New Delhi: In its judgment quashing the detention of Dr Kafeel Khan under the National Security Act, the Allahabad High Court has passed damning remarks against the state authorities who ordered his detention.
Khan has been in jail since 29 January, when he was arrested for an anti-CAA speech he delivered at the Aligarh Muslim University on 12 December 2019. Initially, an FIR was filed against him on 13 December, for trying to “disrupt the harmony between the communities”.
NSA charges were slapped on him on 13 February for the same speech, three days after he was granted bail in the FIR filed against him. The Yogi Adityanath government confirmed the order of detention against him on 1 April.
On Tuesday, the bench comprising Chief Justice Govind Mathur and Justice Saumitra Dayal Singh said the district magistrate who passed the detention order against Khan “had selective reading and selective mention for few phrases from the speech ignoring its true intent”.
“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? Prima Facie, the speech is not such that a reasonable man could have arrived at a conclusion as the inference drawn by the District Magistrate, Aligarh,” it then ruled.
The bench also said there was a “serious lack of objective material on record” for a “valid subjective satisfaction with the detaining authority” against Khan.
It asserted that the DM’s “subjective satisfaction” — which is necessary for passing an NSA detention order — was not “found to have been reached in a legal and regular manner but on whim and humour”.
The court, therefore, ruled that the “state authorities have failed to discharge their bounden burden to establish that the lecture delivered by the appellant on 12.12.2019 had such a deleterious effect on the public order in district-Aligarh as had continued to exist up to 13.02.2020 necessitating preventive detention of the detenu, on that later date”.
The court was hearing a habeas corpus plea filed by Khan’s mother, Nuzhat Parween, challenging his detention.
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‘Khan’s speech called for national integration’
The court’s judgment also has the complete text of Khan’s speech. It said that through the speech, Khan was opposing the government’s policies. It added that the examples used by him in the speech did not require a 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 tranquility of the city of Aligarh,” the court observed.
“The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence,” it added.
Order passed two months after speech
The Allahabad High Court further pointed out the fact that the detention order was passed two months after Khan’s speech.
“Nothing has been said in the order of detention or the grounds for detention that district administration had any information within the period from 12th December, 2019 to 13th February, 2020 about any effort made by the detenu to cause even a simple scar to the peace or tranquility or the public order of the city of Aligarh,” the court said.
It added that from 12 December 2019 to 29 January, Khan was “roaming free and he had ample time to make all the efforts to damage public order in the city of Aligarh, if he was intending to do so”.
The court also noted that within this two-month period, Khan neither visited Aligarh, nor delivered any other speech and lecture that may have prejudiced public order.
“In absence of any material indicating that the detenu continued to act in a manner prejudicial to public order from 12.12.2019 up to 13.02.2020 or that he committed any such other or further act as may have had that effect, the preventive detention order cannot be sustained,” it ruled.
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Article 22(5) violated
The court also examined Khan’s detention on the ground of whether he was given sufficient opportunity to make a representation against the order.
This is in accordance with Article 22(5) of the Constitution, which makes it mandatory for authorities to “communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order”.
The court noted that Khan was given the order, along with his speech in a compact disk. But he was neither given a transcript of his speech nor any device to play the compact disk.
“In absence of such device the supply of compact disk is absolutely non consequential. It virtually amounts non-supply of the material necessary to submit a representation in accordance with clause (5) of Article 22 of the Constitution of India,” the court ruled.
“Such non-supply of material violates a precious fundamental right of a detenu enshrined under Article 22 of the Constitution. On this count also the detention of Dr. Kafeel Khan deserves to be set aside,” it added.
Over 200 days of detention
A day after he delivered the speech, an FIR was registered against Khan on 13 December under Section 153A of the Indian Penal Code (promoting enmity between different groups on grounds of religion).
The FIR blamed his speech for trying to “disrupt the harmony between the communities”, and said it was “also likely to create a law and order situation”.
Later, Sections 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements creating or promoting enmity, hatred or ill will between classes) were added to the FIR, which referred to certain sentences from his speech, including mention of “mota bhai” (Gujarati for big brother) and the RSS.
While he was granted bail on 10 February, he wasn’t released and was slapped with NSA charges, instead, on 13 February. His detention has been extended twice since. He was to stay in jail until 13 November.
However, with the court quashing his detention, he has been directed to be released immediately, after spending over 200 days in detention.
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Deeply heartening that our beloved higher judiciary is performing its sacred task. Respect.