Allahabad HC orders Kafeel Khan release, calls NSA detention illegal

PRAYAGRAJ: Calling the detention of Dr Kafeel Khan -- for alleged hate speech on AMU campus -- under the NSA 'bad' and 'unsustainable in the eye of law', the Allahabad high court on Tuesday ordered his release from Mathura jail. The bench of Justice Govind Mathur and Justice Saumitra Dayal Singh refuted the basic contention of his detention, saying that Dr Khan's speech didn’t promote hatred or violence, or threatened peace and tranquillity of the city of Aligarh.
Allowing a habeas corpus writ petition filed by Dr Khan’s mother Nuzhat Perween seeking his son’s release, the division bench directed to release Dr Khan from the state custody forthwith. Dr Khan was arrested on January 29, 2020, for his alleged hate speech on the AMU campus during the anti-Citizehship Amendment Aat (CAA) protest on December 12, 2019. An Aligarh court granted him bail on February 10, 2020, but before he could be released, the district administration booked him under the NSA and he remained incarcerated for seven months.
"The order of detention dated 13th February, 2020 passed by District Magistrate, Aligarh and confirmed by the State of Uttar Pradesh is set aside. The extension of the period of detention of detenue Dr Kafeel Khan is also declared illegal. A writ in the nature of habeas corpus is hereby issued to release Dr Kafeel Khan, the detenue, from state custody forthwith," the court said.
Quoting Dr Kafeel speech which he delivered at the gate of AMU campus on December 12, 2020, the court observed: “The speaker was certainly opposing the policies of the government and while doing so certain illustrations are given by him, but that nowhere reflects the eventualities demanding detention. 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 court added, “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 entire speech being a subject matter of a criminal case pending against Dr. Kafeel Khan, therefore, it would not be appropriate for us to make much comments on that.”
Questioning the Aligarh administration's move to make Dr Khan's speech a ground for his detention, the court asked why it took two months for the district administration to add charges under the NSA against him? "Pertinent to notice here that no proceedings for detention of Dr Kafeel Khan were initiated for about two months from the day he addressed the students. At that time the sole action taken was lodging a criminal case against him pertaining to offences under Section 153A of Indian Penal Code," the court said, adding "some offences were subsequently added to it. In the case aforesaid, accused Dr Kafeel Khan was arrested on 29th January 2020 i.e. after a lapse of more than 45 days."
There was no move to include the NSA charges even when the an application for getting the accused released on bail came to be accepted by the Chief Judicial Magistrate, Aligarh on February 10, 2020, the court said, adding "it was only after the his release order was passed on February 12, 2020, three police officials made a request to the district police chief to approach the DM for invocation of the NSA and the order of his further detention was served on Dr Khan."
On the additional advocate general's contention that the 'subjective satisfaction' of the detaining authority before invoking the NSA must be considered, the bench said: "It's not open for the courts to substitute their opinion by interfering with “subjective satisfaction of the detaining authority”. However, it does not mean that the court cannot look into the material on which detention is based. The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned."
Disposing the petition, the court said: “We have arrived at a conclusion that the order of detention is bad.” Earlier on August 25, the court had directed the state counsel to furnish the record of the proceedings under the NSA that resulted in the detention of Dr. Kafeel and further extension of the same. However, after hearing the counsel for the petitioner and the state at length, the court had reserved its judgment on August 28.
Dr Khan was booked under NSA on February 13, his detention was subsequently extended on May 13 by DM Aligarh for a further period of three months, i.e., till August 12 as according to the district administration, there was apprehension his release may lead to law and order problems. On August 4, the NSA was again extended for further three months, i.e., up to November 13.
The court also declared the extension of the period of his detention as illegal. Under the NSA, people can be detained without a charge for up to 12 months if authorities are satisfied that they are a threat to national security or law and order.
According to the habeas corpus petition, Dr Khan was granted bail by a competent court and was supposed to be released on bail. However, he was not released for four days and later the NSA was imposed on him. Hence, his detention was illegal as it was passed to nullify the effect of the bail granted by a competent court.
The plea had also challenged the detention of Dr Khan for four days before imposing NSA, even after he had secured bail in all the cases registered against him.
Dr Kafeel Khan had earlier hit the headlines in 2017 when he, along with eight others, was arrested for the disruption in supply of oxygen to the paediatric ward of Gorakhpur’s BRD Hospital, which allegedly claimed the lives of over 60 kids in a week. He was posted in the paediatric ward and was earlier held as a saviour who arranged oxygen cylinders when the supply was cut off. However, he was later charged with negligence and suspended. He and eight others, including the then principal, remained in jail for nine months before they were granted bail in April 2018.