I have full faith in judiciary, but there should be measures to compensate and penalise authorities who misuse powers:  Dr Kafeel Khan

Dr. Kafeel Khan has seen many highs and lows with the Indian legal system. A doctor turned human rights activist, he has been arrested twice and served a long time in jail as an under-trial. Earlier this year, the Allahabad High Court quashed his detention under the National Security Act (NSA) and called the detention bad in law. In a candid conversation with The Leaflet, he opens up about his experience and expectations from the law.

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THERE is a philosophy of service in being a doctor and human rights activist. In a way, you strengthened yourself as the latter by voicing your thoughts at the anti-CAA protest. What are your thoughts on the transition?

After the BRD tragedy, I realised that despite being from the high echelons of society  I was treated like that and wondered what must be happening to people from marginalised backgrounds? That changed my thinking and personality.

After coming out of jail I started touring India. I spoke to people who supported me and they said that anybody could have been Dr. Kafeel Khan.

I realised that the BRD tragedy was just a brutal face of our broken health system. The same year, all over India more than eight lakh kids died.

I asked people- what were their expectations from their government? They had six demands- roti (food), kapda (clothes), makaan (house), health, education, and employment. People have been demanding these for the last seventy years. I am not blaming any particular party, but what do these politicians do?

As a responsible Indian citizen, I felt that I should speak against any injustice done to anyone.

Defenders of human rights today face the danger of being sent to jail. It requires tremendous courage to stand up to the state.  How did you manage to do it?

The jail has become my second home. I have spent more than 500 days for the past three years behind bars. I didn't know of the support I was getting while I was in jail. People's love and support gave me the courage and boosted me to move forward and continue to serve people.

You wrote a letter claiming innocence after the Gorakhpur tragedy. You wrote: "I surrendered to save my family from the humiliation and misery, thinking that I should get justice as I had not done anything wrong."  You were later cleared by the internal committee of your hospital. Similarly, the Allahabad High Court too cleared you and said that your speech did not incite violence. However, in both cases, you had to deal with long periods of incarceration as an undertrial. How do you see 'justice' in this context?

I have full faith in the judiciary, but I believe there should be measures to compensate and penalise those authorities who misuse their powers.

A doctor whose duty was to attend to the patients, and not arrange oxygen cylinders, went out of his way to get oxygen cylinders. He was penalised because the media made him a hero. If I would have not gone that night to arrange cylinders maybe I wouldn't have been in jail.

In his affidavit to the High Court, the supplier said that higher authorities wanted to commission for clearing his dues and so he stopped supplying cylinders. I always say that this would have happened even if it was Dr. Kafeel Mishra, and not Khan because they wanted to save the real culprit.

But it took the judiciary nine months to realise that there was doctor who had nothing to do with medical auctions or medical decisions and he was behind bars.

It is an old saying that justice delayed is justice denied.

They served me with NSA, a law that was made to put people who act against the country behind bars. All these laws are now being misused.

I moved the Supreme Court, but they said to go to High Court first. It took the High Court seven months to decide on this matter.

Judges kept recusing themselves, for reasons that I don't understand. Recusing is done in case of conflict, but what was the conflict with my case?

The Supreme Court then directed the High Court to decide my case within 15 days. The Chief Justice observed that Dr. Kafeel spoke about peace and unity of India, and not about violence. Criticising the District Magistrate's selective approach, the court said that no responsible authority should alter videos like that. But no action was taken against the District Magistrate.

Even the District Magistrate is not at fault because he was following orders from above.

Imprisonment of human rights activists has a deep impact on their family members. Your wife had written to the Chief Justice of Allahabad High Court fearing for your life. In most cases, such as Varavara Rao, we see a lack of communication that is resulting in anguish and anxiety for the family. How would you like to respond to that as a medical professional and as someone who was also incarcerated?

An inquiry was instituted into my wife's letter and a DIG level officer came to meet me. I asked him why are you treating me like a criminal? He said that we are only following orders. When I asked about his oath to the constitution, he replied that if we follow the constitution then we will be treated like you.

Family members suffer collateral damage.

I have been married for 5 years and for 3 years I was in prison.

My kids are the innocent victims. When I went to jail for the first time, my daughter was 11 months old. I missed all the important milestones like when she started talking, walking, running. I missed these things with both my children.

After my release, when she saw me sleeping next to my wife on the first morning, she started screaming. It took her months to realise that I am her father. She called me papa, but she did not understand what papa means.

More than the brutality, losing my job, physical and mental torture, and going to court, the most painful part is that I was not there with my kids. Nothing can compensate for that loss.

My mother cried after my release because she thought that I would never come back. My brother was shot one kilometer away from the Chief Minister's office where the security is so tight. He was crying in pain, but the bullet was only removed after 5 hours. It has been three years since but no arrest or charge sheet has been filed.

The social media and judiciary need to come together to support the family particularly emotionally. The right of the prisoner's family needs to be treated independently.

In a letter from jail, you asked "Why am I being punished…" You wrote about missing your family and seeking to help with the pandemic. What was it that was going through your mind then?

I know that I have not done anything wrong. So, I always wonder why I am being punished.

I had made a video about the virus in January, just a day before my arrest. I know how fragile our health system is.

I have experience of working in ICUs for ten years. Running a ventilator is an art and it takes 4-5 years' experience of operating the machine.

I felt that even if I could save one life, it would be better than sitting behind bars.

Since my release, I have written many times to the government requesting it to give my job back. I have even asked them to accept my resignation so that I can go to work somewhere else because the Medical Council of India has not put any restrictions on me. Nine inquiries by both central and state governments and the High Court have cleared me.

But neither are they revoking my suspension nor are they terminating my services.

The Prison Manual provides many regulations for prison conditions, but very few are implemented. Incarceration also impacts the prisoner's mental health. What are your thoughts, if any, on this and what more can the prison system do for the mental health of prisoners?

Prison laws in India, passed in 1894, is a forgotten law. It is obsolete and not in tune with the present day.

Forget about me, there are hundreds of students behind bars.

Look at Sudha Bharadwaj. Look at Stan Swamy who has to fight for a sipper. Gautam Navlakha was denied glasses. 60- 80-year-old people have to fight for basic amenities. I was lucky to come out of jail.

The conditions inside are inhumane and worse than animals kept in zoos.

Supreme Court says that bail is a right and jail is an exception, but 80% of Indian prisoners are undertrials.

You get watery dal, rice and a few chappatis for food. If you are well off, then your family may send you fruits. So, what happens when you are poor? You become malnourished, fall sick, and catch diseases.

The prisons are overcrowded way beyond capacity. Uttar Pradesh's jails have a capacity for 40,000 but there are 1.5 lakh inmates!

People are sweating and coughing in close proximity.

There is only one toilet and you would have to stand in queue for hours. You can't understand the mental and physical trauma.

You get more space in your graveyard than in prison to sleep.

There were millions of flies and a constant smell from the unclean toilets. Every morning I would take the broom and bucket and clean the toilet properly before using it.

In the night there were mosquitoes because the barracks are open to allow the prison officials to see you, but no mosquito repellants were allowed.

Then there are instances of physical torture and sexual harassment, including sodomy cases. There are so many HIV positive cases in prisons.

Both judiciary and political parties need to come together to reform the system and change the law.

As per the NSA act, your lawyer was not allowed to accompany you to your hearing before the NSA Advisory Board. Do you think a lawyer's presence would have made a difference?

The CD submitted as evidence was modified by the authorities. I didn't know that it had only 4-5 minutes of my speech. I didn't know that I could demand a projector or instrument to see the CD. So, I presented my case to the board.

But when the CD was played in High Court, my lawyer argued that I wasn't given adequate opportunity to defend myself. The whole case turned.

The Chief Justice was shocked to see how the speech had been manipulated.

The time has come to ask the authorities to change the law. The court should also penalise the authorities so that no more innocent people suffer.

There are good and bad people in every system. But it is those people who are in power who are pillars of democracy who need to realise their responsibility.

(Megha Katheria is a sub-editor with The Leaflet.)