Kafeel Khan’s speech does not disclose any effort to promote hatred or violence: Allahabad HC

The court granted his release from detention under NSA while observing that his speech did not incite violence and the detention order came as a response to his bail order

kafeel Khan

The Allahabad High Court, in an expeditious hearing, has granted the release of Dr. Kafeel Khan from detention under the National Security Act (NSA). The bench comprising Chief Justice Govind Mathur and Justice Saumitra Dayal Singh set aside the detention order passed by District Magistrate, Aligarh on February 13, 2019 and the order of extension of the detention period has been declared illegal.

The habeas corpus writ petition was filed by Khan’s mother, Nuzhat Perween after he was arrested on January 29, 2019 for his allegedly provocative speech at Aligarh Muslim University (AMU) during a protest against the Citizenship Amendment Act (CAA). He was booked for promoting enmity on religious grounds under section 153A of the Indian Penal Code and was granted bail by the Allahabad High Court on February 10 but was not released by jail authorities. His family even approached a court in Aligarh claiming contempt of the High Court order and accordingly a fresh release order was granted but before the same could be executed, he was charged under the NSA on February 13 on the orders of the Aligarh District Magistrate, which was confirmed by the UP government. Further, on August 4, his detention was extended for more 3 months, i.e. until November. Under the NSA, a detainee’s detention order can be extended by 3 months each time, till 12 months, without framing charges against him. Khan’s detention could have easily dragged on till February 2021, if not for this release order.

After the detention order was confirmed by the state government on February 24, Khan was provided with a copy of the same on the following day. He then submitted representations in four sets addressed to the District Magistrate, Aligarh, the State Government, the State Advisory Board and the Central Government, which was rejected by the state government on March 4 and by the central government on March 5. Khan was even given an opportunity of being heard by the State advisory board on March 17, a report of which was submitted to the state government which confirmed the detention order again on April 1.

Court’s observations

The court observed thus,

“Preventive detention is an exceptional mode to curtail liberty and freedom of a person in exceptionally rare circumstances. Under Article 21 of the Constitution of India along with the right to life, the right to personal liberty is a precious fundamental right. This precious fundamental right must always be protected.”

The court said it was examining the entire issue involved in this petition with the conceptual understanding of the fundamental rights under Part III of the Constitution while noting, “These rights are golden thread in the fabric, which is further illuminated by extending protection of life and personal liberty under Article 21 of the Constitution of India.”

The court pointed out that no proceedings for detention of Dr. Kafeel Khan were initiated for about good two months from the day he addressed the students at Aligarh Muslim Univeristy. He delivered his speech on December 12, 2019.

The court further made observations on the grounds of detention and the contents of the speech, “A reading of the grounds of detention certainly creates an impression that a provocative speech was given by the detenue, but a plain reading of that reflects otherwise, hence it would be appropriate to go through that.” The Additional Advocate General objected stating that “the satisfaction of the detaining authority is “subjective in nature” and the Court cannot substitute its opinion over subjective satisfaction of the detaining authority”. The bench agreed to this submission while further stating, “However, it does not mean that the court cannot look into the material on which detention is based”. The court further added,

“While assessing “subjective satisfaction of the detaining authority” the Court examining a petition seeking a writ of habeas corpus has to look into the record to examine whether the subjective satisfaction is acceptable to a reasonable wisdom and that satisfies rationality of normal thinking and analyzing process.”

The court found it necessary to quote the entire speech delivered by Khan while observing, “The closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions.”

Analysis of the speech

The court analysed the speech made by Khan and observed,

“The speaker was certainly opposing the policies of the government and while doing so certain illustration are given by him, but that nowhere reflects the eventualities demanding 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 address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence.”

The court said that the District Magistrate appears to have resorted to selective reading of the speech, while ignoring the true intent.

The court further pointed out the delay in invoking charges under NSA against Khan. The court pointed out that, “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 detenue to cause even a simple scar to the peace or tranquility or the public order of the city of Aligarh”.

The court stated that only after Khan was given bail by Chief Judicial Magistrate, Aligarh, did the police official write to the District Magistrate for detention under NSA.

The court relied upon the test laid down by Supreme Court in Khudi Ram Das Vs. State of West Bengal & 3 Ors for the nature of satisfaction required to be recorded by the executive authorities before preventively detaining a person and while considering the scope of judicial review of such an action. The court had laid down the grounds on which subjective satisfaction of the detaining authority could be challenged which included non application of mind; dishonest and improper exercise of power; acting under dictation of another authority; if the authority had disabled itself from applying its mind by selfcreated rules of policy; applying a wrong test and misconstruction of statute; if the satisfaction is not grounded on “materials which are of rationally probative value” and so on.

The high court observed, “Testing the action taken against the detenue on the above principle, it appears other things apart, there is a serious lack of objective material on record as may have given rise to a valid subjective satisfaction with the detaining authority to preventively detain the detenue on 13.02.2020.”

The court’s findings

The court further stated that a speech delivered 2 months prior could not be relevant for the purpose of satisfaction of detention since during the two months Khan neither visited the city of Aligarh nor he made any further or other speech or lecture. The court further held that the state authorities even failed to establish that the speech of December 12, 2019 had such a deleterious effect on the public order in district-Aligarh as had continued to exist up to February 13, 2020, on which date his detention order was issued. The court stated that the detention order was based on mere apprehension of the detaining authority without supporting material on which such apprehension may be founded.

The court further observed that even though grounds for detention were provided to the detenu, for him to submit his representation, the same was given in a compact Disc while not providing any device to play the CD. The transcript of the speech was also not provided. Hence, the court stated that this amounted to 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 also dismissed the ground for extension of detention of Khan twice which was that while in prison, Khan was in contact with the students of Aligarh Muslim University and was instigating to disturb public order of the city. The court observed that there was no material record presented to support this contention.

Further, the extension orders were never served upon Khan and he was only informed through radiograms about his detention being extended. Hence, the court held the extension order to be unsustainable in the eyes of law.

Khan had recently penned down a heartfelt note saying how he was yearning to meet his family and he was hoping he could celebrate his daughter’s birthday. His wish might after all come true. 

The complete order may be read here.



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