Dr Kafeel Khan’s unending ordeal is a vivid illustration of how the BJP has bent India’s institutions to incarcerate anyone who dares to point out the government’s failings.
NEW DELHI — In the three years since Kafeel Khan became famous as the doctor who ran from pillar to post hunting for oxygen cylinders when the district hospital in Gorakhpur ran out of liquid oxygen on 10 August, 2017, the Bharatiya Janata Party government in Uttar Pradesh has never stopped prosecuting and jailing him.
As of date, the 38-year-old paediatrician has been in jail for 480 days. He is currently in jail under the draconian National Security Act, which allows for a person to be held without charge or a lawyer for one year.
Back in 2017 Khan’s actions cast a spotlight on the shocking disrepair in Gorakhpur’s hospital, newly anointed Chief Minister Yogi Adityanath’s electoral bastion, that he had won with ever increasing margins for 20 years. In all, 63 children died at the Baba Raghav Das (BRD) Medical College hospital from 7-12 August that year.
As the numbers of dead children kept rising, the UP government claimed the deaths were due to encephalitis — rampant in the Gorakhpur — not the lack of oxygen. But there was no covering up the fact that the hospital had defaulted on a Rs 68 lakh bill to the liquid oxygen supplier.
Khan was a junior doctor at the hospital, and off duty on 10 August, but an inquiry set up by Chief Minister Adityanath on 12 August, concluded that he was medically negligent and corrupt. He was suspended from the medical college on 22 August and booked for crimes under Indian Penal Code and the Prevention of Corruption Act on 23 August. He was arrested on 2 September and spent almost nine months in the Gorakhpur district jail before the Allahabad High Court on 27 April ruled there was no evidence of medical negligence and granted him bail.
When a UP government inquiry cleared him of medical negligence and corruption on 27 September, 2019, the government summoned the media the next day and denied giving him a clean chit. On 3 October, the UP government announced another departmental inquiry with fresh allegations against him.
Khan, a father of a three-year-old girl and a 15-month-old boy, has been jailed multiple times. The author of two medical books is still suspended from BRD Medical College. Two other doctors, who are out on bail in connection with the liquid oxygen debacle of 2017, have been reinstated. His younger brother has been shot at by unidentified assailants. His older brother has been repeatedly harassed by investigating agencies and his business was ruined for two years.
The Habeas Corpus petition his 65-year-old mother, Nuzhat Perween, filed on 28 February has been heard twice in the Supreme Court and 15 times in the Allahabad High Court.
In the Supreme Court on 11 August, Chief Justice of India S.A. Bobde said the matter involved the “liberty” of the applicant and “requested” the High Court to settle it within 15 days of the next hearing.
Supreme Court advocate Indira Jaising, who is representing Khan, said she was “shocked” by the long delay in processing a Habeas Corpus petition.
“As a practising lawyer, this is unacceptable to me Covid or no Covid,” she said. “Liberty cannot be negotiated away by delay in hearings for any reason whatsoever including technicalities. Access to justice itself is a fundamental right, how can it be defeated by delays?”
Khan’s unending ordeal, for merely doing his duty, and trying to save lives, is a vivid illustration of how the BJP, both in the centre and the states where it is in power, has bent India’s institutions — courts, the police, and the country’s draconian laws — to incarcerate anyone who dares to point out the government’s failings.
Access to justice itself is a fundamental right, how can it be defeated by delays.
Mum’s not the word
Khan did not stay silent in the face of the intimidation that grew after the Gorakhpur tragedy. Leveraging the attention he had received, Khan started speaking about poor healthcare in UP, and emerged as a vocal critic of the BJP governments in the Centre and the state.
In the immediate aftermath of the Gorakhpur Hospital tragedy, Shabista Khan, Khan’s 28-year-old wife and a dentist, said that he wanted to speak up for the parents of the children who had died.
“The parents were poor and never knew what happened to their children. He felt they deserved some compensation from the government,” she said. “He used to tell me that after becoming a father, you begin to see your child in other children.”
But as the authorities continued to harass and humiliate him, Shabista said that speaking out became second nature to him.
“If you jail an innocent man, he will not stay silent. There is a calling that comes from within. There is something called self-respect,” she said. “You slap a man once, twice, three times, he will speak up. If he doesn’t speak, then who will?”
A four page handwritten letter attributed to Khan, published by media outlets in July, said that Mathura Jail where he is lodged was a “living hell,” plagued by overcrowding, lack of toilets, flies and stench.
“I don’t know why I am being punished. I don’t know when I will be able to see my children, my wife, my mother and my brothers and sister. I don’t know when I will as a doctor, fulfil my duties and fight the menace of Coronavirus alongside my brethren,” he wrote.
You slap a man once, twice, three times, he will speak up. If he doesn’t speak, then who will?
National Security Act
In a 23 minute speech he delivered at Aligarh Muslim University on 12 December, Khan told the students that the Citizenship Amendment Act, a law that says only non-Muslims from Afghanistan, Pakistan and Bangladesh, living without documents in India, can apply for Indian citizenship, was deeply hurtful to Indian Muslims, but would not affect them. He said that the Narendra Modi government might use the National Register of Citizens to harass Muslims over their documents, but it would be impossible to throw lakhs of them into detention centres. He advised the students to get necessary documents — birth certificates and land documents for themselves and their parents — ready for when a nationwide exercise is rolled out, and to peacefully resist attempts to divide Hindus and Muslims.
The Uttar Pradesh Police responded by booking him for promoting enmity between two different groups, arrested him at the Mumbai airport on 29 January, brought him by train to Aligarh and then imprisoned him in Mathura Jail.
When Chief Judicial Magistrate Karuna Singh granted him bail on 10 February, the UP Police refused to release him even after she dispatched a special messenger with an order for the jail superintendent to do so on 13 February. That same day, the District Magistrate of Aligarh Chandra Bhushan Singh passed the order for Kafeel to be incarcerated under the National Security Act till 13 May and then extended his detention for another three months till 13 August.
His family on 13 August said they were not aware of any release order.
“He was arrested 45 days after the speech which is alleged to have disrupted ‘public order,’” said Jaising, Khan’s lawyer. “I know that the NSA order was passed only to defeat bail granted on merits.”
“We always celebrate Independence Day, but it feels like a formality, right now. Why is my husband, a doctor, under NSA? If we speak out, if we say anything but ‘yes, yes’ to the government, we are crushed,” said Shabista, his wife, a few days before India’s 74th Independence Day celebrations on 15 August.
Khan, in his 13 December speech, drew a few laughs when he said the local administration had warned him about courting arrest if he spoke at AMU, and then came a round of applause when he said, “Iss zulm ke daur mein, zubaan kholega kaun, agar hum bhi chup ho gaye, to bolega kaun?” (Who will speak in this time of atrocities. If we are also quiet, then who will speak).
Why is my husband, a doctor, under NSA?
The Khan family
The Khan family is landed, wealthy and well-known in Gorakhpur, said Adeel Ahmed Khan, Kafeel Khan’s 40-year-old brother and a businessman.
Their great grandfather was a kotwal of the city, their grandfather was a government employee in the Indian Railways, and their father was an engineer in the irrigation department, who was determined that at least two of his children were doctors, said Adeel.
“My father made academics very important in our house. We did not have a TV until all six of us passed class 12. We had one walkman that we would hide and listen to,” he said.
Khan has three brothers, one of whom is a doctor, a sister who is a PhD in chemistry, and another sister with a Master’s in microbiology.
My father made academics very important in our house.
Khan has named his son Oliver Kafeel Khan after a French football player, Adeel said, but he wasn’t sure about his name. He laughed out loud and said, “Dr Kafeel is an Englishman in India. He loves wearing good suits.”
Kafeel completed his MBBS from Kasturba Medical College in Karnataka on a scholarship, an MD in Pediatrics, and he taught at the Sikkim Manipal Institute of Medical Sciences for three years, said Adeel. “I’m the idiot who called him back to Gorakhpur. All his classmates are abroad earning in crores,” he said.
Adeel, who has always looked out for his younger siblings, remembers Khan to be “very mischievous” when they were growing up, but also completely in awe of their father.
Two stories, Adeel said, captured these two sides of him.
When he was 17 and a circus came to town, Khan volunteered to go into a bear pit and ended up bedridden for a month. When he performed poorly in his class 12 exam, Khan could not show his face to his father and ran away to Lucknow where Adeel was trying to crack the medical exam.
“We were very close to our father,” said Adeel. “We had always seen him taking care of his father. Children see what they learn.”
Their father died of a cardiac arrest in 2003.
We were very close to our father.
Shooting and arrests
Once a respected family in Gorakhpur, Adeel said that after 2017 even relatives distanced themselves and they cannot find buyers for their properties.
Adeel, an MBA, said he used to run a 3,000 sq feet “all glass showroom” of televisions, refrigerators and washing machines, with five vans that delivered to seven districts and a turnover of Rs 15 crores, but his business came crashing down once the state came after his family.
“Different agencies put me under the scanner and started looking into the business. My business partners left. Customers stopped coming,” he said.
On 10 June, 2018, two unidentified men on a scooty shot at Khan’s other brother, Kashif Jameel Khan, near the famous Gorakhnath temple in Gorakhpur, where the UP Chief Minister is also the chief priest, and happened to be staying for the night. He underwent surgery and survived. No arrests have been made in the case, Adeel said.
A month later, on 3 July, 2018, the UP Police booked Adeel alleging that he opened a bank account using a fake driving licence and photograph nine years previously in 2009.
Two months later, on 22 September, when Khan visited Bahraich district hospital, where 71 children had died between 1 August and 16 September, the UP Police said he was creating a nuisance and arrested him. A day after he was granted bail in Bahraich, the UP Police arrested him in the fraud case along with his brother Adeel.
While he was released after 23 days Khan was let out after 45 days, Adeel said. “I have no words to explain what our lives have been like for the past three years,” he said.
I have no words to explain what our lives have been like for the past three years.
In addition to the allegations of medical negligence, the UP government had accused Khan of running a private practice while he was employed at the BRD and not disclosing it.
Khan, Adeel said, had transferred the ownership of the private hospital to his wife.
In 2011, the Supreme Court ruled that if a state had banned private practice, then a doctor defying the ban could be dealt within the service rules, but could not be accused of indulging in trade or booked under the Prevention of Corruption Act.
Kafeel and eight others — the former chief of the BRD medical college, his wife, the proprietor of the company supplying the liquid oxygen, two clerks, an audit department employee, the chief pharmacist and an anaesthesiologist were booked for various criminal acts and corruption on 23 August, 2017.
‘Did not spare any effort’
It was after midnight on 10 August and Khan was on leave when he learnt through a WhatsApp message that the liquid oxygen supply had stopped, said Adeel. He spent the next 48 hours arranging for ventilators, paying for some from his own pocket, organizing transport, and trying to calm irate parents.
The department inquiry report that not only cleared him of wrongdoing but also recognized his efforts was dated 18 April, 2019, but it was only shared with Khan five months later on 26 September.
500 jumbo oxygen cylinders were procured between 11 and 12 August due to Khan’s “concerted efforts,” including seven that he had paid for but was not reimbursed, Principal Secretary Himanshu Kumar, said in the report.
Khan, the report said, “did not spare any effort” in procuring the oxygen cylinders, and “with a lot of dedication took every possible step” to alleviate a dangerous situation.