Jammu & Kashmir Court quashes 'arbitrary' ban on smart meter protests

A Sessions Court in Jammu and Kashmir's Kishtwar recently set aside an order passed in February by the then-district magistrate (deputy commissioner) of Kishtwar, which had banned public protests against the installation of smart meters in the district [Waseem Akram Butt vs District Magistrate Kishtwar]..Judge Sudhir K Khajuria found that the order passed under Section 163 (power to issue order in urgent cases of nuisance or apprehended danger) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was not backed by any proper inquiry as required under the law. "I am of the considered opinion that order impugned has been passed in a very arbitrary, illegal and negligent manner without following the mandate of law as such order impugned passed by the respondent (district magistrate) on 10.02.2025 is set aside as it is against the settled norms of law," the Courts August 28 ruling said. .The district magistrate had issued the prohibitory order on February 10, 2025, banning protests against smart meter installations.The order was passed on allegations that during such protests for free electricity, smart meter installations were obstructed and public officials were being prevented from discharging their functions, leading to a breach of public tranquility. This prohibitory order was challenged by one Waseem Akram Bhutt who filed a revision petition. His counsel argued that the order was passed in a mechanical and perfunctory manner, and was aimed at curbing democratic rights of people who were demanding free electricity and opposing the installation of smart meters..After examining the case records, the court found the prohibitory order to be arbitrary, illegal and negligent.Among other factors, the court noted that as a procedural safeguard, the Supreme Court had laid down that an inquiry must first be conducted into whether there is an actual need to issue a prohibitory order. It is based on such an inquiry that the district magistrate is expected to form an opinion on whether there is a public threat or obstruction that is required to be prevented by passing prohibitory orders. .In this case, the court found that the district magistrate had cited an inquiry report submitted by a Tehsildar. However, on a closer examination, the court further noted that the Tehsildar had prepared the report upon the district magistrate's verbal directions, without any independent inquiry to establish an urgency for passing a prohibitory order. The court termed the whole sequence of events strange, adding that this is not the kind of prior inquiry contemplated under the law. "It is very strange to note that Tehsildar Kishtwar while reporting it to District Magistrate on the same day mentioned that he is giving this report on the basis of verbal directions of the District Magistrate, meaning thereby that District Magistrate, who actually passed the impugned order, is the real person who initiated the proceeding by giving oral direction (not the information) to his subordinate and his subordinate on the same day instantly by getting a report promptly prepared on the same day gave the information to the respondent (district magistrate), who was already having the knowledge. By this way a vicious circle of receiving and getting the information was started, which started and ended up with the same person i.e. respondent herein. Now this type of inquiry was never conceived or imagined by the law makers while incorporating section 163 in Chapter XI of BNSS 2023 (corresponding to section 144 Cr.P.C)," the ruling said. .The court further noted that no individual was examined during the Tehsildar's inquiry, and neither was any complaint received from government officials about any obstruction in the discharge of their duties.It reiterated that the Supreme Court has already laid down that prohibitory orders under Section 144 of the Code of Criminal Procedure (CrPC) (now replaced by Section 163, BNSS) cannot be be misused to suppress a legitimate expressions of dissent in the exercise of one's democratic rights..The court proceeded to quash the district magistrate's February prohibitory order. Advocate Safder Ali Shoket appeared for the petitioner..[Read Order]