Supreme Court ruling in Prabir Purkayastha case sets a positive precedent regarding arrest of individuals

The ruling, declaring the detention of the NewsClick editor-in-chief unlawful, calls for strict adherence to constitutional rights during arrests.

Prabir Purkayastha, founder of NewsClick after his release from prison. | Photo Credit: SPECIAL ARRANGEMENT

The Supreme Court bench of Justices B.R. Gavai and Sandeep Mehta has held the arrest of NewsClick’s editor-in-chief, Prabir Purkayastha illegal, and directed his release from custody after furnishing bail and bonds to the satisfaction of the trial court. Purkayastha was released from Rohini Central Jail, Delhi, on Wednesday night.

Purkayastha was arrested by the Delhi Police in October last year with a memo that did not contain a column stating the “grounds of arrest”. He was arrested in connection with offences punishable under Sections 13, 16, 17, 18, 22C of the Unlawful Activities (Prevention) Act, 1967 (UAPA) read with Section 153A, 120B of the Indian Penal Code, 1860 (IPC). The Delhi High Court rejected Purkayastha’s challenge to his arrest.

On Wednesday, the Supreme Court set aside the Delhi High Court order, through a reasoned judgment, authored by Justice Mehta. Purkayastha’s counsel was provided a certified copy of the First Information Report (FIR) filed against him only on October 5, 2023 well after he was remanded to police custody. Although it would appear to be just a procedural infirmity, Article 22(1) of the Constitution has elevated the right of the arrestee to be promptly informed of the grounds of arrest before being detained in custody to be a fundamental right.

By sheer coincidence, the Supreme Court highlighted the significance of this provision in Pankaj Bansal v Union of India, on October 3, 2023, the very day Purkayastha was arrested. The Supreme Court emphasised in Pankaj Bansal that the conveyance of the grounds of arrest to the arrested person should be meaningful and purposeful in view of Article 22(1).

The bench accepted Purkayastha’s counsel, Kapil Sibal’s contention that in Pankaj Bansal, the Court interpreted Section 19(1) of Prevention of Money Laundering Act (PMLA) which is pari materia to the provisions contained in Section 43B(1) of the UAPA.

The Delhi High Court had, however, noted in its October 13, 2023 judgment that the case against Purkayastha falls under the UAPA, directly impacting the stability, integrity, and sovereignty of the country and bearing significant national security implications. Therefore, the High Court had held the judgment in Pankaj Bansal inapplicable to Purkayastha’s arrest.

The Delhi High Court, however, had failed to lift the veil behind the Delhi Police’s FIR against Purkayastha. Sibal submitted to the Supreme Court that the FIR alleging offences under the UAPA had been registered purely on conjectures and surmises without any substance to the allegations set out in the report. The contents of the FIR, which was shared with Purkayastha much later, discloses a purely fictional story without any fundamental facts or material warranting its registration, Sibal argued.

Chinese propaganda?

The Solicitor General, Tushar Mehta had submitted before the Delhi High Court that email exchanges between Purkayastha and other entities indicated an attempt to portray Jammu and Kashmir and Arunachal Pradesh as “disputed territories”. The Solicitor General had also claimed that the emails used the term “Northern Border of India”, which he asserted was generally used as Chinese propaganda.

Based on these superficial claims, the Delhi High Court had held that the allegations against Purkayastha were serious. The Supreme Court, however, refrained from examining the merits of the allegations against Purkayastha at this stage.

In Ram Kishor Arora v Directorate of Enforcement, the Supreme Court had held the judgment in Pankaj Bansal to be prospective in operation. This, Sibal had submitted before the Supreme Court, would not come in the way of Purkayastha seeking relief. Sibal submitted that the action of the Investigating Officer in arresting and in seeking Purkayastha’s remand was not only mala fide but also fraught with fraud of the highest order.

Clandestine remand

Tracing the sequence of events surrounding Purkayastha’s arrest, Sibal disclosed to the Supreme Court that the journalist was kept confined overnight, and was not given the grounds of arrest. He was later presented in the court of the Remand Judge early in the morning of October 4, 2023 without informing Arshdeep Khurana, the advocate engaged on behalf of Purkayastha. In order to clandestinely procure police custody remand of Purkayastha, the investigation officer presented him at the Remand Judge’s home before 6 a.m. after informing a remand advocate (Umakant Kataria) who had never been engaged by Purkayastha to plead his cause.

Protesters wave placards after the arrest of NewsClick’s founder and editor-in-chief Prabir Purkayastha in October, 2023, in Bengaluru. | Photo Credit: Abhishek Chinnappa

Khurana was informed of the remand order by a WhatsApp message at 7:07 a.m. but it was an exercise in futility because there was no possibility of him reaching the residence of the Remand Judge in time to oppose the prayer for remand. The order clearly showed that the Remand Judge had accepted the application at 6 a.m. and signed the proceedings at the same time. This sequence made it clear that the remand order was passed without giving Purkayastha or his advocate a copy of the grounds for the arrest.

Sibal alleged that Purkayastha was intentionally deprived of information about the grounds for his arrest and thereby he and his advocate were prevented from opposing the police custody remand and from seeking bail.

Sibal submitted that the foundational facts in the 2023 FIR against Purkayastha are almost identical to the allegations set out in the FIR registered against him in 2021 under PMLA. Purkayastha was then granted protection against arrest by the Delhi High Court. Owing to this protection, Sibal alleged that the mala fide objectives of the authorities in putting Purkayastha behind bars was not being served, and therefore, another FIR was registered in 2023 with cooked-up allegations. The journalist, he said, was deprived of his liberty as he was neither given a copy of the FIR nor informed of the grounds for his arrest.

In its judgment, the Supreme Court held that there is no significant difference in the language employed in Section 19(1) of the PMLA and Section 43B(1) of the UAPA, which can persuade it to take a view that the interpretation of the phrase “inform him of the grounds for such arrest” used by it in the case of Pankaj Bansal should not be applied to an accused arrested under UAPA.

The Supreme Court held that the provisions that lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied. The purpose of informing the arrested person of the grounds for arrest is salutary and sacrosanct as this information would be the only effective means for the person to consult his advocate, oppose the police custody remand and seek bail, the Supreme Court held.

The bench agreed with Sibal that Purkayastha’s arrest was done in a clandestine manner and it was a blatant attempt to circumvent the due process of law, to confine him to police custody without informing him of the grounds for arrest, to deprive him the opportunity to avail the services of the legal practitioner of his choice so as to oppose the prayer for police custody remand, to seek bail, and also to mislead the court.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.