In a major blow to the crackdown policies of the state government, muzzling dissent over the contentious issue of Citizenship Amendment Act, the Allahabad High Court set aside decision of detention of Dr Kafeel Khan, a paediatrician at Gorakhpur’s BRD Medical College and Hospital under the provisions of National Security Act and its further extension for three months. The court held the detention order under the NSA as “bad” and based on “selective reading and selective mention of few phrases from the speech ignoring its true intent”. The court also pointed to the two-month gap between the speech and the NSA charge, and that the order to extend the detention was not given to Khan.
The High Court set aside detention order dated 13th February, 2020 passed by District Magistrate, Aligarh and its confirmation by the State of Uttar Pradesh. The extension of the period of detention of Dr. Kafeel Khan has held declared illegal. Allowing the writ of habeas corpus the court ordered release Dr. Kafeel Khan from State custody forthwith.
Discussing the scope of preventive detention in the constitutional concept of freedom and liberty the court described, “Preventive detention is an exceptional mode to curtail liberty and freedom of a person in exceptionally rare circumstances. Under Article 21of the Constitution of India along with the right to life, the right to personal liberty is a precious fundamental right. This precious fundamental right must always be protected.” “Under our constitutional scheme the nation of India is 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 bench narrated.
Examining the issues of Dr Kafeel Khan ordeal in the light of conceptual understanding of fundamental rights guaranteed to every citizen under part III of the Constitution of India, the bench underlined, “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. The strong and valuable fabric of our nation is well designed with support of fundamental rights given in Part-III of the Constitution. These rights are golden thread in the fabric, which is further illuminated by extending protection of life and personal liberty under Article 21 of the Constitution of India.” “True it is, the right so given under Article 21 is not absolute but no one can be deprived of his or her personal liberty except on such grounds and in accordance with such procedure as are established by law. Any act that causes injury to the valuable rights given in Part-III of the Constitution would be nothing but an effort to weaken the fabric of our nation, a democratic republic,” the bench opined.
Analysing the chronology of events and material examined by the District Magistrate Aligarh, the High court recorded its specific findings saying, “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 nowhere reflects the eventualities demanding detention.” “A complete reading of the speech prima-facie does not disclose any effort to promote hatred or violence. It also nowhere 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,” held the division bench headed by chief justice Govind Mathur and Justice Saumitra Dayal Singh.
Passing serious strictures on the conduct of District Magistrate Aligarh Chandra Bhushan Singh, “It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent. The entire speech being a subject matter of a criminal case pending against
Dr. Kafeel Khan, therefore, it would not be appropriate for us to make much comments on that. Our anxiety is only to assess that as to whether a reasonable man could have arrived at a conclusion as arrived by the District Magistrate, Aligarh? Prima-facie, the speech is not such that a reasonable man could have arrived at a conclusion as the inference drawn by the District Magistrate, Aligarh,” the bench held.
An important aspect of the matter is that the detenue, Dr Kafeel Khan addressed the gathering on 12th December, 2019. At that time the District Administration, Aligarh did not find the speech of Dr. Kafeel Khan sufficient for preventive detention. Nothing has been said in the order of detention or the grounds for detention that district administration had any information within the period from 12th December, 2019 to 13th February, 2020 about any effort made by the detenue Dr Kafeel Khan to cause even a simple scar to the peace or tranquility or the public order of the city of Aligarh.
“It is only after passing of the bail order by the Chief Judicial Magistrate, Aligarh, the police officials and the District Magistrate, Aligarh initiated the process for detaining Dr Kafeel Khan under the National Security Act, 1980. At the cost of repetition, it would be appropriate to state that from 12th December, 2019 to 29th January, 2020 the detenue Dr Kafeel Khan was roaming free and he had ample time to make all the efforts to damage public order in the city of Aligarh, if he was intending to do so,” the bench noted.
Dr. Kafeel Khan and Dr. Yogendra Yadav addressed a gathering of 600 students at Bab-e-Syed gate of Aligarh Muslim University, Aligarh on 12th December, 2019. They were invited to address the students who were protesting the proposed amendments through the Citizenship Amendment Bill, 2019. The bill was passed by both the houses of the Parliament on 12th December, 2019 and was also assented to by the President of India, on 13th December, 2019. Soon after presidential assent on 13th December, 2020 a huge crowd of people gathered at Bab-e-Syed gate of Aligarh Muslim University, Aligarh to lodge protest against the amendments introduced in the Citizenship Act. The Local administration alleged that the crowd gathered caused violence and also damaged public property and accordingly drawn inference that whatever happened on 13th December, 2019 is an outcome of the provocative speech of Dr. Kafeel Khan of which selective parts of which are referred in the grounds for detention supplied to him initiated for about good two months from the day he addressed the students.
Initially at the time the sole action taken was lodging a criminal case against Dr Kafeel Khan and others pertaining to offences under Section 153A of Indian Penal Code. Some offences were subsequently added to it. In the case aforesaid, accused Dr. Kafeel Khan was arrested on 29th January, 2020 i.e. after a lapse of more than 45 days. But decision of putting him under stringent provisions of National Security Act was precipitated in wake of his release order on bail by a Judicial Magistrate of Aligarh on 12th February 2020.
The High Court judgment highlighted highly casual approach of new breed of officers who blatantly crumble civil liberties and free speech by questioning bonafides of subjective satisfaction of law and order machinery. Why the doctor did nothing to disturb public order in Aligarh for 45 days after delivering the speech if he was indeed intent on creating chaos; and why the doctor did not visit Aligarh even once between December 12 when he spoke and January 29 when he was arrested in Mumbai? The judges asked why NSA was invoked on February 13 after the doctor had been granted bail; and why the grounds of his detention or reasons for extending it were never communicated as required under the law. The court noted that while a CD containing his speech was delivered to him in jail, neither any device nor any transcript was provided to enable him to peruse the grounds and make a representation for his release.
The judgment is considered as an insulation to protect free speech and universally recognised precious human rights and a lesson to committed state machinery of senior officers in the field and secretariat at Lucknow who abandoned their constitutional duty to become „yes men’ to their political bosses for securing prime position in power structure.
TRANSCRIPT OF DR KAFEEL’S SPEECH AT AMU
(COURT FOUND NOTHING WRONG IN IT)
“Very good Evening.
Let’s begin with famous piece of poetry by Allama Iqbal Sahab
“Kuch baat hai ki hasti mit-ti nahi humari sadiyon raha hai dushman daur-e-zamaa hamara”
(There must be something special that we still exist despite the whole world against us) — (Students clapping)
Before even entering the gate, I received a call from the C.O. City and he said that don’t go there or you will be put behind bars. — (Shame -Shame-Shame by students)
I asked him if he received a call from Yogi Ji regarding my arrival. If you all sit down it will be convenient for everyone. — (Students saying sit down everyone)
If you all sit down then we will be able to talk and understand what CAB & NRC are? How afraid we should be of it … please sit (students “sit down sit down”)
Since our childhood we all are taught that we will neither become Hindus nor Muslims, but humans and our Mota Bhai teaches us that we will become Hindus, Muslims, but not humans.
Why because as they said (pointing at students) “How will a murderer know, whose clothes are stained in blood, how will be hide those stains?
How would they know the meaning of Constitution, since the day RSS came into being in 1928, they don’t believe in Indian Constitution. They don’t believe in our Constitution. It is repeatedly said that the law brought in by Amit Shah Ji, our Home Minister, is unconstitutional and is not in consonance with India’s pluralism, communal harmony, humanity and equality.
We should understand whom are we talking to, We are talking to those who never believed Baba Saheb’s Constitution and never ever read it. Since the time they came into existence nearly 90 years ago, their objective has been to divide this country.
Firstly, you all are very young and I believe you will have to lift the baton and will have to fight. (Students: In Sha Allah or if God wills).
Aligarh has always been dear to me and I think when I was in jail there was a huge protest march for me. After being released from jail, I’ve been here for 2-3 times and though I won’t be able to reciprocate the love I’ve got from here, however when I got the call last night, I made up my mind that I would definitely come here, no matter how much Yogi Ji try … (clapping)
Let’s firstly talk about what CAB really is. How many people actually know the CAB is? Does everyone know? Why Citizenship Amendment Bill was introduced? There was an attempt in 2015 as well (2016 prompted by crowd). The reason to bring it at the moment is that the NRC implemented by them in Assam has resulted in 19 lakh people being left out. Out of them 90 per cent were those people whom they wanted to be included in NRC. This backfired for them. Now they weren’t able to understand what they should do first, otherwise perhaps they would have been silent after the Kashmir issue for some days.
Hence, they brought CAB. According to CAB, barring Muslims, even barring atheists and other groups including Rohingya and many others, whose name I can count, only for 5-6 religions, people were told that those who faced religious persecutions in Pakistan, Bangladesh and Afghanistan will provided citizenship. Muslims shall not be provided the same.
We are not affected by it, it’s a good thing. Like Amit Shah ji said yesterday that it is about giving citizenship and not taking it from us Muslims, then why are you all protesting. Why are you protesting, you should not be concerned about it.
NRC plus CAB is the lethal term. And one thing is that, they have just build a small wall for now, and later they will build a full structure on it. It is the result of the hatred that they have spread amongst us for 90 years in minds of our youth on the basis of religion.
During the talks with Yogendra ji in car, he said that simply, constitution for us common village people is limited to the SHO. Whatever he says is the constitution for them. The SHO since 2014 knows how to treat them, they are second-class citizens and they should be constantly reminded that it is not their country. When NRC will be introduced, that is the time when we will have problems. Now what is NRC? NRC was made for Assam, and for the same Indian Register was made which has now being amended and in 2019 the completed list is available on the website of the Home Ministry Affairs. The list is complete, all preparations are done. Also, let me tell you that Aadhar Card, Pan Card, Driving License won’t be of any relevance. You would require a birth certificate. If you were born in India from 1950 to 1987 then you are a citizen, otherwise not. Next clause says that if any of your parents were born in the period 1987-2004, then you are a citizen. After 2004 till now, if both the parents are born in India, then only you are a citizen.
It is nowhere written that if you are a Muslim you shall be removed. Then are we in trouble? Why are we protesting? Because we know what their intentions are. What do we know that people wearing white clothes, how dark they are. We know what their thinking is and what is there in their mind. Only hatred. They will intentionally make us run to get our certificates, our father’s certificates, our mother’s certificates, our legal records. They will thus create problems for lakhs and crores of people.
But let me assure you all about one thing, that the rumor about sending everyone to detention centres is not possible. Understood? A budget of twenty three thousands crore will be required to send 6 lakh people of Assam to detention centres. 1500 crores were spent on NRC in Assam, say 1600 crores. For the entire India, about 30,000 crores would be required.
When we ask for free education, they say that there is no money, increase the fees of JNU. The year in which 70 children died in BRD, 8 lakhs children died in India. I am running a Health for All Campaign, I’m working on that and I have met 13 chief ministers. Even I’ve met our Health Minister and given him my proposal. The data has been collected by us, a team of 25 non-political health activists, Supreme Court lawyers, CEO’s, IITians and we have got the data from UN, UNICEF, World Bank and WHO. Those data were very tragic. 50 per cent of our population is malnourished. India is the 3rd largest country of AIDS and HIV, 2nd largest of diabetes, 72 per cent population is devoid of health facilities. If they get a heart attack, they will have to travel for 40 kilometers to get a doctor for themselves. As per the research, the ones who are called fake doctors, Bengali doctors are the ones who are actually working, otherwise there isn’t anyone. The primary health centres which are the backbone of any health centres in the world is not there, it is shambles. So, we will not talk about that.
I am travelling across India and ask everybody, I repeat it again, they might be getting bored by my speech. But this is the truth. I ask people what do they want? People say that a respectful two-square meal per day, good medical facilities when our children are not well, good colleges and universities for their education for instance AMU, JNU, IIT, AIIMS, a good job after they attain their education. Thus, the only demand that we have for past 70 years is food, clothing, shelter, health, education and employment. And this demand is not just ours but of everyone, of all poor persons. But what they talk about is Shamshaan-Kabristan (Cremation ground-Graveyard), Ali- Bajrang Bali, your Kashmir, Ram Mandir, CAB, NRC. They don’t talk about the promise that they made for 2 crores employment per year. They don’t talk about giving 15 lakhs Rupees to us as earlier said by them. Economy is doomed, small businessman are ruined. If you go at the ground level, you are not the only one disturbed. By expressing their problems, they hide the problems of economy, employment, roads and housing. So that you don’t even ask.
Why is mob lynching done? Mob-lynching is an organized crime. A trained mob comes who are well taught how to attack. Why would a murderer make a video himself? They themselves record the video, upload it on Facebook and inform their senior that the senior sitting in Delhi shall be happy and will save them. This is why mob-lynching is done, to create a fear- psychosis to one community and to create a pseudo euphoria in other community. The talks about nationalism is actually pseudo-nationalism, on the basis of pseudo-Hinduism only. Our entire opposition gets hidden behind soft Hinduism. We only will have to speak and fight.
You must have heard that two months back I got a clean chit. Yogi Government constituted a committee in which it was alleged that Dr. Kafeel is a murderer, is involved in corruption, all children died because of him. The said committee held that Dr. Kafeel was the junior-most doctor and bought cylinders from his own pocket and saved lives of a number of children. Then Yogi ji thought now what can be done, how to trap him now. So, they again suspended me. Now they say that I speak against the government. So now I said: “Is zulm ke daur me zubaan kholega kaun, agar hum bhi chup rahenge to bolega kaun” (Who will speak in this time of atrocities if not me).
I would like to tell you that the ones sitting in power are merely faces, the ideology of RSS of spreading hatred has been existed for many years which is being spread in shakhas. We are the ones who are not able to understand this. We will have to understand and I will appeal all my brothers and sisters who believe in prosperous and united India that they should oppose this draconian law. Everybody should come up, not just us Muslims. Everyone should come as to how can citizenship be on the basis of religion. Where was this written in our Indian Constitution? We are the citizens of the world, these boundaries are created by the politicians for their sake only. You only have to fight.
Aligarh will have to become the leader, the way JNU comes up as the only leader in the entire India for issue of fees or for any issue, For many years I believed that Aligarh is sleeping, but now perhaps after seeking these young faces, I think now is the time to wake up and they have woken up. This is the fight for our identity. We will have to fight. And let me tell you that fight does not mean creating physical violence, we have to fight in a democratic way. We have to fight in their way only and have to tell people that the rumor about detention centers is false. Their thinking is restricted only to Lok Sabha and Rajya Sabha. You don’t know how much is India being condemned all over this world for bringing this law.
You should think this way that the servant in your neighbor’s house has stolen something, he is manner less, and if he comes to your house you will give him employment. How will your relations be then with your neighbor? How is justified to divide people in the name of religion? However, my brother is also here with me but he has probably gone somewhere right now. My brother was shot where Yogi Adityanath was himself present about 500 meters away. (Crowd- Shame, Shame) After this, when he was taken in the car for emergency surgery to take out the bullet, there was an unnecessary delay of 4 hours.
We thought for once that why is God testing his patience. I went to save the children only. There was never a response to it. But I think there must be some will of God. He must be testing me. He must have had a plan and that is the reason I am here with you guys. (Students clapping)
Convey my message that please be united. Please all come together and not be bothered about these small things and quarrels. Do you know yesterday I heard in a debate, someone said that Pakistan’s Ahmadiya and Shias should have also been included so that the Muslims here would fight amongst themselves only. Everyone would have been associating them with Shias so that by this reason only they would be covered under CAB. Do you understand? This is how they want to divide. So, please be united and not just in the name of religion. We are humans first. Islam has taught us that our deeds should be right. Our intentions should be right. You choose the path and God will take you to the destination. Inshallah (if God wills).
So, I request you all that you try to reach to your non-Muslim friends, sit and talk to them and tell them we are not the ones who repair cycle-punctures, fridges, mobiles and who marry 4 times or Jihaadis, Pakistanis. We are also doctors, engineers. Come, sit and eat with us someday to end the distances that are created. I would like to tell you that what RSS did was in the name of school, you must be knowing the name of school, I don’t have to take its name, through the schools it stated teaching that these bearded people are very bad. It made 4-5 categories namely the ones who repair cycle-punctures, refrigerators, marries four times, lives untidily, support Pakistan, are terrorists. So, when they see that a doctor wearing a tie is saving the lives of children, they feel who is this animal? They don’t know. How will you tell them? Get them together and make them understand that we are also humans and no one can be more religious than us. Only our religion teaches about humanity, only our religion teaches about pluralization. (Students clapping)
Thank you so much. There is a lot to talk about. I will just wrap up by saying three things.
First, that there is no need to be afraid of CAB. It has nothing to do with us. But yes, it is a pawn as it is being tried to show you that this country is not yours and you are merely tenants. This is a signal given, a very big signal and its ramification shall be extended to that SHO who is seen as our Constitution.
Secondly, yes, be prepared for NRC. Get your birth certificate made. Get your parents’ birth certificates made. And I’m telling you that Aadhar Card, PAN Card, Driving License is not valid at all. What all documents would be required have not yet been informed by them. But 4 documents which are most important, including birth certificate, and ensure that you get your parents’ birth certificates made. Theirs would not be available, yours would be. Then, your land records, the ones received from Panchayats, your samasat, voter ID cards. These 4 documents are very important. Keep them ready.
Thirdly and most importantly, this country is ours. This Hindustan is ours, not anyone’s property. As much as this land is yours, it is ours too. It is not in your capacity that you can take it away from us. It is not in your capacity that you can intimidate us. It is not in your capacity that you can remove us. We are 25 crores, you can neither scare us by mob-lynching, or by such trivial laws. We will be together, we will be together, we will be united. We will be together like a wall. This is our Hindustan and we will tell you how it will run. “Darna aata nahi hai hume, jitna bhi dara lo.
Har baar ek nai taakat se uthege, chahe jitna bhi daba lo.” (We won’t be afraid no matter how much scare us. Every time we will rise, no matter how much you suppress us)
Allah Hafiz (May God be with you)
Dr Kafeel says he is a victim of state persecution For exposing the system
Having reprieve from the Allahabad High Court Dr. Kafeel Khan still apprehensive of personal vendetta from the UP chief minister Yogi Adityanath and found asylum in congress ruled Rajasthan as a safe and secured place. In a secret move he directly drove 40 km. to Bharatpur (Rajasthan boarder) just after his release from Mathura jail where he was transferred after his arrest from Mumbai Airport on 29th January, seven months ago. Later NSA was slapped on him when he was about to released on bail on 12th February allegedly for giving a “provocative hate speech” at Aligarh Muslim University.
Addressing the media at Jaipur, Dr. Khan claimed, I tried to expose the system but it did not go well with CM Adityanath.”
If I am not allowed to join my duties in BRD Hospital Gorakhpur, I will hold medical camps in flood-affected areas of Assam as an activist,” Kafeel Khan added.
After the Allahabad High Court quashing his detention under National Security Act (NSA), Dr. Kafeel Khan interacted with media on 4th September where he disclosed that he would ask Uttar Pradesh Chief Minister Yogi Adityanath to reinstate his job in the state medical services. “I was falsely implicated by the UP government and sent to jail for exposing the system. As the High Court has quashed the detention orders under the NSA against me, I would write to the Uttar Pradesh chief minister to reinstate me in the medical service,” Dr. Kafeel Khan asserted.
Dr. Khan, a paediatrician, was suspended from Gorakhpur’s BRD Medical College after several children died there in 2017, apparently due to shortage of oxygen cylinders. A departmental inquiry later cleared him of most of the charges.
In an indirect reference to high-handedness of Uttar Pradesh government, Khan said he and his family arrived in Jaipur in Rajasthan as they felt “safe” here. Rajasthan is a Congress-ruled state. Speaking with the media in Jaipur, Dr. Kafeel Khan says that his family has been harassed since the past three years, now financially broken.
He said he was falsely implicated by the UP government and sent to jail as he had exposed the system. “I was leading a simple life. I tried to expose the system as children died at BRD Medical College due to lack of oxygen. This did not go well with our chief minister and a false case was lodged, and I was sent to jail,” he claimed.
Khan alleged that he was tortured and asked “weird questions” after being arrested by the UP special task force. “The NSA was imposed on me for three months and was extended for three months. Again, it was extended after three months. I was not given water for 72 hours after being taken into custody,” he alleged.
“I was physically tortured after the STF arrested me. I was asked weird questions like if have invented any powder to kill people and visited Japan to topple the government,” Khan said.
He was first arrested on September 2, 2017 along with eight others, including the medical college principal, Dr Rajiv Misra, his wife Dr Purnima Shukla, owner of Pushpa Sales (the company supplying the oxygen) Manish Bhandari, and anaesthesia department head Dr Satish Kumar, shortly after 67 children affected by encephalitis died in the Gorakhpur Medical College simply because of abrupt suspension of oxygen supply to the children’s ward. He went out of his way to ensure availability of oxygen cylinders for dying children in the Gorakhpur Medical College.
It took about seven months for each of them to get bail. Soon after he got bail from the high court after seven months in jail, he was hauled up for “creating ruckus” at the Bahraich district hospital. He, however, managed to get bail on the same day. But even before 24 hours could pass, he was in for yet another arrest — for having submitted “fake” documents to open an account in a nationalised bank way back in 2009.
The supplier of the cylinders, Manish Bhandari, later pleaded that he had no option but to do so as he had exhausted his own funds while the state government was sitting pretty over his pending payments of Rs 68 lakh. Later, it was discovered that the file was held back by a senior IAS officer in the medical education department simply because the officer wanted a “cut” ‒ a routine practice rampant at all levels in UP.
The next arrest came because of his allegedly “provocative” speech made during anti-Citizenship (Amendment) Act (CAA) protests at the Aligarh Muslim University (AMU) in December 2019. This time, the state government had deputed the Special Task Force (STF) to his case. Eventually, STF sleuths arrested him from Mumbai, where he had gone for personal work on January 29, 2020. Over the next few days, the administration invoked the NSA that was extended after its three-month period came to an end in May and then again in August.
Meanwhile, departmental inquiries instituted against them also gave them clean-chits. One-by-one, eight of them were reinstated. But Kafeel Khan was the only one to face a fresh inquiry by the state government. And this time, he was charged not only of dereliction of duty, but also indiscipline, negligence and even corruption and for “stealing oxygen cylinders”.
After his release on Tuesday evening, Khan had claimed the Yogi Adityanath-led Uttar Pradesh government was indulging in „Baal Hatth„ (childlike- stubbornness) instead of observing „Raj Dharma’. He expressed strong apprehensions that the state could frame him in another case now that he is out of jail.
Priyanka Gandhi came to protect Dr Kafeel Khan
Hailing the Allahabad High Court order, Priyanka Gandhi tweeted that “it is expected that the UP government will release Kafeel Khan without any malice”. She has also congratulated all the “justice loving people” and party workers who had been making efforts for Dr Kafeel Khan’s release in Uttar Pradesh.
Following the instructions of Congress General Secretary and in-charge of Uttar Pradesh Priyanka Gandhi, UPCC Minority Department under the leadership of state unit chief Ajay Kumar Lallu has launched a campaign from July 22 to August 22 demanding the release of Dr Kafeel. Apart from a signature campaign, the „chadar’ is also being offered at holy tombs, praying for Dr Kafeel’s release, while lakhs of videos have been uploaded on social media platforms.
Saffron supporters trolled Priyanka Gandhi with dirty comments but she continued her campaign to secure justice to Dr. Kafeel Khan. In an unprecedented outreach she personally spoke Dr. Kafeel just after his release from Mathura Jail where her emissary former Congress MLA Pradeep Mathur and the UP Congress’ minority cell head Shahnawaz greeted him with followers.
Priyanka also congratulated all the justice loving people who joined her on social media and her cadre of UP Congress workers for their efforts in the release of Dr. Kafeel Khan.
Sending out a clear message to the Yogi Adityanath-led UP Government that victimization of minorities in UP will not be tolerated, Priyanka Gandhi called up Dr Kafeel Khan twice and had talks with his wife Shabista over phone sharing her personal number with Shabista, Priyanka enquired about the well being of Kafeel’s mother and his children over the phone.
