Justice Katju: Kafeel Khan's Detention Under NSA Is Illegal

Khan has been accused of creating religious disharmony in a speech made at an anti-CAA rally in AMU.

Dr Kafeel Khan is a medical practitioner who did his MBBS and MD (in paediatrics) from the renowned Kasturba Medical College in Manipal, Karnataka. He later served as a lecturer in the BRD Medical College, Gorakhpur. When several children died in 2017 in the Gorakhpur hospital attached to the medical college, he was arrested and charged for medical negligence. But an enquiry revealed that there was a shortage of oxygen cylinders in the hospital and that Khan, in fact, spent money from his own pocket to obtain some oxygen cylinders and worked overtime during the crisis. It was also found that he had written letters to several authorities informing them of the shortage of oxygen cylinders, but to no avail.

The Indian Medical Association, several doctors of AIIMS, Delhi, and over 200 health professionals and allied activists wrote letters to the chief minister of UP, Yogi Adityanath in Dr Khan’s support. He was released on bail in April 2018 after spending 9 months in jail, and ultimately in September 2019, he was absolved of charges.

On December 12, 2019, Dr Khan gave a speech in an anti-Citizenship (Amendment) Act (CAA) rally in AMU, Aligarh, regarding which an FIR was lodged on December 13, allegedly for creating religious disharmony (Sections 153A and 295A of the IPC). He was then arrested on January 29 at the Mumbai airport by the UP police and brought him to UP. He was granted bail by the Aligarh chief judicial magistrate on February 10, but was not released from the Mathura jail. Ultimately, a preventive detention order was passed against him three days later under the National Security Act.

Also Read: The Kafeel Khan Story: How the Exonerated Gorakhpur Doctor Spent the Last 2 Years

I have carefully listened to the speech Dr Khan made at AMU in December. He has nowhere spoken against any religious community. All that he said was that ‘we (i.e. Indian Muslims) are 25 crore (250 million) people, and we cannot be scared by lynching or making laws’ (“Tumhaari auqaat nahi ki tum humse kuch chheen sakte, hamein daraa sakte, hamein hataa sakte. Hum 25 crore hain”.)

Dr Khan was voicing the feelings of many Indian Muslims who have the impression that this government is anti-Muslim. No doubt his speech was strongly emotional, but surely in a democracy, people should be allowed to vent some steam out. I do not see how this speech could attract section 153A of the IPC, promoting disharmony on the ground of religion etc, or section 295A IPC, outraging religious feelings, a criminal offence.

But even assuming those provisions were attracted, does it justify passing a preventive detention order under the NSA? It may be mentioned that in preventive detention, no trial is held nor a lawyer permitted. Hence it is undemocratic.

Aligarh Muslim University. Photo: PTI

The Supreme Court’s stance

In Rekha vs State of Tamil Nadu, a three-judge bench of the Supreme Court over which I presided observed.

“Preventive detention is by its nature repugnant to democratic ideals, and an anathema to the rule of law. No such law exists in USA or England, except in war time. Since, however, Article 22(3)(b) of the Indian Constitution permits preventive detention, we cannot hold it illegal, but we must confine the power within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution, which was won after long, arduous, historical struggles. It follows therefore that if the ordinary law of the land ( the IPC and other penal statutes ) can deal with the situation, recourse to a preventive detention law will be illegal. Whenever an order under a preventive detention law is challenged, one of the questions which the Court must ask is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.”

It was also held in the Rekha case:

“No doubt it has been held in the Constitution Bench decision in Haradhan Saha’s case that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the Constitutional scheme in Articles 21 and 22. Article 22(3)(b) is only an exception to Article 21, and is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before convicting a person a trial must be held in which he must be given opportunity of placing his defense. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the criminal law ( IPC etc ) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.”

With regard to Dr Khan’s speech on December 12, 2019, firstly I do not see how it attracts 153A or 295A IPC. Secondly, even if it does, surely those provisions are sufficient to deal with the situation. The preventive detention order under the NSA is therefore clearly illegal, and should be struck down by the court.

Dr Khan and his family have been victimised by the government. His brother was shot in 2018, but luckily survived. He and his family have been bankrupted. Dr Khan has said that people have stopped doing business with his family for fear of antagonising the chief minister.

Jinhe naaz hai Hind par woh kahaan hain? (Where are the people who have pride in India?)