The Case of Dr. Kafeel Khan and Ever-Increasing “Punitive” Detentions under the National Security Act, 1980

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On July 27, 2020, the Allahabad High Court yet again deferred the hearing for Dr. Kafeel Khan. Khan, who has spent all but first 28 days of 2020 behind bars. Based on his mother’s habeas corpus plea, the case got delayed due to the pandemic and the lockdown. Dr. Kafeel Khan, a doctor gave a speech at Aligarh Muslim University in December 2019 during an Anti-CAA protest. This led to registration of against him under Section 153A, 154B, and 505(2) of IPC. The charge sheet blamed his speech for “disrupting the harmony between the communities” and “creating a law and order situation“.

Having been in jail for 180 days, the Chief Judicial Magistrate of Aligarh granted him bail on February 10, 2020. However, he was never allowed to leave the prison. What came as a shock to many, just three days later UP Government brought charges under the archaic National Security Act, 1980. This meant that Khan would remain in jail for at least 3 months, under Section 3(2) of the National Security Act.

The detailed NSA detention order blamed his AMU speech for inciting clashes between the students and the police during the protests. Furthermore, it stated in its “strong and complete likelihood” that Khan could redo the same act and “cause serious threat to public order“.

In the interim, voices have arisen for his release from various quarters. Such as 99 former IAS, IPS and IFS officers, and even the UN. However, a force of the draconian NSA, judicial delays, COVID-19, and Governmental intentions have prevented his release.

National Security Act, 1980: The Draconian Provisions

The history of the preventive detention law dates back to the colonial era wherein regulation like the Bengal Regulation III of 1818 and the Rowlatt Act of 1919 were passed. The Bengal Regulation empowered the British government to arrest persons without legal recourse. Post-independence, India passed its very own National Security Act, 1950. The present NSA embodied the provisions of Preventive Detention Act, 1950 post its expiration.

Thirty-seven years after its enactment, the National Security Act’s (NSA) preventive detention regime has become a convenient tool to obscure the flaws in the Indian criminal justice system; and deprive individuals of their constitutional and statutory rights. It does not define the term “national security”. It defines situations in which an order for detention under the NSA may be passed. These include threats to the defence or security of India.

Surprisingly, no exclusive figures for NSA detentions are available; as NCRB data doesn’t include arrests made under NSA since no FIRs need to be registered under it. However, according to the 177th Law Commission Report of 2001 figures for persons arrested under preventive provisions in India stood at a whopping 14,57,779 (fourteen lakh, fifty-seven thousand seven hundred and seventy-nine).

As a matter of fact, NSA invites criticism from various strata over its procedural differences from that of criminal law. While basic remedies like the right to know the reason behind the arrest, right to seek legal representation, bail, and court hearing are available under CrPc; the same are lost when the detention takes place under the NSA.

The government’s over-reliance on preventive detention in ordinary criminal cases appears to misconstrue two fundamental aspects of the intended regime:

  1. preventive detention intends to stop future crimes; and
  2. not meant to respond to ordinary law and order violations.

Legality of National Security Act & Need For Judicial Intervention

When security instruments like NSA become a symbol of executive’s misuse and oppression, it calls for urgent checks by the Judiciary. Preventive detention is the extra-judicial confinement of an individual without charge. That is, for up to one year under the NSA – purportedly to prevent a potential future crime. It violates nearly all due process rights, including most notably, the presumption of innocence.

The NSA states that the government can pass a detention order for a maximum period of three months at one go. But the total period of detention can be 12 months. Hence, the day before the end of the initial three-month period in May; the state extended Khan’s detention by another three months.

The Precedent

The Aligarh Chief Judicial Magistrate’s order granting bail to Kafeel Khan in February acknowledged the prosecution’s apprehension that he might commit the same offense again if released on bail. But added that “the prosecution may revoke bail”. Nonetheless, the NSA passed the order ensuring his ‘capture’ even after court orders. This goes against a 1985 Supreme Court order setting aside an NSA detention which was passed on the same grounds. The Apex Court had said in case of such an apprehension, the right course of action would be to oppose the bail application in court; or to challenge the grant of bail in a higher forum.

Hence, the increased frequency and the ease with which preventive detention has been invoked over time presents the need before the Indian legal system to develop safeguards to ensure fair procedure before restraining the liberty of persons. In United States v Salerno, the U.S. Supreme Court established a few safeguards to prevent misuse of Preventive Detention powers. These included, ‘right to counsel’ as an essential element of proceedings, strict adherence to speedy trial requirements, hearing within a reasonably short time of arrest, and others. 

While safeguards exist in India, but by the time such safeguards come into picture, justice gets delayed and hence, denied.

The Role of the Advisory Board

The NSA allows the central government and each state government to constitute one or more advisory boards. Advisory Board makes an opinion as to whether the grounds made out, are sufficient to preventively detain a person. If the Advisory Board finds the grounds sufficient then the appropriate government may confirm the order for detention. However, if the Advisory Board finds no appropriate grounds to permit detention, then the government shall have to release the detenu. 

Moreover, while the Act says the board can hear the person detained, it doesn’t allow him/her to be represented by a lawyer. The law further says that the proceedings of the advisory board and its report shall be confidential, barring the part in which the board has given its opinion on whether there is sufficient cause for the detention.

Notably, in Kafeel Khan’s case as well, the only reference to the board was made in the extension order, which said there was “sufficient cause” to detain him. If the accused stands as a serious threat to public order to justify preventive detention, then there seems little reason why the government cannot successfully pinpoint its contentions.

The Way Forward

Therefore, it’s surprising to see how preventive detention finds its place in the chapter where other fundamental rights are granted. There have been various instances of misuse of Preventive Detention powers for political benefits or to curb free speech and expression. Dr. Kafeel Khan’s is most certainly only one in thousands. Increased use of this power, often to curb dissenting voices poses a genuine need to increase transparency in the government’s power to detain a person. Of course, ensuring transparency would mean re-considering the laws that fail to protect the basic rights of an individual and that cannot be compromised.

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