Allahabad High Court
Allahabad High Court
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Dr Kafeel Khan's speech calls for national integrity and unity, does not instigate violence or hatred: Allahabad HC [Read Judgment]

"Mere apprehension expressed in the grounds of detention, not founded on any material shown to exist on record, if allowed to stand, would fall foul with the test laid down by the Supreme Court", the Bench stated.

Lydia Suzanne Thomas

In a significant judgment, the Allahabad High Court today ordered the release of Dr Kafeel Khan, ruling that his detention under the National Security Act (NSA) was illegal.

Dr Khan was charged under the NSA for his supposedly provocative speeches during the anti-CAA protests held last year.

Allowing the habeas corpus petition filed by Dr Khan’s mother, the Bench of Chief Justice Govind Mathur and Justice Saumitra Dayal Singh observed:

"A complete reading of the speech primafacie does not disclose any effort to promote hatred or violence. also no where threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent."
Allahabad High Court

The speeches were delivered in December though the charges under the NSA were laid on him only after a Chief Judicial Magistrate released him on bail.

Assailing the correctness of the detention order, Khan’s counsel contended:

  • The detention orders were never served on the detenu and

  • The reasons specified in the order of detention under the NSA were not borne out by the material on record,

  • The order for detention was made to subvert the Chief Judicial Magistrate’s bail order, and

  • The State and the Centre delayed in deciding his representations.

Additional Advocate General Manish Goyal argued on behalf of the State that there was no delay in serving the order, which was served upon the detenu along with a note and a CD containing the allegedly provocative speeches.

However, Khan's counsel argued that the CD provided to Khan could not be heard by him, as no device was provided for playback. It was also alleged that his speech was quoted out of context.

The State then sought to urge the Court that violence ensued following his speeches. It's primary contention was that the District Magistrate’s orders could not be interfered with. It was argued that the ‘subjective satisfaction’ of the Aligarh District Magistrate could not be interfered with or examined by the Court under the Constitution of India.

Rejecting the contention, the Court ruled:

"We are in absolute agreement with learned Additional Advocate General that it is not open for the courts to substitute their opinion by interfering with “subjective satisfaction of the detaining authority”. However, it does not mean that the court cannot look into the material on which detention is based. The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned."

Expounding further, the Bench said:

"The closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions."
Allahabad High Court

The Court analysed Dr Khan’s speech and declared that there was a serious lack of objective material on record that could give rise to a valid ‘subjective satisfaction’. It also noted that the speech was quoted out of context.

It was explained, based on Supreme Court rulings, that subjective satisfaction could be interfered with in certain situations, namely:

(a) non application of mind;

(b) dishonest and improper exercise of power;

(c) acting under dictation of another authority;

(d) if the authority had disabled itself from applying its mind by self-created rules of policy, etc;

(e) applying a wrong test and misconstruction of statute;

(f) if the satisfaction is not grounded on “materials which are of rationally probative value”;

(g) the grounds for satisfaction are such as a rational human-being may not consider connected with the fact in respect of which the satisfaction is reached and must not be extraneous;

(h) the action taken must be within the discretion of the authorities that is according to the rules of reason and justice and not private opinion. Thus, it cannot be arbitrary, vague or fanciful but must be legal and regular.

Based on this, the Court held that it was the facts and circumstances prevailing on the day when the detention order was passed that were to be considered.

The detention order was passed around two months after his supposedly inflammatory speech at Aligarh, it was noted. In the interval, Dr Khan had not done anything to prejudice public order. Additionally, he was not even in the city during the two month period, the Court highlighted.

“Mere apprehension expressed in the grounds of detention, not founded on any material shown to exist on record, if allowed to stand, would fall foul with the test laid down by the Supreme Court in Khudi Ram Das”, the Bench stated.

Remarking that the order of preventive detention could have been issued to prevent an occurrence that took place two months ago, the Court found that there was no causal link between the speech and the threat to public order.

Therefore, the Court declared the detention order to have been a “mere apprehension expressed by the detaining authority without supporting material”.

The Court also agreed with Khan’s counsel on the submission that a CD player was not provided to him to play his recording. This was found a violation of Article 22 of the Constitution, which requires a detaining authority to provide the detainee with material based on which he is detained.

It was held:

“In absence of such device the supply of compact disk is absolutely non consequential. It virtually amounts non-supply of the a material necessary to submit a representation in accordance with clause (5) of Article 22 of the Constitution of India. Such non-supply of material violates a precious fundamental right of a detenue enshrined under Article 22 of the Constitution. On this count also the detention of Dr. Kafeel Khan deserves to be set aside.”

On these terms, the habeas corpus plea was allowed and Dr Khan’s release ordered.

Read the Judgment here:

Nuzhat Perween v. State of UP - Final Order.pdf
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