information or material available … (from) which he can draw his satisfaction that the situation is alarming and in the interest of public peace and tranquility, there is no other option but to invoke these provisions immediately.”
The court in Kishtwar added, “A blanket ban on any protest is infringement of basic fundamental rights as the citizens have every right to highlight their grievances in a peaceful manner by way of protest which is integral part of healthy democracy.”
Kishtwar is set to emerge as the power hub of north India in coming years.
At least seven run-of-the-river hydropower projects with a cumulative generation of 6000 MWs are being set up on Chenab river in the hilly district which are set to be commissioned in coming years. Some of these projects have already started generating power.
“Kishtwar is a power surplus district, yet we are living in dark ages,” Butt had told The Wire, “My aim was to bring people of Kishtwar together for a common good but the administration is trying to break us. We are not against the power projects but some of their benefits should be transferred for the development of Kishtwar. Free power is the least the government can provide us,” he said.