Imprisoning Dissent: Dr. Kafeel Khan’s Case (Part I)
“If violence in society is perceived as a breach of the law, the law itself is equally violent and in fact has an even more debilitating effect because of its systematic and thorough ruthlessness backed by official sanction”. — K.G. Kannabiran
Dr. Kafeel Khan’s case like many other cases filed in connection with the Citizenship Amendment Act and National Register of Citizens protests (CAA-NRC protests) is a blot on the freedom of speech and expression and the right to life and liberty enshrined under Article 19 and Article 21 respectively of the Indian Constitution. In light of Dr. Khan’s incarceration in 2020, we test the tenability of the charges against him and the conditions of his detention in a two-part series.
Part I of the article will discuss the factual scenario in brief, the merit of charges slapped under the IPC, and the draconian National Security Act, 1980 (NSA) against Dr. Khan. Part II will focus on the conditions of his detention exacerbated by the COVID-19 pandemic as described by Dr. Khan himself in the letter written by him from Mathura Jail on 4 July 2020.
Brief facts of the case
Dr. Kafeel Khan was an assistant lecturer at Gorakhpur’s BRD hospital (which is situated in Chief Minister Yogi Adityanath’s constituency) and was imprisoned in 2017 allegedly for medical negligence. However, an inquiry panel instituted by the state government concluded that Dr. Khan was not guilty of the charges brought against him. The panel instead commended him for doing everything he could to save lives “given the seriousness of the situation in spite of being on leave” and further stating that it was in fact due to him that the hospital was able to procure the oxygen. He was eventually released in April 2018 after spending seven months in jail.
The Uttar Pradesh government arrested him again in connection with an allegedly provocative speech made by him on 12 December 2019 at Aligarh Muslim University (AMU). An FIR was registered against him on 13 December 2019 under Section 153A of the Indian Penal Code (promoting enmity between different groups). In his order, the Aligarh district magistrate said the speech was a ‘precursor’ to the rampant violence and stone-pelting that the campus witnessed on 15 December 2019 and Dr. Khan was arrested by a UP Special Task Force in Mumbai on 29 January 2020 when he had arrived there to participate in an anti-CAA protest. He was allowed bail on 10 February 2020 by an Aligarh Court; however, the Uttar Pradesh government thereafter detained him under the NSA on 13 February 2020. The habeas corpus petition in connection with this case was listed for 8 July 2020- the state consecutively pleaded that their reply was not ready.
Decoding NSA
For the readers from a non-legal background, it is relevant to mention here that the basic scheme of NSA is a preventive detention act. Section 3 of the NSA confers unfettered power on the Central Government, State Government, District Magistrate or Commissioner of Police (referred to collectively as “authorities” or “authority”) to detain any person in the following two circumstances:
(1) with a view to “…preventing him from acting in any manner prejudicial to the defence of India, relations of India with foreign powers or the security of India…” or
(2) “…with a view to preventing him from acting in any manner prejudicial to the security of the state or from acting in any manner prejudicial to the maintenance of public order…” (emphasis supplied).
Under the Act, a person can be detained for up to three months in the first instance; thereafter such period may be extended from time to time for any period not exceeding three months at a time. The total period of detention cannot exceed one year. This expiry of the detention order does not bar the government from issuing a fresh detention order against the same person “in any case where fresh facts have arisen”.
The basic tenet of criminal law requires disclosure of grounds of arrest so as to enable the defendant to be given a fair opportunity in court to defend oneself. However, under Section 8(2) of the NSA, the government is not obligated to disclose facts to the detenu which it considers such disclosure to be against the public interest. In other words, there is no obligation on the state to inform the grounds of detention which are sole to be passed based on the ‘subjective satisfaction’ of the authority. Thereafter, there are provisions for the Advisory Board to examine the case (considering the report of the authority and the representation of the detenu) and give its opinion whether the detention is justified or not. The detenu has no right to legal representation before the Advisory Board.
One would naturally assume that such a draconian act which has the effect of absolutely snatching the liberty of citizens would have a history of scarce application. However, the reality is quite the opposite. In the absence of government data on the subject, some scholars have pegged the conservative estimates of persons who suffered preventive detention through 2016 (the last available year) at around 8,000. The Act can very quickly transform into a tool to justify the continued incarceration of “unwanted” persons through a process with minimal procedural safeguards, without ever making efforts to prove their alleged infractions. It is in fact, frequently used to stifle political dissent critical of the government.
Politics and NSA: Dissent’s Death Sentence
In the background of these provisions, we examine Dr. Khan’s detention. Dr. Khan was been booked to prevent him from engaging in any act which was prejudicial to the maintenance of public order on grounds that his speech inspired students to protect against CAA and further caused violence that ensued at AMU on 15 December 2019.
Even before we go into the charges under NSA, it is important to mention briefly that, Dr. Khan’s AMU speech did not even warrant charges under Section 153A and 295A of the Indian Penal Code (IPC) for creating religious disharmony (under which FIR was registered in December as mentioned above). According to reports in The Hindu on the FIR against Dr. Khan, he allegedly said that, “we are giving employment in our homes to thieves who are stealing in our neighbourhood,” and “that Mota Bhai teaches us to become Hindu or Muslim but not human beings,”. To any reasonable mind, these phrases cannot be said to amount to ‘promoting enmity’ between communities or creates ‘religious disharmony’.
Mere subjective feelings of hurt or offence cannot be a ground for curtailing the freedom of speech else if every single person has a private right to prevent somebody else from speaking on the basis of hurt feelings, the freedom of speech is entirely meaningless (Offend, Shock and Disturb - Gautam Bhatia). Also, it seems pertinent to add the obvious lest the state ‘forgets’ that, the freedom to peacefully protest and criticize government policies is a protected fundamental right. To impute that the subsequent violence that ensued two days later on 15 December 2019 was due to Dr. Khan’s speech, was by any standard of measure, a preposterous suggestion. Especially, as per multiple reports, it was the police that had employed violence against the protesting students.
Now we come to the charges under the stringent NSA the application of which was prima facie fallacious. It had been established in the case of Abha Shridhar Ambulkar v S.V. Bhave that, the subjective satisfaction of the authority should be based on circumstances prevailing
(1) at the date of the order or
(2) likely to prevail at a future date.
Here, at the date of the order i.e. 13 February 2020, Dr Khan had been in jail since 29 January 2020 and was in the process of securing the enforcement of his bail (i.e. he was still in custody at the date of the order) and hence, it was difficult to believe that he would pose any threat to public order in such circumstances.
The authority purportedly claimed to base its decision on point (2) indicated above, that he was going to make provocative speeches on his release, the information source of which was unclear. This sole assertion was insufficient and did not indicate that he was likely to engage in such an act. Even assuming that he would have made a speech, the unilateral declaration before it was even made; that the speech would have been provocative was not reasonable by any legal standards, especially when it was strongly arguable that his earlier speeches also did not amount to ‘hate speech’. As mentioned above, this very reasoning actually has the effect of infringing free speech.
If this reasoning of the authorities is accepted, then the threshold of subjective satisfaction will be so low, that practically anyone could be placed in preventive detention. Hence, we notice there is little indication to show that there is sufficient nexus between the mere possibility of him making a speech and the purpose of the detention i.e. maintenance of public order. In the case of Prabhu Dayal, it was held that “The grounds and particulars must necessarily have a rational nexus with these purposes, or, in other words, must be relevant…No amount of particulars of it would cure the defect of a ground given which is extraneous to the purposes for which preventive detention may be ordered. Any such ground would vitiate the detention order at its inception.” At this juncture, it becomes difficult to sustain the NSA charges.
Add to this the suspicious timing of slapping of NSA charges just as Dr Khan was in the process of being released on bail. The legal principle around such circumstances is also well settled in light of the notable judgment in Ramesh Yadav v District Magistrate, Etah wherein it was clarified that if the grant of bail is to be opposed it should be done in the higher judicial forum, and ordinarily resort cannot be had to the NSA to continue the detention of the accused.
Here, also note that the NSA, like other laws curbing liberty, does not define crucial terms like ‘security of state’ and ‘public order’. It seems quite relevant to mention here again the words of the great civil rights lawyer K.G. Kannabiran,
“The tension between power and collective assertion of rights, the tension between status quo and change is described by authorities in terms such as ‘law and order’, ‘public order’ and ‘security of state’. These expressions have never been defined. But they have held sway over the country ever since Independence…they enable the state to employ violence against the people without a corresponding obligation to exercise discretion. Any scrutiny of this exercise of power by the state is only possible after the damage has been done” (Emphasis supplied).
These words accurately encapsulate the present case, wherein vague grounds based on scarce evidence have been used to take away one of the most sacred right of liberty.
From the above discussion, it is quite clear that NSA and other penal provisions in the present case have been employed solely to stifle dissent. The political background of the CAA-NRC protests and Dr. Khan’s previous brush with the Uttar Pradesh government had also arguably played a role in the application of the stringent NSA. Needless to say, such instances of unconstitutional state action are untenable in any democratic society and must be rectified immediately. It is as much the responsibility of the state to establish the confidence of the citizenry in law and judiciary as it is in the establishment of law and order.
Views are the writer’s own and do not necessarily represent the viewpoint of Volunteers Collective.
Written by Daksha Khanna. Daksha is a guest contributor for Volunteers Collective (Write for Democracy) and can be reached out at k.dakshakhanna@gmail.com.
