Why citizens like Kafeel Khan Need protection under laws against State’s arbitrariness

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The Allahabad High Court quashed the detention of the Gorakhpur doctor Kafeel Khan under the National Security ACT (NSA) as illegal and ordered his immediate release after a period of 7 months. Khan was arrested for delivering a speech during the Anti-CAA protests and charges for promoting hatred and violence and threatening peace and tranquillity were framed against him by the UP government. The speech, the Court observed, in fact called “for national integrity and unity among the citizens”. After grant of bail initially in February Khan was not released and the UP government invoked NSA to keep him in jail. Both the original order of detention and the subsequent two extensions of detention were declared “illegal” by Court.

Khan originally fell into disfavour with the UP government when in 2017 63 children died due to lack of oxygen cylinders in the Gorakhpur government hospital he served. Khan had brought the attention of authorities to the unavailability of medical supplies. He was hailed as a saviour of children by many when he arranged emergency oxygen cylinders at his own expense to treat children. But looking for scapegoats the UP government charged the Muslim doctor with medical negligence and dereliction of duty and jailed him for several months. Khan was released after no evidence of medical negligence was found against him. But as Khan blamed the UP administration for the Gorakhpur tragedy departmental enquiries continued against him. While the role of the administration in the Gorakhpur tragedy was never brought under judicial scanner BJP lost Yogi Adityanath’s long-held MP seat from Gorakhpur after the incident. Khan never appeared to go off the administration’s radar as the UP government insisted that he was not fully absolved, and post his participation in the Anti-CAA protests which the ruling party understood were anti-Hindu and anti-government he found himself in their clutches again.

Khan’s subsequent arrest, prevention from release even after bail by further detention under NSA, denial of detention records to him and continued extensions under NSA point to the fact that the State used every trick in the book just to keep him locked up in an unrestrained exercise of arbitrary powers. Khan has been released now but the fact that the Courts took nine months to order his release is itself disappointing of the justice system. While NSA aided the government in extending his detention for longer periods on this occasion, the fact that he suffered similar ordeals over other frivolous charges in the past point to the lethargy in the criminal justice system. Will Khan’s wrongful arrest and false imprisonment over the years now shift the judicial scrutiny from the individual to the State and hold it accountable? If not, States will continue to arbitrarily use their powers and the lethargic judicial system will continue to fail in protecting the constitutional right to life and liberty of the citizens.

The incarceration of Khan for months under the National Security Act is only one of hundreds of cases across India in which those seen troublesome by the governments are put behind bars for an extended period, sidestepping regular criminal process. NSA has been invoked recently against those suspected of cow slaughter and against members of Tablighi jamaat. Muslims have become an easy target of a pro-Hindu government that sees them as a threat to “national security” or scapegoats them over the spread of the virus.

While the NSA itself must be ideally repealed the Courts must play a pro-active role in guarding the rights of citizens like Khan who often fall victim to the machinations of the government. This can be done by keeping the executive in check and hearing cases especially on preventive detentions on urgent basis.

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