Allahabad HC quashes Kafeel Khan's detention
Allahabad High Court on Tuesday quashed the detention of Dr Kafeel Khan under the National Security Act (NSA) and ordered his immediate release, saying the Uttar Pradesh government had done a “selective reading” of his anti-CAA speech at Aligarh Muslim University.
The medical doctor had called for national integrity and not incited violence, the court observed.
Khan, a critic of the BJP governments at the Centre and in Uttar Pradesh, has been in jail since January.
Although he was granted bail in February, the Aligarh district magistrate invoked the stringent NSA against him with the ratification of the Uttar Pradesh government and continued to keep him in jail.
On Tuesday, quashing Khan’s detention order, the bench of Chief Justice Govind Marhur and Justice Saumitra Dayal Singh said: “A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It also nowhere threatens peace and tranquillity of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the district magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent.”
The court was hearing a writ petition filed by Khan’s mother Nuzhat Parveen challenging the doctor’s detention against the NSA. Parveen had initially moved the Supreme Court, which transferred the case to Allahabad High Court.
Khan had addressed students at AMU on December 12 last year during a protest against the Citizenship Amendment Act. The court noted that he had been arrested on the charges of “provoking religious sentiments” and attempting to “incite hatred, enmity and disharmony” to cause an “adverse impact on the harmony between the communities” and disturb public peace.
The high court said Khan’s detention under the NSA after being granted bail by a competent court in February was illegal. A person can be held without trial for 12 months under the NSA. Khan is lodged in Mathura jail.
Allahabad High Court said that a “causal link is found to be missing or completely broken” in the case.
“In the absence of any material indicating that the detainee continued to act in a manner prejudicial to public order from December 12, 2019, up to February 13, 2020 (when Khan was booked under the NSA), or that he committed any such… further act as may have had that effect, the preventive detention order cannot be sustained,” the court said.
The court added: “In fact, the grounds of detention are silent as to public order at Aligarh being at risk of any prejudice in February 2020 on account of the offending act attributed to the detainee on the date December 12, 2019.
“What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded.”
The court noted that Khan had during the AMU speech said that “Mota Bhai” — elder brother in Gujarati and a term sometimes used to refer to Amit Shah and Narendra Modi — wanted to see people either as Hindu or Muslim, that crores would be spent to send people to detention centres and that the healthcare system had broken down. The court noted that Khan had said “they talk about shamshaan-kabristan, Ali-Bajrang Bali, your Kashmir, Ram Mandir, CAB, NRC. They don’t talk about the promise that they made for 2 crore jobs per year. They don’t talk about giving Rs 15 lakh to us as earlier said by them. The economy is doomed, small businessmen are ruined.”
Explaining why Uttar Pradesh chief minister Adityanath had targeted him, Khan had said: “The talk about nationalism is actually pseudo-nationalism, on the basis of pseudo-Hinduism only.”
The court said Khan was given a compact disk containing his speech at AMU for him to prepare his representation but no player was made available.
“The grounds for detention along with material were supplied to the detainee in light of Clause (5) of Article 22 of the Constitution, enabling him to submit his representation to the competent authorities at the earliest. The material so given was a compact disk of the speech delivered by Dr Kafeel Khan on 12th December, 2019, at Bab-e-Syed gate of Aligarh Muslim University. On asking, it is conveyed to us that no transcript of the speech was supplied to the detainee. The non-supply of transcript would have been of no consequence if a device would have been supplied to the detainee to play the compact disk. It is the position admitted that no such device was made available to the detainee,” the court noted.
The court observed that the orders extending Khan’s detention were never given to him. “The record shown to us and the pleadings of the petition also refer that only radiograms relating to the decision of the state government for extension of the term of detention were supplied to the detainee,” it said. “The radiograms mention that the actual order shall be sent through speed post but in fact nothing except the radiograms were given to the detainee.”
The court added: “In light of the discussion above, we are having no hesitation in concluding that neither the detention of Dr Kafeel Khan under the National Security Act, 1980, nor the extension of the detention are sustainable in the eye of law,” it said.
The Uttar Pradesh government had in August extended Khan’s detention under the NSA by three months, saying that an advisory council had noted in its report that there were “enough reasons” to keep him in jail.
“The order of detention dated 13th February, 2020, passed by the district magistrate, Aligarh, and confirmed by the state of Uttar Pradesh is set aside. The extension of the period of detention of… Dr Kafeel Khan is also declared illegal. A writ in the nature of habeas corpus is hereby issued to release Dr Kafeel Khan… from State custody forthwith,” the court said on Tuesday.
Khan had earlier been arrested in 2017 following the deaths of children at Gorakhpur’s Baba Raghav Das Medical College because of lack of oxygen cylinders. Khan had been the nodal officer of the 100-bed encephalitis ward of the medical college. It later emerged that the company that had been assigned to ensure uninterrupted supply of liquid oxygen had disrupted delivery because of non-payment of dues by the state government. Khan and nine other doctors and staff members of the hospital had been arrested and later granted bail.
An Uttar Pradesh government committee had later absolved Khan of any wrongdoing. The doctor had then alleged that chief minister Adityanath did not like him because he had spoken the truth about the case.