New Delhi: The Allahabad High Court Tuesday dropped the National Security Act charges against Dr Kafeel Khan, calling the order of his detention “bad”.
Khan has been in jail since 29 January, when he was arrested for an anti-CAA speech he delivered at Aligarh Muslim University (AMU) on 12 December 2019.
The judgment delivered by a bench comprising Chief Justice Govind Mathur and Justice Saumitra Dayal Singh said the speech for which he was detained “prima facie does not disclose any effort to promote hatred or violence”.
“It also nowhere threatens peace and tranquility 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 observed.
The court even said the Aligarh district magistrate who passed the detention order “had selective reading and selective mention for few phrases from the speech ignoring its true intent”.
It added that “there is a serious lack of objective material on record as may have given rise to a valid subjective satisfaction with the detaining authority to preventively detain the detenu (Khan)”.
After his arrest, an FIR was registered against Khan on 30 January under Section 153A of the Indian Penal Code (promoting enmity between different groups on grounds of religion). The FIR blamed his speech for trying to “disrupt the harmony between the communities”, and said it was “also likely to create a law and order situation”.
Later, Sections 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements creating or promoting enmity, hatred or ill will between classes) were added to the FIR, which referred to certain sentences from his speech, including mention of “mota bhai” (Gujarati for big brother) and the RSS.
While he was granted bail on 10 February, he wasn’t released and was slapped with NSA instead on 13 February. His detention has been extended twice since. He was to stay in jail till 13 November.
No action for two months
In its judgment, the court noted that no proceedings for Khan’s detention were initiated “for about good two months” since his speech at AMU.
“In absence of any material indicating that the detenu continued to act in a manner prejudicial to public order from 12.12.2019 up to 13.02.2020 or that he committed any such other or further act as may have had that effect, the preventive detention order cannot be sustained,” it observed.
The court also noted that Article 22 of the Constitution requires the grounds of detention, along with supporting material, to be communicated to the detenu, i.e. Khan in this case. However, the authorities had handed him a compact disk of the speech, without any device to play the disk.
“It virtually amounts to non-supply of the material necessary to submit a representation in accordance with clause (5) of Article 22 of the Constitution of India. Such non-supply of material violates a precious fundamental right of a detenu enshrined under Article 22 of the Constitution. On this count also the detention of Dr. Kafeel Khan deserves to be set aside,” the court opined.
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