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The Anticipatory Bail application of Dr. Zafarul Islam Khan, the Chairman of the Delhi Minorities Commission has been admitted in the Delhi High Court and is scheduled for hearing on May 12. He has been arrested on charges of sedition and for promoting enmity for his ‘provocative’ statements on social media. His arrest has been largely condemned by activists across the country. Activists have said that Dr Khan is being targeted by “politicians with ulterior motives and news channel anchors known for spreading bigotry and Islamophobia” who have, “mischievously sought to misinterpret his statement and ridiculously label him as anti-Hindu and anti-India.”
About Dr. Khan
Chairman of the Delhi Minorities Commission, Dr Zafarul Islam Khan (72), is a world renowned scholar, journalist and civil rights activist. He was also one of the first to speak up against the crimes against humanity committed by ISIS, as well as Boko Haram. As a globally acclaimed expert on Islamic studies and the Arab world, his opinions and analysis of issues concerning, emanating from the community are much sought after.
Dr Khan’s name is the latest, and he is certainly the oldest, and the only one holding a Constitutional post, on the list of Muslims to have been charged under Indian Penal Code sections 124 A (sedition) and other criminal sections.
About the case
On April 28, Dr. Khan had written a post on social media appreciating Kuwait for standing in solidarity with Indian Muslims. In this post, while acknowledging the international community’s support, Dr. Khan has emphatically stated that Indian Muslims do not seek or require external help in India thus taking a firm stand of non-interference in India’s internal affairs.
https://www.facebook.com/khan.
This message was then maliciously distorted and falsely broadcasted by certain sections of electronic media. Whereafter, an FIR was lodged against Dr. Khan for this post on social under charges of sedition and for promoting enmity. On May 6, after sunset, he was visited by a police team from Special Cell and Cyber Cell and asked him to accompany them for questioning. The law as per section 160 CrPC mandates that the police cannot compel attendance of a person above 65 years age at any place other than their residence for the purpose of investigation and interrogation. Hence, Dr. Khan insisted that he is ready to cooperate with the investigation and they can question him at his residence but the police did not do so.
Dr. Khan’s Anticipatory Bail Application, filed by his lawyer Vrinda Grover states that “the complaints against the Petitioner have been filed with obtuse motive and malafide is evidenced by the use of social media to attract publicity to the complaints and persons who filed them. There are reports of further complaints filed against the Petitioner for his social media post dated 28.04.2020, and persons have taken to social media to declare that they have filed complaints with the police for registration of further FIRs against the Petitioner.”
Calling the complaint “misconceived”, the application states that the FIR was made on “misrepresentation of facts and an erroneous, untenable reading of the law”. It further states that the complaint has been filed “with a mala fide intention to harass and intimidate” Dr. Khan.
The bail application has been filed under section 438 [Direction for grant of bail to person apprehending arrest] read with section 482 [Saving of inherent powers of High Court] of the Criminal Procedure Code (CrPC) apprehending arrest in the case and also points out to the statutory protection bestowed upon Dr. Khan being a public servant, under the Delhi Minorities Commission Act. Section 14 of the Act provides that, “No civil, criminal or other legal proceedings shall lie against the Chairperson, Members or officers performing functions under this Act, or under authority of the Commission, in respect of anything which is done in good faith or intended to be done in pursuance of this Act by or under the authority of the Commission.”
The charge of sedition
The application further points to the Supreme Court’s interpretation of the offence of sedition. In Common Cause vs Union of India (2016 SCC Online SC 903), the court categorically stated ““the authorities while dealing with offences under Section 124A of the India Penal Code shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh vs State of Bihar (1962 Suppl. 3 SCR 769). In this case, the Hon’ble Supreme Court upheld the constitutionality of Section 124A IPC by narrowly and strictly construing the ingredients of the offence. The Hon’ble Court held,
“…the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence…..Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”
The application further states that Dr. Khan’s post highlighted the plight of the minority population which had been targeted by certain elements in society, and further acknowledged the role of the international fraternity in raising concerns regarding the wellbeing of Indian Muslims. Viewed as a whole, the statement does not allude to any tendency, leave alone incitement, of violence against the government or any section of the population.
Dismissing the charge of promotion of enmity under section 153A of IPC, the application states the offence requires promotion of feeling of hatred or ill-will “between different” religious or racial or linguistic or regional groups. Dr. Khan’s post, however, only refers to “Hindutva bigots”, which is not a religious group or community, but instead refers in this context to persons on social media posting hate speech and propagating communal disharmony.
The Application finally states that as a public spirited individual and a distinguished member of the Muslim Community and since no case is made out against him, no coercive action should be taken against Dr. Khan and he should be immediately released on bail in case of arrest.
The Anticipatory Bail application can be read here
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