Freedom or No Freedom for Dr. Kafeel Khan

4 Sep 2020  Read 521 Views

On Tuesday, the Allahabad High Court held that the speech made by Kafeel Khan at Aligarh Muslim University on December 13, 2019, amidst anti CAA protest doesn’t promote hatred or violence. It is nowhere threatening the peace and tranquillity of the city of Aligarh. Moreover, it gives a call for national integrity and unity amongst citizens. 

Khan had first come into the news in 2017 august when he supplied oxygen to the dying infants by paying out of his own pockets in Baba Raghav Das Medical College and Hospital Gorakhpur. Despite turning out to be a Hero, he was arrested as it was claimed that such a shortage of oxygen supply was due to his negligent act. Later again he was exonerated of the charges as no material evidence was found against him.

The present habeas corpus case was filed by Mr Khan’s mother, NuzhatParween. She had first approach Supreme Court in March 2020 seeking the release of his son. The SC disposed of the plea with the direction that Allahabad HC is the appropriate forum to deal with the matter.

The Bench of Chief Justice Govind Mathur and Justice SaumitraDayal Singh held that the speech made by Dr Kafeel if heard by a reasonable man should not draw the same inferences as the District Magistrate of Aligarh did. Later due to which on 13th February detention orders were passed against him under the National Security Act.

The Bench observed that the state has failed to establish the charges against National Security Act as bringing the detention after two months of the incident is a little fall back for the damage to be created by a speech. It should not be punitive detention after the consequence of damage is deleted. Apart from it, the court observed that there is no material evidence to record that the incident occurred on 13.10.2019 and 15.10.2019 was due to the speech made by Kafeel khan on 12.10.2019 and for which detention orders were released after two months.

Timeline of Complete Incident 

Dr Khan was arrested this year for giving the proactive speech at Aligarh Muslim University on December 13. 2019 against anti-CAA protests. Notably, he was granted bail by the Chief Judicial Magistrate of Aligarh on February 10, 2020. Only after his bail DM of Aligarh initiated the process of detaining under National Security Act, 1980.

The following observation brought the court to its conclusion that there was an absence of a causal link between the Act and the detention orders given under NSA.

Further, on the aspect of disclosing the grounds of arrest, Mr Khan was not supplied with his grounds of detention, and thus he was deprived of the opportunity to submit representation under Art 22(5) of Constitution of India. Such non-supply of material has led to the grave violation of fundamental rights guaranteed under Art 22 of the Constitution.

Analysis of the situation 

The situation here might look crystal clear, but there is always more to a story. Stating that our approach is to understand the legal front of the situation. Giving proactive speeches and holding such people under NSA act or sedition charges is an authorised right available to the government. But it is expected that such rights should only be exercised in rarest of the rarest forms. Considering the present situation, it was a little deliberative on the part of Uttar Pradesh government to act in such a lawless manner.

Next, that preventive detention is an executive-driven process. It is the power given to executive officials to act when there is a threat to public order. In such cases executive requires that in the subsequent challenge to a detention order, the judges cannot substitute their mind for the subjective satisfaction of the executive officer. At the same time, however, this doctrine of respecting the subjective satisfaction of executive is not a license for abdicating the judicial function entirely when considering a challenge to preventive detention. Therefore, the court can interfere with determining the validity of the act of the executive. Herein it was wrong and beyond the process of law that needs to be followed.

In case of Ramesh Yadav v. District Magistrate, the detention order under NSA for defeating the imposition of bail order has already been negated. Similar was the situation in this case. The detaining authority was apprehensive that the detenu on the release of bail would again carry out his criminal activities. If that was the apprehension, the challenge against the bail order should be made before a higher forum. Merely on the ground of bail, the passing of detention order under NSA is not an approved practice. Therefore, in the current situation, it could be well established that the order of detention is not sustainable.

A further point of discussion is now that when his detention is declared illegal, should he be liable for compensation. A prerogative approach would be that he is awarded compensation not only under the civil law but also under constitutional law. There have been several precedents set on the issue, such as Rudal Shah v. State of Bihar, where Rudal Shah was illegally detained by the State Authorities. He was acquitted by the Sessions Court of Muzaffarpur on June 3, 1968, but was released from the jail on October 16, 1982, after 14 years. So, he filed a writ against his illegal incarceration and compensation for the period. The court held that the apex court could pass a judgement under Art 32 for the compensation in case of infringement of fundamental right if justice so requires.


When the point comes about the safeguarding of fundamental rights against illegal detention under Art 20 and 21 of the constitution, it is established by the court of law that Right under Art 20 and 21 isn’t absolute and falls under reasonable restriction, but such restriction should be fair, just and not arbitrary. That being said, none of the above requisites was followed in the present case.

About the Author: Abhilasha Jha | 12 Post(s)

Graduated from Nluo in 2020. Bears core interest in constitutional law. She is also very much interested in teaching law. Worked as a legal content writer for several other platforms before joining finology legal.

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