Dr Khan was voicing the feelings of many Indian Muslims who have the impression that the Government is anti-minority. No doubt his speech was strongly emotional but surely in a democracy people should be allowed to vent some steam

Dr Kafeel Khan is a medical practitioner who did his MBBS and MD from the renowned Manipal Medical College, Karnataka, and thereafter served as a lecturer in BRD Medical College, Gorakhpur.

 When several children died in 2017 in the Gorakhpur hospital attached to the medical college for lack of piped oxygen, he was arrested and charged with medical negligence. However, the enquiry revealed that there was a shortage of oxygen cylinders in the hospital and, in fact, Dr Khan spent money from his own pocket to obtain oxygen cylinders for the patients and worked overtime during the crisis. It was also found that he had written letters to several authorities informing them of the shortage but to no avail. The Indian Medical Association, several doctors of AIIMS, Delhi and over 200 health professionals and allied activists wrote to the Chief Minister of Uttar Pradesh (UP), Yogi Adityanath, in Dr Khan’s support. He was released on bail in April 2019 after spending nine months in jail.

Ultimately, in September 2019 Dr Khan was acquitted by the court which found no evidence against him. Thereafter on December 12, 2019 he gave a speech at an anti-Citizenship Amendment Act (CAA) rally in Aligarh Muslim University (AMU). A First Information Report (FIR) was lodged on December 13 regarding this, for allegedly creating religious disharmony under Sections 153A and 295A of the Indian Penal Code (IPC).

Dr Khan was arrested on January 29 at Mumbai airport by the UP Police, which then took him to the State. He was granted bail by the Chief Judicial Magistrate (CJM), Aligarh on February 10 but was not released from Mathura jail. Ultimately, a preventive detention order was passed against him three days later under the National Security Act (NSA). Anyone who has carefully heard Dr Khan’s speech will bear witness to the fact that nowhere did he speak against any religious community. All that he said was, “We (i.e. Indian Muslims) are 25 crore people and we cannot be removed or scared and you cannot take anything away from us. (Tumhaari auqaat nahi ki tum humse kuch chheen sakte, hamein daraa sakte, hamein hataa sakte. Hum 25 crore hain).”

Dr Khan was voicing the feelings of many Indian Muslims who have the impression that this Government is anti-Muslim. No doubt his speech was strongly emotional but surely in a democracy people should be allowed to vent some steam. I do not see how this speech could attract Section 153A IPC, which makes promoting disharmony on the ground of religion and so on, or Section 295A, IPC which makes outraging religious feelings a criminal offence.

Even assuming those provisions were attracted, does it justify passing a preventive detention order under the NSA? It may be mentioned that in preventive detention no trial is held nor a lawyer permitted. Hence it is undemocratic. In Rekha vs State of Tamil Nadu (2011) a three judge Bench of the Supreme Court observed, “Preventive detention is by its nature repugnant to democratic ideals and an anathema to the rule of law. No such law exists in the US or England, except in war time. Since, however, Article 22(3)(b) of the Indian Constitution permits preventive detention, we cannot hold it illegal. But we must confine the power within very narrow limits, otherwise we will be taking away the right to liberty guaranteed by Article 21 of the Constitution, which was won after long, arduous, historical struggles. It follows, therefore, that if the ordinary law of the land (the IPC and other penal statutes) can deal with the situation, recourse to a preventive detention law will be illegal. Whenever an order under a preventive detention law is challenged, one of the questions which the court must ask is, was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.”

It was also held in Rekha’s case, “No doubt it has been held in the Constitution Bench decision in Haradhan Saha’s case that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law.

This observation, to be understood correctly, must, however, be construed in the background of the Constitutional scheme in Articles 21 and 22. Article 22(3)(b) is only an exception to Article 21 and is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution.

The right to liberty means that before convicting a person, a trial must be held in which he must be given an opportunity of placing his defence. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the criminal law (IPC) will not be able to deal with the situation, then and only then, can the preventive detention law be taken recourse to.”

As regards Dr Khan’s speech, it does not attract 153A or 295A, IPC and even if it does, surely those provisions are sufficient to deal with the situation. The preventive detention order under the NSA is, therefore, clearly illegal and should be struck down by the court.

Dr Khan and his family have been victimised by the Government. His brother was shot at in 2018 but survived. He and his family have been bankrupted. Dr Khan has said people have stopped doing business with his family for fear of antagonising the Chief Minister.

Jinhe naaz hai Hind par woh kahaan hain ab? (Where are the proud citizens of Hind now?)

(The writer is a former judge of the Supreme Court of India.)