Will the government compensate Dr Khan for his illegal detention?

Dr Kafeel Khan has had a long journey from being hailed as a hero, who saved infant lives, to being demonised and persecuted by the state. The Allahabad High Court finally granted him bail and declared his detention under the National Security Act as illegal. Ibad Mushtaq, an advocate associated with Dr Kafeel Khan's case, examines the state illegalities pointed out by the High Court to raise the question if the state should compensate the medical practitioner for depriving him of his liberty.

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On the night of 29th January 2020, the Special Task Force of the Uttar Pradesh Police, arrested a doctor from Mumbai under an FIR registered under Section 153A I.P.C. more than 45 days after it was registered. No, the doctor was not on the run and apprehended. No, the doctor was not some master criminal mind or even a white-collar criminal trying to evade law. His name is Dr. Kafeel Ahmad Khan. His biggest sin perhaps was saving the lives of children during the infamous oxygen shortage at the Baba Raghav Das Medical College in Gorakhpur, the home-town of the Uttar Pradesh Chief Minister, Yogi Adityanath. After days of legal battle amidst limited functioning of the courts, the Allahabad High Court, in a judgment authored by its Chief Justice, has found his detention under National Security Act, 1980 to be completely unwarranted and unsustainable.

A division bench of the Allahabad High Court, in a verdict delivered on September 1, has unequivocally held that the detention of Dr. Khan under the National Security Act (NSA)  was utterly unsustainable. It has set aside the order for his detention that was passed by the District Magistrate of Aligarh on February 13, despite him having secured bail on February 10 itself. 

The Chief Justice of the Allahabad High Court specifically criticised the manner in which the Uttar Pradesh government had proceeded in the case. It first registered an FIR on 12.12.2019 and arrested him only on 29.01.2020, after 45 days. It subsequently slapped the NSA, three days after the grant of bail in February. The judgment observed that there was no causal link between the alleged speech in December 2019 and the imposition of NSA in February 2020. 

After observing the entire record pertaining to his detention, the court found  that the grounds of detention were completely silent on the risk to public order on account of the offending act attributed to Dr. Khan. "What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded", the High Court observed.

The Conceptual Understanding of Fundamental Rights

At the very outset, the High Court has articulately observed its conceptual understanding of fundamental rights. The court observed that while preventive detention is an exceptional mode to curtail liberty and freedom of a person, the same must be used in the rarest circumstances. In doing so, the High Court has defined the constitutional scheme of India as having been weaved as a democratic republic where social, economic and political justice to every citizen is secured, where liberty of thought, expression, belief, faith are constitutionally protected, where every citizen is at equal status with equal opportunities. The system of governance is to promote fraternity with assurance to maintain the dignity of every individual as well as unity and integrity of the nation.

Moreover, terming the fundamental rights under Part-III of the Constitution as "golden thread in the fabric", the High Court has held that while the rights themselves may not be absolute, they can only be deprived as per procedure established by law and that any act that causes injury to these valuable rights would be nothing but an effort to weaken the fabric of our nation, a democratic republic.

The Offending (?) Speech

The FIR against Dr. Khan was registered under Section 153A of the Indian Penal Code for Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. Uttar Pradesh Police was itself the complainant. It alleged that on December 12, 2019 Dr Khan delivered a provocative speech to a group of students who had gathered to protest against the Citizenship (Amendment) Act. The FIR conveniently relies upon selective pieces from the speech to argue that Dr. Khan was promoting enmity amongst the people and inciting the students on the basis of religion.

The High Court in its verdict has quoted the entire transcript of the speech in question, running in more than 8 pages,  in order to analyse the allegations in connection with such speech. It has observed that there was neither anything in the said speech that can be said to have disclosed any effort to promote hatred or violence, nor has the same threatened the peace and tranquility of the city of Aligarh. To the contrary, the judgment observes, the address gives a call for national integrity and unity among the citizens while also deprecating any kind of violence.

Subjective Satisfaction of Detaining Authority

The High Court has analysed in detail the detention order passed by the District Magistrate of Aligarh on February 13, three days after the Chief Judicial Magistrate had granted bail to Dr. Khan. During these three days after having obtained bail, repeated communications and release orders had been transmitted to the District Jail in Mathura, but to no avail. Finally, on February 13, a detention order was passed by the District Magistrate expressing a perceived "threat to public order" if Dr. Khan was to be released. 

The detention order and its supposed subjective satisfaction was again based on selective portions of the speech given by Dr. Khan, two months before the order was passed.

The Allahabad High Court has noted two very crucial aspects in analysing the order. First, the alleged speech was addressed at a gathering of students on December 12, 2019. Neither at that time, nor at any point of time before the detention order under NSA was passed, was there ever an expression of threat to public order. Moreover, between December 13, 2019, when the FIR was registered, until February 13, 2020, when the detention order under NSA had been passed, the state government never expressed any threat to public order from Dr Khan. 

Even after registration of the FIR in December, he was arrested more than a month later. Moreover, not a single argument was advanced by the prosecution regarding any existing threat to public order by Dr. Khan's release, during the bail hearing before the Chief Judicial Magistrate. 

Secondly, the High Court pointed out that the purported subjective satisfaction of the DM, was based on three communications by subordinate officers to the Senior Superintendent of Police. The Senior Superintendent of Police  had in turn written to the District Magistrate seeking imposition of NSA upon Dr. Khan. Interestingly, all such communications to the SSP and the letter from the SSP to the DM, were hurriedly moved on the same day and, except for some formal differences, were verbatim. 

Though an effort was made by the state of Uttar Pradesh to argue that the subjective satisfaction of the detaining authority cannot be gone into by the courts, the same was rejected by the court. It held that while it may be true that the courts cannot replace their opinion for subjective satisfaction, such satisfaction must be based on a material that a reasonable man would be satisfied with. In absence of such material, the satisfaction as it may be, remains completely unreasonable and unlawful. In that premise, the court held that there is a serious lack of objective material on record as may have given rise to a valid subjective satisfaction. 

The Court relied upon a test laid down by the Supreme Court in Khudi Ram Das v. State of West Bengal, and held that neither there is any objective material giving rise to the subjective satisfaction nor the subjective satisfaction is found to have been reached in a legal and regular manner but on whim and humour. 

The Question of Compensation for State Illegality

This is also not the first time that Dr. Khan has found himself implicated in a hurried case by the state government. On the intervening night of August 10th and 11th,  2017, there was a severe lack in the supply of liquid oxygen at the Baba Raghav Das Medical College in Gorakhpur, where Dr. Khan was a lecturer. While initially reports poured in hailing Dr. Khan as the "saviour" who had almost heroically arranged for oxygen cylinders to save, if not all, a number of precious infant lives, he was soon victimised by the state govt. that pinned down the entire blame on Dr. Khan. It termed him to have been the "in-charge" of the 100 bed when he was only on probation, having been appointed as lecturer just a year ago. 

With a surprising hurry, an FIR was registered in Lucknow and Dr. Khan came to be arrested on September 2, 2017. He was granted bail by the Allahabad High Court on April 25, 2018, almost six months after the arrest. While granting bail, the High Court had observed at the time that there is no material on record, which may establish medical negligence against the applicant (Dr. Kafeel Khan) individually. The departmental inquiry as well absolved Dr Khan of all charges of medical negligence.

These previous actions of the state towards Dr Khan have also been noted by the Chief Justice Govind Mathur of the Allahabad High Court while setting aside the detention order passed against him under NSA and directing his forthwith release. 

Conclusively, while the Allahabad High Court has allowed the writ of habeas corpus, a major question remains on compensation by the state for such gross illegality that has been carried out as pure vendetta. Even the High Court in its judgment has observed that the subjective satisfaction purportedly reached upon in passing the detention order was not reached in a legal and regular manner, but on "Whim & Humour". When the state acts in such a manner, throwing in the winds all procedure and rationality, that deprives a medical professional of his liberty, should it also not be the duty of the state to aptly compensate and rehabilitate the victims of such political abuse?

(Ibad Mushtaq is an Advocate practicing in Supreme Court of India and Delhi High Court. Views are personal.)