Finally, Allahabad HC has quashed Dr Kafeel’s detention Under the National Security Act (NSA) uncovering the state-led persecution. Allahabad HC high court decision came at a time when a judicial function is under severe social lenses. In recent time, civil society has criticised many of its decision being biased and prejudiced for diluting the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities), Act 1989 (“SC/ST Act”) and contempt of court-related proceedings against Prashant Bhusan. The Allahabad HC deserves credit for breaking this disturbing pattern. Its order provides a template for other courts to follow in cases that involve the fundamental rights of citizens and their encroachment by a state armed with repressive and out-dated laws. This is especially crucial in times when the spaces for dissent are seen to be imperilled and in need of protection. Therefore, the Allahabad HC order is a ray of hope in such a gloomy time and exposes state persecution.
This order is upright testimony to read for anyone who wants to explore or understand what “State Persecution” is and how the politicization of bureaucracy works and how this chronic scenario is antithetical to inclusive and peaceful development. This 42-page order has explicitly laid down the cynical manner in which the doctor was detained under the National Security Act (NSA), just weeks after he was granted bail in an earlier case. His case quite clearly betrays the misuse of NSA and state enthusiasm bulldozing the suspended government doctor. In his earlier case, Dr Kafeel Khan, the Paediatrician, blamed for a severe shortage of oxygen cylinders which led to the deaths of around 60 children admitted to the encephalitis ward in the Baba Raghav Das Medical College Hospital, in 2017, on charges of negligence and corruption, but situations indicated his tireless struggles to ensure a continued supply of oxygen. Although an internal inquiry absolved him of the charges of negligence and corruption, the State government failed to given a clean chit and rather an additional departmental inquiry was ordered against him for “spreading misinformation” about the probe report, and some alleged “anti-government” remarks during his suspension.
Later, The doctor was detained under the NSA for His speech, which contained scathing criticism of the Citizenship (Amendment) Act, and its discriminatory nature was deemed. High court Bench comprising of Chief Justice Govind Mathur and Saumitra Dayal Singh rightfully noted in their judgement that,
“His speech taken in its entirety, does not disclose any effort to promote hatred or violence; and nowhere does it threaten peace and inciting Muslims in Aligarh. The DM used selective reading of some phrases and ignored its true intent while passing the detention order. No reasonable man, it says, would have concluded the speech that the DM did. The grounds for detention under NSA provided nothing that indicated any attempt by Dr Kafeel to disturb peace and tranquillity between the speech in December and his detention in February. The inevitable inference is that the NSA was invoked only to avoid releasing him following the Chief Judicial Magistrate court’s order granting him bail”.
In a democracy, the use of strict national security rules and legislation against political dissenters is something to be condemned in its entirety, particularly in the absence of any reference to violence. The recourse to preventive detention is not rare in the country but the selective procedure and practice are condemnable. Its quite deplorable that the bureaucracy and police seem to be behaving with malevolent, malicious and merciless disregard for human right and how unscrupulous targeting of concerned administration and resort to the NSA is often aimed at inflicting disproportionate punishment for voicing political dissent on an ostensibly forbidden subject. In Kedar Nath Singh, 1962, the Supreme Court had ruled that incitement to public disorder or violence was key to judging a speech as seditious. Yet, in recent times, state authorities have frequently invoked the provision to criminalize free speech and clamp down on dissent, with the judiciary, especially the lower courts, more often than not giving the state the benefit of the doubt and delay.
Even though the verdict given him relief, Kafeel Khan Case is a blot on India’s democratic credentials, as it brings to light its propensity to criminalize dissent, single out individuals for persecution and display a general disregard for fundamental rights. Taking the cue from growing opinion, most recently articulated by Justice D.Y. Chandrachud of the Supreme Court, that protest and criticism directed at government policy do not amount to being anti-national, officials should pause before they are seen as enablers of the excesses of an authoritarian dispensation. To invoke the NSA in cases where sections of the IPC would suffice is to undermine its efficacy as a tool to protect national security. Finally, considering the erroneous bureaucratic malpractices and procedural loopholes, India as a country seriously required radical reforms to build a prosperous and peaceful nation by making its institutions robust and governance efficient. Since the paediatrician’s suspension is yet to be revoked, its state duty to reinstate him to his previous duty with due respect and due compensation to serve the nation.
