Criminalizing Dissent

In these days of doom and gloom, of Covid virus sweeping across the land exacting a heavy toll on life, of shockingly depressing news on the economic front, war-like scenes created on our borders.  And, only the other day the head of the Supreme Court Bar Association, barred from speaking at a farewell meeting arranged for a retiring judge for reasons well understood even when unstated. Or, the Chief Justice of Allahabad High Court as the head of a two-judge bench warning with anguish of criminalization of dissent in the country. Even otherwise, things not going exactly the way they are tom-tommed to be going.

Hardly a situation that would send your spirits soaring. Certainly not exactly in tune with the spirit of a thriving democracy.  So, against such a gloomy backdrop every little bit helps.  Just the thing you needed.  You keep assuring yourself, more fiction than reality in the given situation.  Such indeed was the scene when the Allahabad High Court granted a virtually fresh lease of life to the beleaguered Dr. Kafeel Khan, not a celebrity, an upright man, by no means a star, yet keen on seeking his little place under the Indian sun.  Dr. Kafeel Khan! who? where? When? Well the same pediatrician from Gorakhpur, the U.P Chief Minister Adityanath’s backyard.

Yes, the same Dr. Kafeel who was virtually pilloried for stating the truth and then trying to suggest the way out of a crisis that had developed in the medical college-cum-hospital where he worked. The hospital had run out of critical oxygen supplies as several children died as a consequence of lack of attention.  Khan was pilloried for being truthful and has been in and out of prisons and his job ever since.  He continues to be jobless, though, much to his and his family’s relief he was declared a “free” man by the Allahabad High Court during the week.  How free? Only time will tell. For one thing there is that little matter about his job: will he or how soon if at all, will he be back in his job.  That depends on the Chief Minister’s whim.

Clearly, the due process was violated in Khan’s first arrest and subsequently for his speech in Aligarh Muslim University on the citizenship legislation.  Unfortunately a building pattern of draconian-laws being misused by the state to cramp Dr. Kafeel’s right to free speech and dissent, even as a quiescent court looked on or away.  This, when the supreme court had ruled that incitement to public disorder or violence was key to judging a speech as seditions. In recent times, though, authority has frequently invoked the provision to criminalize free speech and clamped down on dissent with the judiciary, especially the lower courts more often than not, giving the State the benefit of the doubt and delay. Dr. Khan’s speech at AMU in December contained scathing criticism of the Citizenship (Amendment) Act; and its discriminating nature and was routinely deemed inflammatory weeks after he had made it.  The Allahabad High Court has found that far from inciting Muslims, the speech, taken in its entirety, does not disclose any effort to promote hatred or violence and nowhere did the Aligarh speech threaten peace in Aligarh.  The grounds for detention under NSA provided nothing that indicated any attempt by Dr. Khan to disturb peace and tranquility between the speech in December and his arrest in February.  The inevitable inference is that the NSA was invoked only to avoid releasing him following the Chief Judicial Magistrate’s court order granting him bail.  The process to invoke the NSA itself began only after the bail order, the Chief Justice Govind Mathur and Justice Soumitra Dayal Singh, comprising the bench noted. The use of stringent security laws against political dissenters, in the absence of any appeal to violence, is something to be condemned in all cases.  However there is something perverse about resort to preventive detention just to frustrate the bail orders.  In particular the authorities have shown excessive zeal in dealing with Dr. Khan.  In 2017, he was arrested on charges of negligence and corruption even though circumstances indicated his strenuous efforts to ensure continuous oxygen supply (to the Gorakhpur hospital where he was working at the time).  He spent months in prison before an inquiry absolved him of the charges of negligence and corruption, but was “found” to have been engaging in private practice. His suspension from his post at the hospital is yet to be revoked.  Even though the verdict gives him relief, it comes after he spent seven months in jail.  And his case will some day go to trial.  The bench noted that the case of Dr. Khan is poor advertisement for India’s democratic credentials, for it brings to light its propensity to criminalize dissent, single out individuals for persecution and display a general disregard for basic rights the Allahabad High Court concluded.