Allahabad HC judgment on Kafeel Khan is a frightening commentary on governance in UP

The Allahabad High Court judgment this week, which quashed the illegal detention of Dr Kafeel Khan, makes for compelling reading and is a frightening commentary on the Government and governance in Uttar Pradesh. It not only lays bare the mindless misuse of the law but also exposes the frightening absence of rule of the law in the state. The frivolous grounds on which the doctor was charged in Aligarh, arrested in Mumbai and detained in Mathura for seven months are already known. The refusal of the Supreme Court to hear a Habeas Corpus petition filed by his mother, the apex court’s direction to the Allahabad High Court to hear the case expeditiously, the innumerable adjournments of the hearing were also reported widely.

To be entirely frank, the High Court was also expected to toe the line of the Supreme Court, which after all dismissed the petition of Prof Saifuddin Soz against his illegal house arrest in Srinagar. The Supreme Court accepted the government’s denial that Prof Soz was under detention. The Allahabad High Court could also have shut its eyes and accepted the state’s argument that Dr Khan was of a ‘criminal bent of mind’ whose release would disturb public order. It was also claimed incredibly that the dangerous doctor, though detained in jail, was in touch with equally dangerous students of Aligarh Muslm University (AMU). Luckily for democracy and liberty, Chief Justice Govind Mathur and Justice SD Singh chose to examine closely the grounds of the doctor’s arrest and his continued detention under the National Security Act (NSA). Luckily the judges chose to ignore the state’s submission that the court did not have the authority to question the ‘subjective assessment’ of the Aligarh District Magistrate, who blindly accepted the police report against Dr Khan. It was fortunate that the judges decided to ask for a transcript of the allegedly inflammatory speech and found that it was actually a call for unity and asked students to resist attempts to divide society between Hindus and Muslims.

The High Court judgment makes use of what is so rare in these times, common sense, to ask 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 indeed a classic case study of District Magistrates, DIGs, SP’s and even more senior officers in the secretariat at Lucknow abdicating their responsibility to become ‘yes men’ to their political bosses. One suspects that many if not most illegal detentions in not just UP but also elsewhere suffer from similar non-application of the mind. The nation ought to be grateful to the two Allahabad High Court judges, who have lived up to the court’s reputation, and have a struck a blow for liberty and democracy.