Why was NewsClick founder Prabir Purkayastha’s arrest invalidated by the top Court? | Explained Premium

NewsClick founder Prabir Purkayastha arrest: Insulating accused persons against arbitrary police action, the Supreme Court said that the intimation of written grounds of arrest is ‘sacrosanct’ and applicable in all UAPA cases

In a significant development, the Supreme Court on May 15 ordered the release of online portal NewsClick founder Prabir Purkayastha from custody after concluding that his arrest and remand under the draconian Unlawful Activities Prevention Act, 1967 (UAPA) by the Delhi Police are “invalid in the eyes of law”.

A Bench of Justices B.R. Gavai and Sandeep Mehta pointed out that neither Mr. Purkayastha nor his designated counsel were provided the grounds for his arrest in writing, which is “sacrosanct and cannot be breached under any situation”. The ruling emphasises the need for law enforcement agencies to adhere to proper procedure and due process, especially, in stringent UAPA cases where there is a reverse burden of proof on the accused. This makes obtaining bail extremely difficult in such cases.

As per the arrest memo, Mr. Purkayastha was arrested on October 3, 2023, at 5.45 p.m. by invoking stringent UAPA provisions on the ground that he had allegedly received funds through Chinese firms to spread pro-China propaganda. Earlier on August 17, 2023, an FIR was lodged by the Delhi Police envisaging serious offences under Sections 13 (unlawful activities), 16 (terrorist act), 17 (raising funds for terrorist acts), 18 (conspiracy), and 22(C) (offences by companies, trusts) of the UAPA, and Sections 153 A (promoting enmity between different groups) and 120B (criminal conspiracy) of the Indian Penal Code, 1860 (IPC).

During the proceedings, senior advocate Kapil Sibal, appearing on behalf of Mr. Purkayastha, contended that the FIR was neither made available in the public domain nor was a copy supplied to him until his arrest and remand in violation of the fundamental right guaranteed under Article 22(1) of the Constitution. Further, the Court was apprised that on the morning of October 4, 2023, Mr. Purkayastha was produced before the remand judge at his residence without intimating his designated lawyer. He was instead represented by a legal aid lawyer whom he had never engaged before. Mr. Purkayastha’s lawyer was finally informed about the remand proceedings at 7.07 a.m. through a WhatsApp message — after the remand order granting 7 days of police custody had already been passed.

Thus, it was argued that the grounds of arrest were neither informed to the NewsClick founder orally nor in writing in violation of the Supreme Court’s verdict in Pankaj Bansal v. Union of India and Others (2023). The top Court had categorically held that to give effect to constitutional safeguards, “it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception”.

On the other hand, Additional Solicitor-General S.V. Raju, appearing for the Delhi Police, pointed out that the ratio of Pankaj Bansal applied only to money laundering cases under the Prevention of Money Laundering Act, 2002, (PMLA), and not those under the UAPA. The law officer argued that the UAPA required the police to only “inform” the accused of the reasons for arrest without providing them in writing to him.

Mr. Purkayastha’s case is based on the constitutional safeguard provided under Article 22(1) of the Constitution, which dictates that no person who is arrested can be detained in custody without being promptly informed of the grounds for their arrest. It further stipulates that an arrested person cannot be denied “the right to consult, and to be defended by, a legal practitioner of his choice”.