Dr Kafeel Khan is a medical practitioner who did his MBBS and MD (Paediatrics) from the renowned Manipal Medical College, Karnataka, and thereafter served as a lecturer in BRD Medical College, Gorakhpur. When several children died in 2017 in the Gorakhpur hospital attached to the medical college for lack of oxygen cylinders, he was arrested and charged for medical negligence.

But the enquiry revealed that there was a shortage of oxygen cylinders in the hospital, and in fact, Dr Khan spent money from his own pocket to obtain some oxygen cylinders for the patients and worked overtime during the crisis. It was also found that he had written letters to several authorities informing them of the shortage of oxygen cylinders, but to no avail. The Indian Medical Association, several doctors of AIIMS, Delhi, and over 200 health professionals and allied activists wrote letters to UP chief minister, Yogi Adityanath, in support of Dr Khan. After spending nine months in jail, he was released on bail in April 2019, and subsequently, acquitted by the court in September 2019 after lack of evidence against him.

On December 12, 2019, Dr Khan gave a speech in an anti-CAA rally at Aligarh Muslim University (AMU). An FIR was lodged a day later on December 13 against Dr Khan for allegedly creating religious disharmony (Sections 153A and 295A IPC) through the speech. More than a month later, the UP police arrested him on January 29 from the Mumbai airport. They brought him to UP. He was granted bail by the Chief Judicial Magistrate of Aligarh on February 10. However, he was not released from Mathura jail, and ultimately, a preventive detention order was passed against him three days later under the National Security Act.

I have carefully heard Dr Khan’s speech in AMU on December 12 via YouTube. He has nowhere spoken against any religious community. All he said was, "We (Indian Muslims) are 25 crore (250 million) people strong, and we cannot be scared by lynching or by making laws".

Dr Khan was voicing the feelings of many Indian Muslims who have the impression that this government is anti-Muslim. No doubt, his speech was strongly emotional, but in a democracy, people should be allowed to vent out some steam. I do not see how this speech could attract Section 153A IPC that makes promoting disharmony on the ground of religion, etc, or Section 295A IPC, which makes outraging religious feelings, a criminal offence.

But, even assuming those provisions were attracted, does it justify passing a preventive detention order under the NSA? It may be mentioned that in preventive detention, no trial is held nor a lawyer permitted. Hence it is undemocratic.

In Rekha vs State of Tamil Nadu (2011), a three-judge bench of the Supreme Court over which I presided observed: “Preventive detention is by its nature repugnant to democratic ideals, and an anathema to the rule of law. No such law exists in the US or England, except in war time. Since, however, Article 22(3)(b) of the Indian Constitution permits preventive detention, we cannot hold it illegal, but we must confine the power within very narrow limits; otherwise, we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution, which was won after long, arduous, historical struggles. It follows, therefore, that if the ordinary law of the land (the IPC and other penal statutes) can deal with the situation, recourse to a preventive detention law will be illegal. Whenever an order under a preventive detention law is challenged, one of the questions that the court must ask is, was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal."

It was also held in Rekha’s case that "no doubt, it has been held in the constitution bench decision in Haradhan Saha’s case that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22. Article 22(3)(b) is only an exception to Article 21, and is not itself a fundamental right. It is Article 21 that is central to the whole chapter on fundamental rights in our constitution. The right to liberty means that before convicting a person, a trial must be held in which he must be given opportunity of placing his defense. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the criminal law (IPC etc) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to."

As regards Dr Khan’s speech on December 12, first, I do not see how it attracts Sections 153A or 295A of the IPC. Second, even if it does, surely those provisions are sufficient to deal with the situation. The preventive detention order under the NSA is, therefore, clearly illegal, and should be struck down by the court.

Dr Khan and his family have been victimised by the government. His brother was shot in 2018, but luckily survived. He and his family have been bankrupted. Dr Khan has said people have stopped doing business with his family for fear of antagonising the chief minister.

Jinhe naaz hai Hind par woh kahaan hain?

Justice Markandey Katju retired from the Supreme Court in 2011.

The opinions expressed in this article are those of the author's and do not purport to reflect the opinions or views of THE WEEK.