The Allahabad High Court has done well to set aside the detention of Kafeel Khan, a doctor at Gorakhpur’s BRD Medical College and Hospital, under the National Security Act and order the UP government to release him “forthwith”. Khan has been in jail for nearly seven months, after the NSA was slapped on him for delivering an allegedly “provocative speech” at a protest by students against the discriminatory Citizenship Amendment Act and the proposed National Register of Citizens in Aligarh Muslim University in December last year. The High Court said the speech was “a call for national integrity and unity”, and did not mirror “any effort to promote hatred or violence”. The two-judge bench described the doctor’s detention under NSA, imposed two months after the speech was delivered, as “bad” in law, and based on “selective reading and selective mention of few phrases from the speech ignoring its true intent”. A complete reading of the speech does not disclose any effort to promote hatred or violence, the Court said.
Clearly, due process was violated in Khan’s arrest, in the subsequent slapping of the NSA, and his extended detention. Unfortunately, this is part of a building pattern — of draconian laws being mis-used by the state to cramp the citizen’s right to free speech and dissent, even as a quiescent court mostly looks on, or away. In Kedar Nath Singh, 1962, the Supreme Court had ruled that incitement to public disorder or violence was key to judging a speech as seditious. Yet, in recent times, state authorities have frequently invoked the provision to criminalise free speech and clamp down on dissent, with the judiciary, especially the lower courts, more often than not giving the state the benefit of doubt and delay. This newspaper has scrutinised 10 cases involving free speech that came before the Supreme Court since January this year and found that in four of those cases, in which the court upheld the right to free speech or gave relief, the state and the petitioner had argued on the same side — that is, the court gave no relief to the petitioner in the other six cases where the Centre was the defendant and objected.
The Allahabad HC deserves credit for breaking this disquieting pattern. Its order provides a template for other courts to follow in cases that involve the fundamental rights of citizens and their encroachment by a state armed with repressive and outdated laws. This is especially crucial in times when the spaces for dissent are seen to be imperilled and in need of protection.