Dr Kafeel Khan vindicated: a quick look at what the Court said

Kafeel Ahmad Khan

By Ayan Gupta

The Allahabad High Court, in a celebrated order, dropped the charges under Section 3(2) of the National Security Act, 1980 [“NSA”] against Dr Kafeel Khan. Dr Khan had been arrested in the aftermath of a speech given by him on 12 December 2019 at the Aligarh Muslim University [“AMU”] campus, against the Citizenship Amendment Act, 2019 [“CAA”].

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In the aftermath of the speech, the Uttar Pradesh police charged him with promoting enmity between different groups on the basis of religion. The relevant part of the speech, based on which the charges were filed, was

“Mota Bhai teaches us that we will become Hindu or Muslim but not human by CAA, we will be made second class citizens after that by the implementation of NRC they will trouble you by saying your father’s documents are not correct you will be made to run around. This is a fight for existence and will have to fight.”

In the aftermath of these charges, Dr Kafeel was arrested by the police, two months later, in February of 2020. After his arrest, his bail application was approved by the District Magistrate [“DM”]. Immediately after the bail order, the Deputy Inspector General, Aligarh requested the DM to pass an order for preventive detention under Section 3(2) of the NSA, which allows for a person to be detained when the Central/State Government is satisfied that a person is “acting in any manner prejudicial to the maintenance of public order.”

Accordingly, the DM passed an order for preventive detention reasoning that the violence which took place in Aligarh on 13 December 2019, a day after Dr Khan’s speech, was caused directly as a result of his speech, and that thus, he caused disturbance to public order. Further, the DM stated that

Through discrete inquiry by the district police … it has been brought to my knowledge that upon being released on bail there is a strong and complete likelihood of your re-entering district Aligarh and further instigating the students by coming to AMU thereby posing a serious threat to the prevailing public order.”

The order did not provide any reasoning as to how Dr Khan’s speech instigated the violence, or on what basis did the district police reach the conclusion that Dr Khan may further instigate violence post his release from Jail.

In this context, after Dr Khan’s appeals to the State and Central Government had been rejected, his mother filed the present petition, which landed before the Allahabad High Court.

The petitioners argued that

  1. there is no evidence to reach any of the conclusions laid down in the detention order, and further, that the detention order was passed in order to frustrate the approved bail application of Dr Khan;
  2. The detention order is bad in law as there was no opportunity afforded to Dr Khan to make a representation against the order and that the grounds of the order were not communicated to him;
  3. Finally, that the detention of Dr Kafeel Khan deserves to be revoked as the State of Uttar Pradesh as well as the Central Government failed to decide expeditiously the representation submitted by Dr Khan.

On the other hand, the State argued that to pass a detention order under Section 3(2) of the NSA, the DM only is required to record his subjective satisfaction, and thus, the HC cannot substitute its own reasoning for that of the DM. In effect, the state argued that the act gave the DM unrestrained power and that subjective satisfaction is not bound by any limitation, and not subject to judicial review.

The Court, however, while agreeing with the State that it cannot substitute the DM’s decision for its own, held that subjective satisfaction does not mean that any decision of the DM based on his whim can be sustained. It clarified, by relying on Supreme Court precedent that the “subjective satisfaction” of the relevant functionary, in the context of preventive detention, must be acceptable to a person with “reasonable wisdom” and that it must satisfy rationality of normal thinking.

Thus, in effect, it must be based on some evidence showing a direct causal link between the instigation (or possibility thereof) and the actions of the accused. Moreover, for the subjective satisfaction to arise, the facts and circumstances that were existing on the day and/or at that point in time of passing of detention order had to be borne in mind.

The detention order dated 13.02.2020, that came to be passed two months after the speech was delivered by Dr Khan at AMU, thus, did not fulfil the criteria of subjective satisfaction.

It was held that in Dr Khan’s case, there was no evidence on record to establish any link between his speech and the violence on 13th December. Neither was there any evidence to show that he may try to instigate violence post his release. The Court specifically rejected the Police’s contention that Dr Khan had been in contact with unruly elements in jail too, in order to cause violence in Aligarh. There was no evidence, therefore, for any of the allegations forwarded by the prosecution. Thus, no person of reasonable wisdom could have concluded that Dr Khan intended to or was acting in any manner prejudicial to the public order.

To drive home the point, the Court does a complete reading of Dr Khan’s speech, which has been reproduced word for word in the order. The Court observes that the speech in no manner instigates anyone to violence and that the DM did only a selective reading of the speech, choosing to focus only on one paragraph (as reproduced above). Dr Khan’s speech includes an appeal against causing any violence and instead requests for unity and national integration, which had not been taken into consideration by the DM. The Court specifically observes that, from the speech, there is no prima facie case that Dr Kafeel intended to instigate violence.

The Court further noted that the NSA charges were filed only in February 2020 and that if Dr Kafeel would have intended to instigate violence, he could’ve easily done so in the 2 months he was roaming free. Further, it was also held that not providing Dr Khan with the notice of preventive detention, and giving him a CD of his speech without any means to play the same, amounts to non-supply of material.

For the above said reasons, the Court concluded that Dr Khan’s detention under Section 3(2) of the NSA is unsustainable in law. The court also held the extension of detention to be illegal, as orders of the extension were never served upon the detenue.

It is noteworthy that the Court refused to rely on any of the insinuations offered by the Police, in the absence of any evidence to support such claims. It instead chose to give supremacy to the Liberty, which it called the “mother of other Fundamental Rights.

Ayan Gupta is a student of Law at National Law University Delhi (NLUD).