Lucknow: “Although late, my brother will walk out of jail now. This decision will become history and we all are very happy with this.”

That was what Adeel Khan, elder brother of Uttar Pradesh (UP) doctor Kafeel Khan told Article 14, moments after the Allahabad High Court ordered the release of the government paediatrician and lecturer from jail after 217 days and 14 deferred hearings over the last six months.

“I welcome the decision of the court,” said Adeel Khan. “We had faith in the Indian judiciary.”

“Now we will go to court to get Dr Kafeel reinstated in the BRD Medical college because he was cleared from all the charges and also for the security of our family,” said Adeel Khan. “If the government of UP challenges this decision then we will face it but it is very unlikely to happen that the government will challenge this.”

Adeel Khan said he expected his brother to walk out of jail either by the evening of 1 September or the morning of 2 September.

In a 42-page judgement that took apart the government case for Khan’s detention, Chief Justice Govind Mathur and Justice Saumitra Dayal Singh revoked the charges of National Security Act, 1980, issued against Khan for a speech he delivered at Aligarh Muslim University, were he criticised the government during protests against the Citizenship (Amendment) Act, 2019.

The bench set aside the 13 February 2020 order of detention passed by Aligarh district magistrate and confirmed by the state of UP.

“We are having (sic) no hesitation in concluding that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law,” the judgement said, adding that the speech "no where” threatened “peace and tranquility of the city of Aligarh”, as the government had alleged and there was no “causal link” between the speech and violence at the Aligarh Muslim University.

“The address gives a call for national integrity and unity among the citizens,” said the judgement.” The speech also deprecates any kind of violence.”

“It appears that the District Magistrate had selective reading (sic) & selective mention for few phrases from the speech ignoring its true intent,” said Justices Mathur and Singh. “.We (have) no hesitation in concluding that neither detention of Dr. Kafeel Khan nor extension of the detention are sustainable in the eye of law."

‘Right To Liberty A Precious Fundamental Right’

Justices Mathur and Singh made repeated references to constitutional guarantees of the right to liberty.

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

“The nation of India is weaved (sic) as a democratic republic where social, economic and political justice to every citizen is secured, where liberty of thought, expression, belief, faith are constitutionally protected...where every citizen is at equal status with equal opportunities,” said the judgement.

"The speaker was certainly opposing policies of the government and while doing so certain illustration (sic) are given by him, but that nowhere reflects the eventualities demanding detention. A complete reading of speech (sic) prima facie does not disclose any effort to promote hatred or violence."

A habeas corpus plea filed by Khan’s mother Nuzhat Perween on 8 May had said that the detention and the extension of that detention of Khan under the NSA were “illegal”.

The court put Khan’s entire speech on record to show that it advocated peace, inter-religious harmony and preached no violence. The court first quoted a part of the speech that is part of the government’s detention order:

“Mota Bhai [Khan refers here to Home Minister Amit Shah] teaches us that we will become Hindu or Muslim but not human by CAA, we will be made second class citizens after that by 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 we will have to fight”.

It said accepting the government’s request to close the “examining record.. 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”.

Kept In Jail Despite Previous Release Order

Khan was arrested from Mumbai airport on 29 January by a special task force of the UP police and imprisoned in Mathura jail.

He was granted bail on 10 February by Aligarh’s chief judicial magistrate but was not released by jail authorities despite a special message that the chief magistrate sent to the jail with Khan’s release order, directing the jailor to speed the release process.

Three days later, the Yogi Adityanath government brought charges under the NSA, which does not define the term “national security”. What it does is define situations in which an order for detention under the NSA may be passed. These include threats to the defence or security of India.

Section 3 (2) of the Act, under which Khan was detained, empowers the government to detain a person “with a view to preventing him from acting in any manner prejudicial to the security of the state or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained”.

Time Wasted In The Midst Of A Pandemic

Harjit Singh Bhatti, president of Progressive Medicos and Scientists Forum, an advocacy, told Article 14 that he was happy at news of Khan’s bail but unhappy with the justice system.

“He has got bail after spending six months in jail and this was when the world was reeling under Covid-19 pandemic,” said Bhatti. “I am unhappy with the justice system as his hearing was deferred for 14 times. He could have helped a lot of poor people if he would have been out.”

Khan was suspended from UP government service when the sudden stoppage of oxygen on 10 August 2017 killed more than 60 children suffering from encephalitis at the Baba Raghav Das Medical College in the eastern UP town of Gorakhpur, 270 km northeast of state capital Lucknow.

After he spent almost nine months in prison for alleged medical negligence, a government-appointed inquiry exonerated Khan in September 2019.

(Saurabh Sharma is an independent journalist based in Lucknow and a member of 101Reporters.com.)