Abuse of preventive detention against criticism

The Supreme Court requested the Allahabad High Court on August 11, to decide the question of release of Kafeel Khan, as early as possible. A campaign to release the Gorakhpur doctor took the Twitter by storm on July 20. With over a lakh tweets in four hours, 'ReleaseOurDrKafeel' was the top trending hashtag. The campaign for release of the suspended paediatrician was announced by the All India Students' Association.

Allahabad High Court pointed out how the detention of Dr Kafeel Khan was bad, not based on material, without reading the complete text of speech against CAA, and ordered his release. Dr.Kafeel Khan was questioning the Uttar Pradesh government about the 2017 oxygen tragedy in the BRD hospital in Gorakhpur in which 70 kids died. His speech criticising the CAA and NRC was used to slap a false case under Section 153A IPC allegedly spreading communal hate, and he was detained under National Security Act, after he was ordered to be released on bail.

The Allahabad High Court on September 1 has set aside the National Security Act charges against Dr. Khan terming it illegal and directed his release. A Division Bench of Chief Justice Govind Mathur and Justice Saumitra Dayal Singh, hearing a habeas corpus writ filed by Dr. Khan's mother, also declared the extension of the period of his detention under NSA as "illegal."

The Supreme Court requested the Allahabad High Court on August 11, to decide the question of release of Kafeel Khan, as early as possible. A campaign to release the Gorakhpur doctor took the Twitter by storm on July 20. With over a lakh tweets in four hours, 'ReleaseOurDrKafeel' was the top trending hashtag.The campaign for release of the suspended paediatrician was announced by the All India Students' Association.

His mother Smt. Nuzhat Parween, filed a petition for a writ of Habeas Corpus assailing validity of the detention order dated February, 13 passed by the District Magistrate, Aligarh invoking powers under sub-Section (2) of Section 3 of the National Security Act, 1980. With the degree of Doctor in Medicine (MD), Dr.Kafeel Khan, joined as Lecturer at Baba Raghav Das Medical College, Gorakhpur (B.R.D. Medical College, Gorakhpur) in 2016. He took part in a meeting addressed by Dr Yogendra Yadav on December 12, 2019, protesting Citizenship Amendment Act at Aligarh Muslim University, and spoke, for which he was arrested on January 29 under Section 153 A of IPC.

He was released on February 10 on bail on production of two sureties of Rs 60,000 and a surety of same amount with the condition that he will not repeat the crime in future. He was not released and not produced before the Magistrate, hence the Chief Judicial Magistrate passed another order on February 13, directing the officers to ensure his release. This order was not accepted by the Superintendent of District Jail, Mathura, intentionally and purposefully (as stated by CJM Aligarh).

On the same day of February 13, the Aligarh Police recommended the District Magistrate, Aligarh for detention of Dr. Kafeel Khan under Section 3(2) and (3) of the National Security Act, 1980. District Magistrate Aligarh gave on order of detention of Kafeel on February 13. After rejecting various representations, he was given an opportunity to present his case on March 17 by the State Advisory Board, after which on April 1 the detention was confirmed. On May 6, the state invoked powers under 12(1) of NS Act and extended detention for a period of 6 months from February 13, which was extended further for another six months.

Dr Kafeel's mother challenged that the order of detention is passed only to frustrate the release order passed by the Chief Judicial Magistrate, Aligarh on February 10. Opposing release state argued that the subjective satisfaction of District Magistrateafter consideration of the material available is not open to be examined and interfered by Court under Article 226 of the Constitution of India. He said: The contents of the speech clearly indicate that the detenue was intending to harm communal harmony, peace and tranquility and for the purpose he prompted student community to be aggressive. As a consequence to the address made by him to a gathering of about 600 students on February, 12, nearly 10,000 people gathered at Bab-e-Syed gate Aligarh Muslim Unviersity, Aligarh on February 13 and caused violence at high level. His mother argued that the note containing grounds for detention does not satisfy the requirements of Article 22 and the provisions of NS Act as authority did not look into the complete speech by Dr. Kafeel. An intentional effort was made for not providing complete lecture. A compact disk was supplied but no device was made available to play the same.

The National Security Act, 1980 that was enacted to provide for preventive detention, which is an exceptional mode to curtail liberty in exceptionally rare circumstances. Under Article 21 along with the right to life, the right to personal liberty is a precious fundamental right. Every citizen is at equal status with equal opportunities. Court noticed that no proceedings for detention of Dr. Kafeel Khan were initiated for about good two months and he was arrested after 45 days. There was no recommendation for invoking powers under Section 3(2) of the National Security Act, 1980. It is only after passing of the release order dated 12th February, 2020 police recommended to invoke powers under NS Act. The Additional Advocate General argued that the satisfaction of the detaining authority is "subjective in nature" and the Court cannot substitute its opinion over it.

High Court said: "… 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.

While assessing "subjective satisfaction Court has to look into the record to examine whether the subjective satisfaction is acceptable to a reasonable wisdom. It heard and scripted complete speech of Dr Kafeel, who said: Before even entering the gate, I received a call from the C.O. City and he said that don't go there or your will be put behind bars. – (Shame -Shame-Shame by students). Since our childhood we all are taught that we will neither become Hindus nor Muslims, but humans and our Mota Bhai teaches us that we will become Hindus, Muslims, but not humans. How would they know the meaning of Constitution, since the day RSS came into being in 1928, they don't believe in Indian Constitution?…We are humans first. Islam has taught us that our deeds should be right. Our intentions should be right. You choose the path and God will take you to the destination. Inshallah (if God wills).So, I request you all that you try to reach to your non-Muslim friends, sit and talk to them and tell them we are not the ones who repair cycle-punctures, fridges, mobiles and who marry four times or Jihaadis, Pakistanis. We are also doctors, engineers. Come, sit and eat with us someday for the distances that are created".

After reading the entire text, the HC said: No doubt, some part of the phrases used in the grounds for detention are there in speech, but apparently in different context. The speaker was certainly opposing the policies of the government and while doing so certain illustration are given by him, but that nowhere reflects the eventualities demanding detention. A complete reading of the speech primafacie does not disclose any effort to promote hatred or violence… Our anxiety is only to assess that as to whether a reasonable man could have arrived at a conclusion as arrived by the District Magistrate, Aligarh? Primafacie, the speech is not such that a reasonable man could have arrived at a conclusion as the inference drawn by the District Magistrate, Aligarh".

In Khudi Ram Das Vs. State of West Bengal & 3 Ors., reported in 1975 (2) SCC 81, a three Judge Bench of the Supreme Court while discussing the nature of satisfaction required to be recorded by the executive authorities before preventively detaining a person. While recognizing the grounds on which such a subjective satisfaction could be challenged, the Supreme Court definitely recognised the following grounds of challenge:- (a) non application of mind; (b) dishonest and improper exercise of power; (c) acting under dictation of another authority; (d) if the authority had disabled itself from applying its mind by self-created rules of policy, etc; (e) applying a wrong test and misconstruction of statute; (f) if the satisfaction is not grounded on "materials which are of rationally probative value"; (g) the grounds for satisfaction are such as a rational human-being may not consider connected with the fact in respect of which the satisfaction is reached and must not be extraneous; (h) the action taken must be within the discretion of the authorities that is according to the rules of reason and justice and not private opinion. Thus, it cannot be arbitrary, vague or fanciful but must be legal and regular.The HC finally issued a writ in the nature of habeas corpus to release Dr.Kafeel Khan.

(The writer is Dean, School of Law, Bennett University, and former Central Information Commissioner)