The Allahabad High Court judgment setting aside the detention of Dr. Kafeel Khan under the National Security Act (NSA) goes beyond serving the interests of justice in the individual case it was dealing with. It also goes beyond the relief it brings to this much maligned and persecuted citizen of India. The judgment could be taken as a standard to look at judicial oversight in multiple cases of a similar nature.
By coincidence, on the same day, the Delhi High Court granted bail to Pinjra Tod member, Devangana Kalita, who has been in a Delhi jail since May. Ms. Kalita is an accused in four cases connected to the anti-Citizenship (Amendment) Act/National Register of Citizens (CAA/NRC) protests and the riots in north-east Delhi. This was the third case in which she was granted bail, but she will remain in jail since she is charged in a fourth case under the Unlawful Activities (Prevention) Act (UAPA).
Also read: NSA slapped on Gorakhpur doctor Kafeel Khan, says family
Normal judicial processes related to the rights of the accused get virtually suspended in the case of detenues under the UAPA and the NSA. Since the time given for filing of a charge sheet can also be extended, as was done by the Uttar Pradesh government in the case of Dr. Khan and in all the Bhima Koregaon-Elgar Parishad cases in Maharashtra, the accused can ‘legally’ be locked up indefinitely with no rights.
Hate speech
The court rulings in these two cases are different, but there are similarities in the goals and unscrupulous methods used by the Uttar Pradesh government in the case of Dr. Khan and the Delhi Police, directed by the Union Home Ministry, in the case of Ms. Kalita. In my interpretation of the two judgments, among the important issues dealt with, there are at least three which need to be highlighted. The first is hate speech and incitement to violence. In both cases, the accused were charged for commitment of such crimes under the relevant sections of the law linked to the anti-CAA/NRC protests. The Allahabad order reproduces the entire speech made by Dr. Khan and says: “It does not disclose any effort to promote hatred or violence. It also nowhere threatens peace and tranquility of the city of Aligarh.” The Delhi High Court stated in its ruling that the Delhi Police “failed to produce any material that she in her speech instigated women of [a] particular community or gave hatred speech due to which precious life of a young man has been sacrificed and property damaged.” Further, the Allahabad High Court indicted the administration for “selective reading and selective mention for few phrases from the speech ignoring its true intent.” The Delhi High Court said granting of bail would prevent the accused “from suffering further unnecessary harassment, humiliation and unjustified detention.”
Also read: U.P. frames new charges against Gorakhpur’s Dr. Kafeel Khan
This highlights the importance of understanding the context in which words are uttered. Yet, today, a number of activists are being vilified for their so-called hate speeches. They are subjected to harassment and humiliation on “selective readings” which seem to be accepted by some courts as “ serious charges”. Even in the Supreme Court, when Solicitor General Tushar Mehta opposed the hearing of a petition filed by human rights activist Harsh Mander on the grounds of a speech Mr. Mander made showing his “lack of belief in the Supreme Court,” the Bench not only accepted Mr. Mehta’s contention but made adverse comments against Mr. Mander without even hearing the speech. The full speech was later put out in the public domain. The comments made by the Allahabad High Court of “selective reading” in Khan’s case could be considered equally relevant in the context of what Mr. Mehta did.
‘Subjective satisfaction’
The second issue is of the “subjective satisfaction of the detaining authority”. In most of the cases filed against anti-CAA/NRC activists, the assessment of the authorities that law and order would be affected if the accused are released and that they are part of an ‘anti-national’ conspiracy are used as arguments to deny bail pleas. The “subjective satisfaction of the detaining authority” is all that is required. This was argued in Dr. Khan’s case too. The Allahabad High Court, while accepting this as a ground and judicial precedent, stated: “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.” In the case of the Delhi arrests and also the Elgar Parishad cases, the same standards of “material which satisfies a rational man” so relevant for the protection of civil liberties and democratic rights should apply. At the least it would surely lead to the prosecution of Bharatiya Janata Party leaders who made hate speeches in the case of Delhi. And in the latter case, could activist Sudha Bharadwaj then be denied bail?
Also read: I should be reinstated with due honour, says Dr. Kafeel Khan
Calling ‘witnesses’
The third issue is of witnesses. The Delhi High Court bail order specifically mentions that there is “no such evidence which establishes that the alleged offence has taken place on the act done by the petitioner [Devangana Kalita], except statements recorded under section 164 Cr.P.C. much belatedly...” Many such cases rely mainly on so-called witnesses. In Delhi, there are examples of how even those who attended solidarity meetings during the anti-CAA/NRC protests between December 2019 and February 2020 are being called in for questioning by the Special Branch and are being asked to specifically name activists on the police target list.
Along with the courts, political parties in the Opposition should also take note of these judgments. Unfortunately, except for the Left parties, there has been an inexplicable silence from most parties on the unfair targeting and demonisation of anti-CAA/NRC protesters and their being blamed for communal violence. Investigating agencies under the Home Ministry are unashamedly protecting ruling regime leaders, while innocent citizens like Dr. Khan are being locked up. Is it not time for these Opposition parties to come together to demand the release of political detainees locked up under the UAPA and the NSA, and also demand the punishment and arrest of those in the ruling regime who incited violence through their hate speeches?
Brinda Karat is a member of the CPI(M) Polit Bureau and a former Rajya Sabha MP
