Kafeel Khan: Hailed as childrens’ saviour, but kept in incarceration under stringent law provisions by UP govt

Dr Kafeel Khan, who was in custody under the stringent provisions of the National Security Act, 1980 was granted relief by the Allahabad High Court on Tuesday after the court revoked the NSA charges against him and directed the government to immediately release him.

The order came in a habeas corpus petition filed by Dr. Khan's mother, Nuzhat Perween, who alleged that his son had been detained illegally.

Dr Khan was lodged in the Mathura jail after the District Magistrate, Aligarh passed an order of detention against him on February 13, 2020, which was confirmed by the state of Uttar Pradesh.

He was arrested from Mumbai in January this year, for allegedly giving a provocative speech at the Aligarh Muslim University on December 13, 2019, amidst anti-CAA protests.

While his speech was passionate, observers opined that only by a wild stretch of the imagination could it be described as instigating violence. By invoking the NSA against Dr Khan, the Yogi Adityanath regime has only exposed its own politics of vendetta, they said.

Dr Khan’s wife wondered how his speech could be seen as inflammatory when he was only echoing the sentiments expressed by many others and in a much milder way. She questioned the basis of his detention under the NSA and asserted that such intimidatory tactics would not stop people like her from speaking out against the government’s unjust policies and excesses.

Two days after Dr Khan gave his speech, the police used excessive force on the AMU campus: they fired tear gas shells, entered hostels, vandalised the premises and injured scores of students. There were allegations that the police fired live ammunition. A first information report (FIR) filed at the Civil Lines police station under Sections 153 A (promoting enmity between different groups), 153 B and 109 of the Indian Penal Code accused Dr Khan of provoking the students, vitiating the university’s peaceful atmosphere and disturbing communal harmony.

Forty days after the FIR was registered, a Special Task Force of the Uttar Pradesh Police arrested him from the airport in Mumbai, where he had gone to participate in anti-CAA protests. He was taken to a jail in Aligarh but was soon moved to a jail in Mathura.

A court in Aligarh granted him bail on February 10, but the jail authorities kept delaying his release. After his lawyer, Irfan Ghazi, filed an application with the Chief Judicial Magistrate, his release order was dispatched with a messenger directing the jailor to expedite his release. Yet he was detained, illegally and in contempt of court, for another three days. Then the NSA was invoked against him, ensuring that he does not step out of prison.

There is a widespread perception that Dr Khan’s AMU speech was used as a pretext for targeting him.

This was the third time that he was arrested since August 2017, when close to 70 infants died in Baba Raghav Das (BRD) Medical College of Gorakhpur. Many of the deaths were allegedly caused by a disruption in oxygen supply, which happened because payments to the supplier had been kept pending. The state government, however, maintained that the deaths were caused by Japanese encephalitis. Dr Khan, who was a paediatrician at the hospital, was accused of negligence and arrested, along with eight others.

He was initially reported to have acted as a saviour by promptly acting to arrange emergency oxygen supply by paying out of his pocket.

Despite being hailed as a hero for arranging cylinders as children gasped for breath, he was named in an FIR registered under Sections 409 (criminal breach of trust by public servant, or by banker, merchant or agent), 308 (attempt to commit culpable homicide) and 120-B (criminal conspiracy) of the Indian Penal Code. It was alleged that he was negligent in his duties, which resulted in a shortage of medical oxygen.

He was arrested in September 2017, and was released only in April 2019 when the High Court allowed his bail application after observing that there existed no material on record to establish charges of medical negligence against Dr. Khan individually.

He was also suspended from service alleging dereliction of duty. A report of the departmental enquiry absolved him of charges in September 2019.

In June, there was a murderous attack on Dr Khan’s brother, Kashif Jameel, who survived with three bullet injuries. The family by then was emotionally harassed and financially broke as people refused to do business with them, fearing the wrath of the Yogi Adityanath government.

On March 19, 2020, Khan wrote to the Prime Minister of India offering to provide medical assistance during the COVID-19 pandemic in India. He was not permitted to do so.

On March 23, the Supreme Court of India ordered all states and union territories in India to establish panels to consider the release of all convicts who have been jailed for offences for up to seven years, in order to decongest prisons in the wake of the COVID-19 pandemic in India. Khan was not among prisoners released under these circumstances.

In July 2020, a letter from Khan detailing conditions inside the Mathura Prison, where he is being detained, was published by several news outlets. His letter claimed that over 150 prisoners shared just one toilet facility, that the level of hygiene was insufficient, and that a number of prisoners were unwell, raising concerns about the spread of illness in the wake of the COVID-19 pandemic.

On 26 June 2020, a group of officials and experts in the United Nations called on the Indian government to release political prisoners who had been arrested for protesting India's Citizenship Amendment Act, including Khan. The letter was signed by a number of Special Rapporteurs, including the Special Rapporteur on the Situation of Human Rights Defenders, the Special Rapporteur on the protection and promotion of the right to freedom of speech and expression, and the members of the U.N. Working Group on Arbitrary Detentions

Khan's mother, Nuzhat Perween had first approached the Supreme Court in March this year seeking the release of her son. However, the court disposed of the plea with an observation that Allahabad High Court is the appropriate forum for dealing with the matter.