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NSA removed from Kafeel Khan, what are the options before them?

The Indian judicial system is based on the principle of “Fiat Justitia Ruat Kylum”. This Latin idiom means that justice should be done in any case, no matter what the consequences.

Despite this, it is a common practice to wrongly put innocent people in jail, prosecute and implicate them.

Many times a large part of the lives of people implicated in such false cases are cut in jail.

Dr. Kafeel Khan

In many cases, the courts also acquit the people imprisoned in such cases, but it does not benefit much. Such innocent people are forced to live with social stigma. Apart from this, there is a lot of hurt on the functioning and livelihood of such people. Even after being released from jail, it is not easy for such people to get a job or make their business and water stand again.

On 1 September 2020, the Division Bench of Allahabad High Court Chief Justice Govind Mathur and Justice Soumitra Dayal Singh ordered the removal of the NSA i.e. National Security Act, 1980 (Rasuka) on Kafeel Khan.

Why was the NSA engaged?

Dr. Kafeel Khan

There was a controversy over the speech given on 12 December 2019 at Aligarh Muslim University (AMU) of Kafil Khan. There were around 600 students protesting against the CAA i.e. Citizenship Amendment Act.

Two months after this, NSA was imposed on Kafeel Khan on 13 February.

Supreme Court Advocate Shashwat Anand says, “The government’s counsel in the court said that the court had no power to interfere with the subjective Satisfaction of the Detention Authority (DM and the state government). Recognized that we are not going to interfere with your subjective satisfaction. “

“But, the court said that we can see the material on the basis of which this assumption has been made. In this judgment, the court has made the entire speech of Kafeel Khan.”

The court has not found this speech objectionable from anywhere, but has said that it talks about uniting the country.

In order to incite religious sentiments against Kafeel Khan, a case was registered in 153A. Later on them, 153B – rhetoric against national unity, 109 – incitement, 505 (2) – to give any statement that spread hatred, damage to peace system, such as a case was registered.

Kafeel Khan was arrested and sent to Mathura Jail on January 29, almost 45 days after the so-called inflammatory speech.

On 13 February, he was imposed on the NSA.

What are the options after release?

Demand for release of Dr. Kafeel Khan

Says Shatwat Anand, “Kafeel Khan’s petition did not ask for compensation. If they did, there was a great possibility that they would get compensation. Many times the court automatically orders compensation even after taking cognizance. However. , Kafeel still has three ways to seek compensation. “

He says, “First, they can file a review for this in the Allahabad High Court. Or else they will have to go to the Supreme Court and demand compensation there.”

The third way is to demand damages in the district court.

Veteran Sharma, Senior Advocate of the Supreme Court, says, “Kafeel Khan may not demand compensation as it may seem that he is doing it for money.”

Vivek Sharma says, “But, they should file a petition in the court. The court administration and the government can be scolded.”

Sharma says that strict action on the administration on steps like imposition of NSA or imprisonment of innocent is not usually done as officials say that we did it with good intentions.

“He has been carved out of a political image. Since January 29, he has lost his earnings and social reputation,” says Anand.

Can those who are implicated in such cases also demand some action against government officials?

Anand says that nothing much can happen in this matter. At most, the court can reprimand the officers.

There is also a big thing about putting them in jail under Rasuka.

Anand says, “Rasuka is a preventive detention. You can be detained without an FIR, without any material. In that case there will not be much for the district officials.”

How will the amount of compensation be decided?

Dr. Kafeel Khan

The amount of compensation is in the form of unliquidated damage, ie a loss that is not fixed, which cannot be accurately assessed.

According to Anand, “In such cases, the compensation seeker demands an estimated amount from the court. After that the court decides how much compensation to be paid.”

In the case of Dr. Kafeel, if there is a demand for compensation and the court orders him to be compensated, then the state government will have to pay this compensation because he was the one who arrested them.

Anand says that the case of convoy will not come under defamation. They can seek compensation for the violation of their rights due to the closure in the wrong law.

Rehabilitation, not the mechanism of return of honor

Dr. Kafeel Khan
Image captionKafeel Khan came into the limelight after the death of 60 children at the BRD Medical College in Gorakhpur.

There are no constitutional arrangements in India under which the state machinery should work towards rehabilitation of these innocent people and their families, return of their honor and provide compensation to them.

The courts in India often express concern over the poor condition of under-trial prisoners. In some cases, compensation is also given to the victims of false cases or police excesses.

However, there is no concrete mechanism to deal with such cases in India. Anand says, “These laws should be considered as ideal. But, they have no binding value, that is, governments are not obliged to do this.”

Under-trial prisoners , in false cases framed to

Dr. Kafeel Khan

Article 14 (6) of the International Covenant on Civil and Political Rights (ICCPR) mentions the rights of wrongly convicted victims who are later proven innocent or pardoned when such substantive facts are revealed. Those who prove the failure of the justice system by punishing an innocent. Article 14 (6) of ICCPR provides for compensation of innocent people according to law.

Says eternal Anand, “Article 9 (5) of the ICCPR states,” Any person unlawfully arrested or detained has the legal right to seek compensation. “

Article 15 of ICCPR says that no person shall be arrested under any act which is not an offense under national or international law.

All the countries around the world have legalized their commitments made under Article 14 (6) of ICCPR. These countries have either enacted laws to implement them or left it to the discretion of the administrative or judicial institutions in which cases they declare compensation and in which not.

Accepted the ICCPR but did not make the law

India has also accepted the ICCPR. However, no domestic law has been enacted here to rehabilitate or compensate those who have been wrongly imprisoned or sentenced in false cases.

Such victims have very limited options in the current legal framework.

Victims jailed in false cases can file cases to compensate for the loss.

Previous cases in which the court ordered compensation

Why didn’t Dr. Kafeel Khan come out of jail till now

Indian courts have also been realizing the right to personal life and liberty and have decided to award compensation in appropriate cases. However, experience suggests that such relief is rarely available to anyone.

For instance, in 2018, the Supreme Court announced a compensation of Rs 50 lakh to former ISRO scientist Nambi Narayanan. 24 years ago, he was detained for leaking government confidential information.

In the earliest cases, in 1983, the Supreme Court ordered Rudal Shah to be given a compensation of Rs 30,000 for being wrongly kept in jail for 14 years despite being acquitted.

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