The TLDR: Dr Kafeel Khan walked out of Mathura Jail after spending nine months in custody thanks to a ruling by the Allahabad High Court. The paediatrician was first arrested three years ago and has since been arrested multiple times. His case reveals how the government—be it in Uttar Pradesh or Delhi—has wilfully misused the law to impose a most unjust ‘order’. 

Remind me, who is Kafeel Khan?

He is a paediatrician at Gorakhpur’s BRD Medical College. Three years ago, he was widely credited with saving the lives of children in the encephalitis ward—when the hospital unexpectedly ran out of oxygen. Despite his best efforts, 63 children died as a result of that tragedy. But within days, Yogi Adityanath’s government suspended the doctor—and blamed him for the deaths.

Since then he has been charged with a variety of crimes and has been in and out of jail. 

What are the charges?

It’s a very long and damning list:

• Khan was first arrested in September 2017 when he was charged with culpable homicide, criminal intent to murder, negligence and having a private practice while employed by the government.
• Khan spent seven months in jail until he got bail in April 2018.
• A month later, he was arrested for creating a ruckus at a hospital—where he was investigating the deaths of children. 
• He was let go but arrested again the very next day for opening a bank account using fake documents. The police claimed Khan had made transactions worth Rs 2 crore through this account, including paying for his medical studies at Manipal University.
• In September 2019, a departmental inquiry cleared him of all charges relating to Gorakhpur. But the UP government has since set up its own inquiry which is still underway.
• In December 2019, Khan participated in a number of protests against the Citizenship Amendment Act. 
• He was first charged with making “inflammatory” remarks—including references to “mota bhai” (Home Minister Amit Shah) and the RSS in a speech on December 12—and arrested for that crime in January. 
• The reference to Shah was as follows: “Mota Bhai teaches us that we will become Hindu or Muslim but not human by CAA, we will be made second class citizens after that by implementation of NRC they will trouble you by saying your father's documents are not correct you will be made to run around. This is a fight for existence and we will have to fight.”
• Khan secured bail and was set to be released on February 13 when the Yogi government brought the big gun out—i.e. the National Security Act.

The latest case: is the most serious as it involves the draconian and dreaded NSA. As per this law, the accused does not have any of the usual rights. 

• A person does not have to be informed of the reason for arrest. 
• They do not have the right to demand bail, to be represented by counsel or to be produced in court within 24 hours of an arrest. 
• As a result, Khan spent three months in custody—which was extended again for another three months in May, and again in August. 
• The reason: the NSA allows the accused to be detained for three months at a stretch—which can be renewed for up to 12 months. 
• And his hearing was deferred 14 times due to various reasons, including the pandemic!

So why was he released now?

His mother filed a habeas corpus petition in the Supreme Court—demanding that the government produce Khan in court. This was delegated to the Allahabad High Court which finally ruled on the case. And here’s what the 42-page judgement said:

"A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. Also nowhere threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent."

That’s a great victory!

Yes, but no one knows how long his freedom will last—including Khan who has now left the state “due to safety reasons and fear of being falsely implicated.” According to Khan, the NSA charges were just another way to silence him on the real reasons for the Gorakhpur tragedy. And the plan was to keep him quiet during the pandemic, as well:

"The health system in Uttar Pradesh is broken. They know I speak on health issues,  that is one of the reasons why they want to keep my mouth shut... think they wanted to keep me in jail till 2022."

Not just Khan: State governments across the country have arrested numerous student protesters—and left them languishing in jail—under the equally draconian Unlawful Activities Prevention Act (UAPA). Students in Delhi are accused of engineering the Delhi violence—and more specifically, of advocating and executing “a secessionist movement in the country by propagating an armed rebellion against the lawfully constituted government of the day.”

On the day of Khan’s release, one of the protesters—Devangana Kalita—was finally granted bail in one of the many cases against her. She has been charged with rioting, unlawful assembly and attempt to murder. But unlike Khan, she will not walk free. The reason: She has also been booked under UAPA for being part of a “premeditated conspiracy” to trigger riots. And her bail plea for one of the other four cases was rejected.

The bottomline: Government now has a ‘blanket bombing’ strategy to squelch dissent. The MO is simple. Throw as many charges as possible at a person. Ensure that at least one invokes a law that offers little protection to the accused. And sit back in the happy knowledge that at least one will keep them in prison for a very long time.

Reading list

Article 14 has the highlights of the judgement on Khan—or read it in its entirety here. The Print offers a good summary of the way the UP government has targeted him. Amnesty International made a strong case for student protesters. Scroll reports on the ruling in Kalita’s latest case. Business Standard offers a succinct overview of the NSA. Indian Express explains UAPA.