Apoorva Mandhani 

Three years ago, Dr Kafeel Khan was hailed as a hero, when witnesses credited him with saving children at Gorakhpur’s BRD Medical College amid an oxygen shortage crisis on the night of 10 August 2017 that killed 60 of them.a man sitting in front of a curtain© Provided by The Print

But things took a turn for the worse days later when, on 22 August, he was suspended from his lecturership and blamed for these 60 deaths, instead.

Since then, he has spent nine months in jail, been absolved of all charges, probed again for spreading “misinformation” and making “anti-government” political comments during the period of his suspension, booked again for “inciting hatred” through a speech at an anti-Citizenship (Amendment) Act protest at Aligarh Muslim University, been arrested, then granted bail, and then slapped with the draconian National Security Act, 1980, under which he remains in jail.

Khan has spent all but the first 28 days of 2020 in jail — a total of 180 days as on 26 July  with the next hearing in his case set to be held Monday, 27 July. The case is based on his mother’s habeas corpus plea, which was filed in the Supreme Court and subsequently delegated to the Allahabad High Court, but delayed due to the Covid-19 pandemic and the consequent lockdown.

In the interim, there have been demands for his release from various quarters, such as 99 former IAS, IPS and IFS officers, and even the United Nations. But a combination of the 40-year-old preventive detention law, judicial delays, Covid-19, and what an expert called “retribution”, seems to have ensured that Khan stays in jail.

Speech, bail and three release orders

Khan gave a speech at AMU on 12 December 2019, and an FIR was registered against him the next day under Section 153A of the Indian Penal Code (promoting enmity between different groups on ground of religion). The FIR blamed his speech for trying to “disrupt the harmony between the communities”, and said it was “also likely to create 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 references to “mota bhai (the Gujarati term for big brother)” and the RSS.

He was arrested more than a month later, on 29 January, and was granted bail by the Aligarh chief judicial magistrate on 10 February. But he wasn’t released for the next three days, despite three release orders from the magistrate.

Instead, on 13 February, he received the news that he had been charged with the NSA, and would remain in jail for at least three more months, under Section 3(2) of the Act.

The detention order, passed by District Magistrate Chandrabhushan Singh and accessed by ThePrint, said detaining Dr Kafeel Khan was necessary to “prevent him…from engaging in activities that are prejudicial to the maintenance of public order”.

The detailed grounds for his NSA detention, communicated by the office of the DM, cited the AMU speech and blamed it for students clashing with the police on 15 December while protesting against the CAA. It stated that “through discreet inquiry by the district police and the LIU (local intelligence unit) Aligarh”, it had been found that there was a “strong and complete likelihood” of Khan re-entering Aligarh and instigating students, “thereby posing a serious threat to the prevailing public order”.

The day before the initial three-month period was to get over in May, Khan’s detention was extended by another three months. This is because the NSA says the government can only pass a detention order for a maximum period of three months at one go, but the total period of detention can be 12 months.

Provisions of NSA and criticism

The NSA has faced widespread criticism, especially for the procedural differences with normal criminal law.

If arrested under normal criminal law, an accused is guaranteed certain basic rights, including the right to be informed of the reason for the arrest, and the right to bail. The person has to be produced before a court within 24 hours of arrest, and cannot be denied the right to consult and be defended by a legal practitioner of his/her choice.

But none of these rights are available to a person detained under the NSA.

A person can be kept in the dark about the reasons for his/her arrest for up to five days, and in exceptional circumstances, not later than 10 days. Even when providing the grounds for arrest, the government can withhold information whose disclosure it considers to be against public interest. The arrested person is also not entitled to the aid of any lawyer in any matter connected with the proceedings before an NSA Advisory Board, which is constituted by the government for dealing with cases under the Act.

While experts have alleged misuse of the Act on several occasions, the exact number of detentions under the NSA is unknown because the National Crime Records Bureau does not include cases under it, as no FIRs are registered.

UP NSA Advisory Board

The NSA allows the central government and each state government to constitute one or more advisory boards. These boards are supposed to have three members, of which the chairperson necessarily needs to be someone who is or has been a judge of a high court. The other members can be people who have been or are qualified to be appointed as high court judges.

Khan’s lawyer Irfan Ghazi told ThePrint that the NSA Advisory Board that considered his case comprises Allahabad High Court’s Justice Devendra Kumar Upadhyaya as chairman, and former high court judges Shrikant Tripathi and B.K. Srivastava as members.

While the Act says the board can hear the person detained, it doesn’t allow him/her to be represented by a lawyer. According to Ghazi, the board had heard Khan before submitting its report to the government. The hearing, he said, went on for an hour, with representatives on behalf of the DM and the SSP also present.

The law further says that the proceedings of the advisory board and its report shall be confidential, barring the part in which the board has given its opinion on whether there is sufficient cause for the detention.

In Kafeel Khan’s case as well, the only reference to the board was made in the extension order, which said there was “sufficient cause” to detain him.

‘Very strict judicial intervention required’

Delhi-based lawyer Sarim Naved told ThePrint that the “problem with the NSA is that it gives all the discretion to the executive”.

“But when the executive seems to have gotten used to misusing these very powerful laws, what is required is a very strict judicial intervention,” he said.

Naved also asserted that the NSA is “not meant for people like Kafeel Khan”.

“NSA is meant for people who are literally such a threat that the authorities needn’t bother with the niceties of the criminal law… Some doctor, who gave some speech in Aligarh, cannot come within this definition,” he said.

Senior advocate Sanjay Hegde told ThePrint that in Khan’s case, “preventive detention is being used as retribution for having dared to go against the system”.

“It is clear that NSA was slapped on him because he was granted bail in the ordinary courts. NSA is preventive detention. Now Kafeel Khan, other than supplying oxygen to kids, has no criminal antecedents, except what the state of UP has continually sought to prove against him and has not succeeded in a court of law,” Hegde said.

‘Can NSA authority overrule a court order?’

Notably, the Aligarh Chief Judicial Magistrate’s order granting bail to Kafeel Khan in February acknowledged the prosecution’s apprehension that he might commit the same offence again if he is released on bail, but said that in that case, “the prosecution is free to revoke bail”. But the NSA order was passed nevertheless, ensuring that he is not released even after the court order.

This goes against a 1985 Supreme Court order setting aside an NSA detention which was passed on the grounds of apprehension that the person would carry on his criminal activities if he was released on bail.

The apex court said in case of such an apprehension, the right course of action would be to oppose the bail application in court, or to challenge the grant of bail in a higher forum.

Supreme Court advocate-on-record Anas Tanwir said: “If a person has been granted bail for the same offence, can the authority imposing NSA overrule that order of the court effectively?”

Tanwir said if there was an apprehension of Khan committing the same offence again, the authorities could also impose a condition barring him from entering the city, or cancelling his bail. “I find it really problematic to impose NSA on the same facts and circumstances on which the court has granted bail. This is effectively overruling the court,” he added.

Took 2 months to transfer documents from SC to HC

After Khan’s detention under NSA, his mother approached the Supreme Court on 28 February with a habeas corpus plea, asking for her son to be released and for quashing the NSA order against him. The Supreme Court transferred the case to the Allahabad High Court on 18 March.

Sources, however, told ThePrint that after this, it took around two months for the documents to be transferred from the Supreme Court to the high court, due to the Covid-19 pandemic and the consequent lockdown. This was confirmed by court records, which showed that the first hearing in the case at the high court took place only on 16 May.

The matter was last posted for 15 July, but was deferred to 22 July because of the disrupted functioning of the high court due to Covid-19.

Naved said “it’s tragic even if Covid is one of the reasons for the delay”.

“Somebody’s liberty cannot be held hostage to external factors. The system has to make sure that the hearing happens. We surely have enough technology right now,” he said.

Naved asserted that these hearings need to be fast-tracked, asking: “If the detention itself is for a year, then what’s the point (if the case takes very long to be heard)?”

courtesy The Print