Allahabad HC asks UP govt to release Kafeel Khan, sets aside NSA on him

The Allahabad High Court has granted relief to Dr Kafeel Khan, setting aside the imposition of the National Security Act (NSA) on him while declaring its extension till November illegal and has asked the state to release Khan from jail with immediate effect.

Khan had been arrested by the UP Police on January 29 from the Mumbai airport, for allegedly delivering an inflammatory speech while addressing students during the anti-CAA protests held at the Aligarh Muslim University on December 12. The stringent NSA was imposed on him in February and then extended twice in May and then August, till November. The Supreme Court on August 11 had asked the Allahabad HC to expedite hearing of the Habeas Corpus plea filed for Khan, and give a verdict within 15 days of the hearing.

Discussing the imposition of the NSA that is enacted for preventive detention, the HC observed that it is an “exceptional mode to curtail liberty and freedom of a person in exceptionally rare circumstances”, adding that the precious right to life guaranteed under Article 21 must always be protected.

While examining the speech given by Khan and also quoting the entire speech in its order, the court dismissed the state’s allegation that it was intended to promote violence or threatened Aligarh’s peace.

“No doubt, some part of the phrases used in the grounds for detention are there in speech, but apparently in different context. The speaker was certainly opposing the policies of the government and while doing so certain illustration are given by him, but that no where reflects the eventualities demanding detention. A complete reading of the speech primafacie does not disclose any effort to promote hatred or violence,” the court ruled.

More importantly, it said that while the speech was delivered by Khan in December, no proceedings for detention were initiated against him for “good two months from the day he addressed the students”.

It said even if the court accepts the content of the speech to be sufficient ground for detention, it cannot be overlooked that during the two months between his visit to the university when he addressed the students up till February when he was slapped with NSA and detained, Khan neither visited Aligarh nor did he make any other speech or lecture nor there is any material offered by the state to prove that he was going to commit any act that may have disturbed public order.

“Thus, the contention based on the contents of the lecture delivered by the detenue on 12.12.2019 apart, the State authorities have failed to discharge their bounden burden to establish that the lecture delivered by the appellant on 12.12.2019 had such a deleterious effect on the public order in district-Aligarh as had continued to exist up to 13.02.2020 necessitating preventive detention of the detenue, on that later date,” the court ruled.

Supporting its decision to extend the NSA, the state had alleged that even while in prison, Khan was in touch with students of AMU and was instigating them to disturb law and order in the city. Dismissing the allegation, the court said such an allegation was not supported by any evidence as Khan was in state custody where he cannot possess any electronic device to interact with the world outside and there is also no record available of him sending messages outside through visitors.

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