The debate on freedom of speech and expression is not new in India; however, when State uses stringent law like National Security Act against Dr. Kafeel Khan in a vindictive manner, then its time to open your eyes and see the reality. At the same time, the law regulating protest, which resulted in violence should also be examined to understand a clear picture.
The Division Bench of the Allahabad High Court presided by the Hon’ble Chief Justice held that imposing of National Security Act is totally illegal and directed immediate release of Dr. Khan from the custody. The Judgment has been rightly hailed by various people as progressive and it will revive public confidence in the judiciary. The Hon’ble High Court while examining the NSA went on to hold that a complete reading of the speech, prima facie does not disclose any effort to promote hatred or violence. It also said that nowhere it threatens peace and tranquillity of the city of Aligarh. The address was given by Dr. Khan call for national integrity and unity among the citizens. But certain questions still remain unanswered:
Do these observations give a complete clean chit to Dr. Khan regarding the alleged communal hate speech including the criminal case in which he was released on bail?
How will the trial Court which is of subordinate nature to the High Court examine witnesses and evidence in a trial on the same alleged hate speech, once there is a contrary prima facie opinion by the High Court?
The Hon’ble High Court has correctly scrapped the arbitrary use of the National Security Act against Dr. Khan and its further extension, However, the Hon’ble High Court has made several observations in the Judgment which may adversely affect the criminal trial pending against Dr. Khan. Even though Hon’ble High Court acknowledged this fact that the alleged hate speech is a subject matter of a different criminal case and it would not be appropriate to comment on that; however, it went on examine the intent of the whole speech and make such observation which may amount to prejudging the issue. The High Court cannot assume the power of the trial court and examine the issue directly.
Dr. Khan was lodged in jail since 29 January 2020. The allegation against him was delivering a provocative hate speech at the Aligarh Muslim University on 10.12.2019 during the Anti-CAA/NRC protests. On 13.12.2019 at the instance of the Sub-Inspector of Police a criminal case was lodged against Dr. Khan under Section 153-A (promoting enmity between different groups on grounds of religion), S. 153B (disharmony or feelings of enmity or hatred or ill-will), S. 109, and S. 505(2) of IPC. During the course of the investigation, Dr. Khan was arrested on 29.1.2020. On 10.2.2020 he was directed to be released on bail by the Court of Judicial Magistrate.
The State authorities instead of releasing on bail imposed the National Security Act on almost similar charges. His detention was extended in August for another three months.
A habeas corpus petition was filed seeking his release of Dr. Khan on grounds that the U. P. government had framed him illegally. In the petition, his mother had stated that her son had been granted bail in February this year but the District Magistrate had slapped NSA on him before he could be released from the jail.
The Hon’ble High Court held that imposing of NSA was illegal and the District Magistrate had selectively read and mentioned few phrases from Dr. Khan’s speech ignoring the true intent, something not sufficient to detain Dr. Khan under the NSA.
The Court did not find any justifiable reasons for Dr. Khan’s detention under the NSA and rejected the story of the detention order framed by the District Magistrate and asked the government to release him immediately. However, it must be recalled that criminal proceedings are still pending in the alleged hate speech case and Dr. Khan was only released on bail in that case. The prima facie observation made by the High Court regarding the merits of the case might adversely affect the trial of the criminal case pending against Dr. Khan.
In my opinion, the manner in which NSA was imposed and extended clearly shows malafide on part of the State. However, the Hon’ble Court while quashing NSA charges should have restrained from making such strong prima facie observations which may adversely affect not only the pending cases but also the hierarchy of administration of the criminal justice system.
Justifiably or unjustifiably, Dr. Khan has been made accused of offenses under Section 153 A and 153B, 109, 505(2) Indian Penal Code, and unless the said criminal cases have been quashed expressly it will proceed for trial, but the observation in Judgment by the Hon’ble High Court regarding the merits of the case will cause prejudice to the prosecution.
The Hon’ble High Court while examining the validity of imposing the NSA declared that the speech does not promote religious enmity rather it protects the National integrity. These observations by the Hon’ble High Court may virtually exonerate Dr. Khan from pending the criminal cases without any trial or examination of witness or evidence. The Hon’ble High Court under its Writ jurisdiction does not physically examine the witnesses rather it relies upon pleading and affidavit available on the record.
Even though High Court has ample power to quash the pending criminal proceeding of a similar nature in extraordinary jurisdiction, however the same was not under-challenged and neither High Court expressly quashed the proceeding the pending criminal case.
The manner in which state authorities imposed NSA to prosecute Dr. Khan can be relevant to assume that the pending criminal case on a similar allegation is also a frivolous proceeding. However, only authoritative judicial pronouncement would establish the same after examining evidence and witnesses. Now due to the observations in the present judgment, the judicial principle of a fair trial may be hampered.
While imposing NSA the prosecution also alleged that when violence broke out in AMU two more criminal cases had been registered against some known and some unknown persons. It was alleged that as a result of the fierce speech given by Dr. Khan on 12.12.19 and the consequent aforesaid acts, the public order in Aligarh district was disrupted. Even though it has been righty held that imposing the NSA is illegal, however, Dr. Khan will still be prosecuted under the Indian Penal Code, especially in light of Judgment of the Supreme Court in In Re: Destruction Of Public & Pvt. Property vs State Of A.P. & Ors., 2009 in which a 3 Judge bench of Hon’ble Supreme Court considered how far the leaders of the organizations can be caught and brought to trial when public property is damaged in the direct actions called at the behest of such organizations.
The Court observed that in almost all such cases the top leaders of such organizations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organization would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders, being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair. Of course, it is normally difficult to prove the abetment of the offense with the help of direct evidence.
The SC said that this flaw can be remedied to a great extent by making an additional provision in the Prevention of Damage to Public Property Act, 1984 to the effect that specified categories of leaders of the organization which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offense. The SC further observed that at the same time, no innocent person, in spite of his being a leader of the organization shall be made to suffer for the actions done by others. This requires the inclusion of a safeguard to protect such innocent leaders.
After considering various aspects the Supreme Court decided to recommend that prosecutions should be required to prove (i) that those accused were the leaders or office bearers of the organization which called out the direct actions and (ii) that public property has been damaged in or during or in the aftermath of such direct actions.
At that stage of a trial, it should be open to the court to draw a presumption against such persons who are arraigned in the case that they have abetted the commission of an offense. However, the accused in such case shall not be liable to conviction if he proves that (i) he was in no way connected with the action called by his political party or that (ii) he has taken all reasonable measures to prevent causing damage to public property in the direct action called by his organization. Recently in Koshy Jacob vs Union of India (2017), SC again reiterated the guidelines laid down in the 2009 judgment.
It is an admitted fact that violence occurred in aftermath of the speech delivered by Dr. Khan and others, however, whether his speech can be held responsible for such violence is to be considered by the trial court’s inappropriate criminal proceeding and not in the present case. The High Court reasoning for illegally imposing National Security Act ought not to be considered as a complete clean chit to Dr. Khan regarding the alleged hate speech as the judgment itself call it only a prima facie view and also held that it won’t comment on pending proceedings.
Even though the Hon’ble High Court in its extraordinary jurisdiction can still quash the said criminal proceeding. However, the same cannot be done implicitly in the present case.
Today it may be unpopular and rather harsh to even ask Dr. Khan to stand trial for the alleged hate speech. However, the law must be allowed to take its own course; and only an appropriate legal forum and at an appropriate proceeding can be decided whether the speech given by Dr. Khan falls within the ambit of free speech or not.
This Article is written by Yasharth Kant who is an Advocate on Record at the Supreme Court of India. His twitter handle is @yasharthkant and he can be reached on email at yasharthkant@gmail.com.
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