Kafeel Khan case: UP's refusal to comply with court order grim example of how states can subvert Constitution

The Allahabad High Court on Tuesday ordered the charges under National Security Act against Dr Kafeel Khan to be dropped and released him from the preventive custody. While ordering the release, the court based its reasoning on the traditional understanding of our Constitution as a limitation on the functions of the State. This means that the constitutional rights can’t be violated by the governments, irrespective of the fact which politician or political party is in power. The court argued: “The system of governance is to promote fraternity with assurance to maintain the dignity of every individual as well as unity and integrity of the nation. The strong and valuable fabric of our nation is well designed with support of fundamental rights given in Part-III of the Constitution. These rights are golden thread in the fabric, which is further illuminated by extending protection of life and personal liberty under Article 21 of the Constitution of India.” The court has argued here that the idea of the nation as dictated by our Constitution can’t be without the essential ingredients of fraternity and protection of fundamental rights. Interestingly, the court has relied on the intent of the government more to arrive at the conclusion, rather than mere facts. It has agreed with the fact that the speech, in certain parts by, Khan is problematic but how the State machinery reacted to it, was not right either. The court has explicitly pointed out that the speech was made on 12 December, 2019, but Khan was only charged under NSA on 13 February, 2020, and later taken into preventive custody. This was done because he was released by the Chief Judicial Magistrate (CJM) court on the very same day, but the state government acted with a mala fide intent and was taken into custody again. Preventive detention as a concept, where a person is apprehended solely because the authorities have a “hunch” that something could go wrong even before an actual crime is committed, should be rarely used by democratic governments. In Khan’s case, he was charged under Section 153A of the Indian Penal Code, for which he was given bail by the CJM court in Aligarh on 10 February, 2020. However, the Uttar Pradesh government didn’t release him. The second release order, which was issued on 13 February, was respected, but he was taken into preventive custody soon after. The series of events are enough to argue that the mala fide intentions of the Uttar Pradesh government are writ large here. Such arbitrary behaviour by any government is unsustainable under any constitutional order and the system of rule of law. It goes against the Constitution as well as the judiciary. The mere wish of a state government to keep a person in detention will never be enough to divest someone of their personal liberty guaranteed under Article 21. There can be no contesting the fact that the proceedings against Dr Khan under Section 153A could be legitimate. But deciding on the punishment is the job of the courts and a state government cannot assume that responsibility. Thus, if the court had ordered his release, the mandate should have been respected in February itself. The system of rule of law provides that the behaviour of the governments should be predictable and consistent under similar circumstances. This also includes a principle of proportionality of State response, which means the State can only accord proportional punishment to the wrongs of individual. If this is not the case, the courts are bound to intervene. It is more important for a conservative to respect the mandate of the courts and the Constitution. This is because the courts are the most conservative institutions in any country. It is so because they function on the basis of precedents and seek to conserve what has happened before, and make sure that it should happen again. One can see lawyers arguing by quoting previous cases to substantiate their arguments because of this reason. Constitutional conservatism, therefore, is necessary to preserve order in a society, much more than preventive detentions. In fact, as argued earlier, the principle of constitutional conservatism should be used by the protesters rallying against the CAA and NRC to approach the court and not settle the constitutionality on streets. This argument is also ironically, premised on the fact that the mandate of the court should be respected by everyone, irrespective of ideologies and political positions. The judicial institution provides a mechanism for redressal in the form of appeals. Apart from that, personal attacks against the members of judiciary, as well as governments not willing to comply the orders are equally reprehensible. The author is an assistant professor of Law at Maharashtra National Law University, Mumbai