On September 1, the Allahabad High Court quashed the detention of Dr Kafeel Khan by the Uttar Pradesh government under the National Security Act. In a brief but tough order, the High Court held that both the original order of detention in February and the subsequent two extensions of the detention were unsustainable in law.
Khan had shot to fame during in 2017, when 63 children died in August in the government hospital in which he was working in Gorakhpur. The deaths occurred after a contractor stopped supplying oxygen to the facility. The media reported that Khan had spent his own money to obtain oxygen cylinders for the hospital. But the Uttar Pradesh government denied that the babies had died due to a lack of oxygen. Instead, Khan was charged with medical negligence, corruption and dereliction of duty and jailed.
On his release in April 2018 after nine months in jail, Khan became a vocal critic of the Adityanath-led Uttar Pradesh government on various matters. In January this year, the Aligarh police filed an First Information Report against him for making a speech at Aligarh Muslim University against the backdrop of the protests against the controversial Citizenship Amendment Act that the authorities claimed was inflammatory. On January 29, he was arrested in Mumbai by the Uttar Pradesh police and taken into custody.
On February 10, the court ordered him to be released, despite the Uttar Pradesh administration vehemently opposing his bail plea. The police did not let him out of jail for two days, forcing the court to pass another release order. In the meantime, the administration quickly moved to detain him under the National Security Act on February 13.
Detention quashed
On September 1, after Khan had been in jail for nine months, the Allahabad High Court quashed the original detention and the subsequent extensions. In its order, the court reproduced Khan’s entire speech delivered in December and declared that it found nothing in it that could disturb public order, the fundamental charge used by the Uttar Pradesh government to keep him in jail.
To keep Khan in jail, the Uttar Pradesh police tried every trick in the book, including denying him records of the detention that would have allowed him to mount an effective judicial challenge.
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, bypassing regular criminal process.
The National Security Act is a successor to preventive detention laws that were framed by the colonial British administration in the 19th century. In a sense, the Act, passed in 1980, is a direct successor to the Maintenance of Internal Security Act used extensively during the Emergency to put political opponents in jail.
Over the last few years, the National Security Act has been invoked even in cases where no real threat to public order has emerged. It is to be noted that there is a marked different between a “public order” problem and a “law and order” problem. Public order, as per the Supreme Court, has wider ramifications as it allows restrictions to fundamental rights to be invoked. A phenomenon is a public order disturbance when the scale of the disturbance is wide and genuinely jeopardises public peace and tranquility.
In recent times, the National Security Act has been invoked against those suspected of cow slaughter and even for individual acts of statue desecration, as had happened in Tamil Nadu in July when saffron paint was thrown on a statue of Periyar . Between June 2017 and September 2018, the Uttar Pradesh government had used the same Act to keep Bhim Army chief Chandrashekar Azad in jail without trial.
The police use the National Security Act because it allows for long periods of detention without trial and suspends important rights of the accused, including the right to legal representation and immediate information about the cause of the arrest.
Mild opposition
While there has been sporadic criticism of the detention law based on individual cases, political opposition has been mild because even state governments find the National Security Act useful to keep a check on political opponents. Commentators have often pointed that the courts have also been lax in striking down detentions under this law. Even in Khan’s case, the courts took nine months to remedy a detention that was clearly politically motivated and arbitrary.
The National Security Act has to be dealt with on two fronts. Ideally, it should be repealed. Failing that, political parties could at least seek more checks and balances on the use of the law, which can only happen through Parliament. Second, the higher judiciary should treat preventive detentions as most urgent cases and not allow the state to use the lethargy in the criminal justice system to continue a person’s incarceration.
Most importantly, there has to be strict punishment imposed on officials for using the preventive detention law arbitrarily. This can happen only if the clauses that bestow a high degree of discretion on the officials are withdrawn.
