Allahabad High Court Sets Aside NSA Detention of Kafeel Khan

The court also observed that the Aligarh district magistrate was 'selective' in reading the 'provocative' speech for which the doctor was detained.

New Delhi: The Allahabad high court said the detention of Dr Kafeel Khan under the National Security Act (NSA) is “not sustainable in the eye of law”, ordering his immediate release.

The division bench of Chief Justice Govind Mathur and Justice Saumitra Dayal Singh also noted that the Aligarh district magistrate had quoted selectively from a speech given by Khan at the Aligarh Muslim University to justify his detention.

The judges noted, according to Bar & Bench:

“We are having no hesitation in concluding that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law.”

According to LiveLaw, the court, concluding that the order of detention is bad, adds:

“The writ petition for the reasons given above is allowed. 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 order comes after the Supreme Court on August 11 asked the high court to decide on the plea for Khan’s release within fifteen days.

Khan, who first came to national attention during the Gorakhpur oxygen shortage tragedy, was arrested in January from Mumbai for an alleged ‘provocative speech’ that he delivered at the Aligarh Muslim University during an anti-Citizenship (Amendment) Act (CAA) protest.

Also Read: Jail, Attack on Family and NSA: Kafeel Khan is Paying the Price for Speaking Up

Though he was granted bail in the case, he was not released. The Aligarh administration then slapped the NSA on him on February 13. Under the law, a person can be detained for up to a year.

The order quotes the entire speech made by Khan to contextualise the comments which the prosecution says were ‘provocative’. The bench found that even prima facie, Khan’s speech “does not disclose any effort to promote hatred or violence. It also no where 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.”

“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 no where reflects the eventualities demanding detention,” the order notes.

The order adds:

“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. 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.”