Two recent judgments of different High Courts indicate how our police and civil administration act under the whims of political bosses, regardless of statutory procedures. In a habeas corpus petition against Dr. Kafeel Khan’s imprisonment under NSA, the Allahabad High Court observed that the detention and extension thereof was “illegal”. The Court comprising Chief Justice Govind Mathur and Justice Saumitra Dayal Singh indicted the action against Dr. Khan as ‘biased’ and ‘prejudiced’.
Dr. Khan, an M.D. and celebrated paediatrician, had been incarcerated in Mathura jail since January. The immediate reason of his arrest as cited was his address at A.M.U. Aligarh on December 12 last, opposing ‘Citizens Amendment Act’ (CAA) and proposed Assam-like exercise of ‘National Register of Citizens’ (NRC). The detaining officer described his speech as ‘fierce’ and ‘instigating’ and declared ‘CAA and NRC’ as ‘constitutional’, ignoring the fact that the controversial CAA is still under SC review and that citizens of India have a legal constitutional right to oppose a provision of law, new or old.
Commenting on District Magistrate’s approach to demonise Dr. Khan, the court found his reading “selective” and lamented, “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 DM.”
The court remarked, “The detention brought into effect under order dated 13th February 2020 deserves to be declared illegal.” And he was ultimately released from the jail after initial hesitation by jail authorities even after HC Order.
CASE HISTORY
An FIR was registered against Dr. Khan on 13.12.19 under section 153 A (promoting enmity between different groups) of IPC. He was arrested on 29.01.2020 from Mumbai and put in Mathura Jail. On 10.02.2020, Justice Karuna Singh, CJM Aligarh granted him bail. In the normal course, he should have been released the same day or the next day (11 Feb). The bail order directed to present the accused in the court in case of any discrepancy in order at 11.30 A.M. on 13 Feb. But he was neither released nor produced before the court. Therefore, the CJM passed another order for his immediate release and sent a special messenger to Mathura Jail to deliver the order by hand to jail officials. The messenger presented the court order to the Jail Superintendent at about 5.30 pm but was not accepted “intentionally and purposefully”. The receipt was ultimately shown at 20:20 hours.
THE MISCHIEF
Reluctant to release Khan on court order, the administration initiated action to slap NSA under non-descript instructions. It started from PS Civil Lines, where the original FIR was registered. The SHO wrote to DIGP/SSP Aligarh to recommend to the DM Aligarh, to issue orders of Kafeel’s detention under National Security Act, 1980. The SHO’s report charges Dr. Khan as a person of “a criminal and communal nature” and alleged that, “He has incited disharmony by provoking the Muslim community against CAA & NRC”. To reach this conclusion the SHO relied upon reports from Hindi newspapers Danik Jagaran, Amar Ujala and Hindustan, which, according to him,“depict a terrible state of affairs.” No confidential report was cited.
The file ran fast. The same day (13.02.2020), the DIG and SSP of Aligarh appended their recommendations; it was delivered to the DM and he too was quick to pass the order the same day. Strangely all was done mechanically.
MUMBAI HC
The observations of UP High Court reflect the same mechanism as was underlined by Mumbai HC in in a Tablighi case. The court was loud to say, “Maharashtra police acted mechanically,… did not dare to exercise powers given to them under procedural law like Cr.P.C.” and that, “The State Government acted under political compulsion”. The same is the essence of the Allahabad HC ruling in Khan’s case.
ANTI-CAA ACTIVISTS
Certainly, there were some other factors of annoyance behind Dr. Kafeel Khan’s ordeal, but in his December 2019 detention was a veiled message to silent those protesting against anti-constitutional CAA and NRC. Dr. Khan is not alone. Several others are also being squeezed under stringent laws for raising their voice for a just cause. In UP, besides Dr. Kafeel Khan, police has invoked stringent NSA against 13 anti-CAA activists including five in District Mau, already under detention since December last. NSA was slapped against them recently.
From a teen-aged girl Amulya Leona Noronha, in Bengaluru to scores of promising youngsters are facing torment for the crimes they did not commit. Many were killed during the demonstration under the theory of revenge. In Delhi Umar Khalid, Meeran Haider, Safura Zargar, Khalid Saifi, Ishrat Jahan, Gulfisha Fatima, Asif Iqbal Tanha, Natasha Narwal, Shifa Ur Rehman and others are facing police ire.
WIDE REACTION
Free Word Press reported in June, UN experts have urged India to release “human rights defenders” who have been arrested for protesting against the CAA.
The experts have pointed out, “These defenders, many of them students, appear to have been arrested simply because they exercised their right to denounce and protest against the CAA and their arrest seems clearly designed to send a chilling message to India’s vibrant civil society that criticism of government policies will not be tolerated”.
Highlighting the ‘discriminatory’ approach of authorities, experts pointed out non-investigation into the allegations of incitement for hatred and violence, some of whom are reported to have chanted “shoot the traitors” at counter-rallies.
SC ORDER IGNORED
It is further noted, “Although demonstrations ended in March due to the Corona spread, but ignoring the Supreme Court’s order to decongest jails in the wake of COVID-19 pandemic, faces of the people protest are still being arrested. The authorities are invoking UAPA or NSA and using procedural police powers, to deny bail to protesters and book under the charges carrying heavy punishment.
FABRICATED EVIDENCE
It is also alleged that the Special Cell of Delhi is engaged to procure fabricated evidences under threat. A former JNU student Umar Khalid, who was booked under the stringent UAPA along with Jamia Media coordinator Safoora Zargar and Meeran Haider in connection of NE Delhi riots, has complained to the Commissioner of Delhi Police (Sept 1) regarding “acts of fabrication and attempts at false implication” by the Special Cell.
The policymakers should take lessons from history. To defeat the call of Independence, the British rulers ruthlessly penalised thousands of Indians by jailing and killing. Surely the first face, laced with bloodstains, did not succeed, but the fire was not beaten out. The alien had to bow down to the non-violent movement. Anti-CAA movement is essentially a non-political, non-violent, inclusive democratic movement, led by thousands of Razia Sultanas, Sarojini Naidus, Lakshmi Bais, and Savitribai Phules and will not die until anti-constitutionalism and majoritarianism is defeated.
[The writer is Chairman, Civil Rights Forum, email: [email protected]]