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The Allahabad High Court on Tuesday, 1 September, revoked the National Security Act (NSA) charges against Dr Kafeel Khan, and directed his immediate release.
The order by a Division Bench of Chief Justice Govind Mathur and Justice Saumitra Dayal Singh read:
“The order of detention dated 13 February 2020 passed by district magistrate and confirmed by the state of Uttar Pradesh is set aside. The extension of the period of mention of detenue Dr Kafeel Khan is also declared illegal. A writ in the nature of habeas corpus is hereby issued to release Dr Kafeel Khan, the detente from state custody forthwith.”
We Hugged Each Other and Cried: Kafeel’s Brother
"The moment we got to know about the judgment, all of us, my mother, Kafeel's wife, Shabista, all of us hugged each other tight and cried,” Adil, Kafeel Khan’s brother told The Quint.
Hailing the verdict as 'the most historic judgment by Allahabad High Court,' Adil said: “We are extremely happy, we had been waiting for this. It feels like there is no other good news like it."
"For over seven months, a doctor has been tortured time and again, but what was really his mistake?" Adil asked.
“We had not explicitly told the children about his jail (time) till now. They have been under the impression that he is working in one of his camps, but they had an idea. We’re all going to meet him now, they will finally see their Abba (father) after very long.”Adil, Kafeel Khan’s brother
"It's very important that we meet him today and get him out as soon as possible, because as you know, several attempts will be made to prevent him from being released. If the state seeks a stay, we will see to it when it happens,” said Adil.
WHAT DID THE COURT SAY?
Quoting Dr Kafeel Khan’s speech from 12 December 2019 at Aligarh Muslim University, on the basis of which he was detained, the court said:
“A complete reading of the speech primafacie does not disclose any effort to promote hatred or violence. It also no where 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. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent.”
The court further considered the fact that even the NSA is supposed to allow preventive detention, ie, in cases where the person is considered an active threat – but Dr Khan’s speech was made 2 months before the government sought his detention under the Act. Moreover, no material was placed on record to actually show he was a threat, and even the UP Police had not accused him in the charge sheets for the violence that took place in Aligarh on 13 December 2019.
The NSA order therefore was an after-thought, passed after Dr Khan got bail in the regular case against him:
“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. It is only after passing of the bail order by the Chief Judicial Magistrate, Aligarh,the police officials and the District Magistrate, Aligarh initiated the process for detaining Dr. Kafeel Khan under the National Security Act,1980.”
The bench also pointed out that the material that needed to be provided to Dr Khan, whether the transcript of his speech that the government thought was dangerous, to even the actual orders extending his detention (rather than just radiograms saying that these would be sent to him), were not provided.
“The order of detention dated 13th February, 2020 passed by District Magistrate, Aligarh and confirmed by the State of Uttar Pradesh is set aside. The is also declared illegal,” said the court.
BACKGROUND
Dr Kafeel Khan was arrested on the night of 30 January with assistance from Mumbai Police at the airport when he arrived in the city to attend anti-CAA protests.
An FIR was registered against Khan under Section 153-A (Promoting enmity between different groups on ground of religion) of the Indian Penal Code (IPC) at the civil lines police station in Mumbai on 13 December.
According to the FIR, Khan had said in his speech that “‘Mota bhai’ teaches us to become Hindu or Muslim but not human beings.”
Dr Khan was granted bail by the Chief Judicial Magistrate in Aligarh on 10 February, and his release was ordered immediately. However, the police failed to release him on time, and then on 13 February a detention order under the NSA was passed against him. His detention under the NSA was extended twice, most recently on 22 August.
The NSA allows preventive detention of up to one year in total, but can only be extended three months at a time.
Dr Khan’s mother, Nuzhat Parween, filed a habeas corpus petition for her son’s release in the Supreme Court initially, which asked her to file it in the high court first as a more appropriate remedy. After several adjournments, the case was listed for final hearing on 27 August. After two days of arguments, the bench had reserved its verdict.
Khan, hit the headlines first after the infant deaths tragedy in Gorakhpur's BRD hospital in 2017. Khan was suspended and arrested following the outrage over the incident.
However, a government-led probe had absolved him of the charges of corruption and medical negligence in 2019.
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