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Supreme Court Ruling, Newsclick Founder’s Arrest Deemed Illegal Due to Procedural Lapse

Newsclick founder and editor Prabir Purkayastha was ordered to be released by the Supreme Court on Wednesday, May 15, validating his arrest in a terror case. The Delhi Police did not notify Purkayastha of the reason for his detention prior to placing him in custody, according to the court’s reasoning.

The decision made by a bench chaired by Justice B R Gavai is noteworthy because it highlights the need of due process and correct procedure as barriers against arbitrary action, especially in severe circumstances of terrorism.

On October 3, 2023, at around 6.30 am, Purkayastha was taken into custody by the Delhi Police Special Cell. Newsclick got funding for pro-China propaganda, according to the Delhi Police, who claimed this under the Unlawful Activities (Prevention) Act.

The FIR listed the following as serious offences: Sections 153 A (inciting animosity between various groups) and 120B (criminal conspiracy) of the Indian Penal Code (IPC), as well as 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.

In Purkayastha’s case, the remand hearing was held at 6.30 a.m. on October 4, 2023, at the home of a special judge, without any previous notice. Purkayastha’s solicitors asserted that they were notified of the proceedings via phone at approximately seven in the morning, per their client’s request.

Purkayastha’s solicitors were informed that the remand order had already been approved and that seven days of police custody had been granted, despite the fact that objections to the remand had been lodged before 8 am.

Significantly, court documents indicate that the remand order was signed at 6 a.m., even before Purkayastha was brought before the judge or his attorneys were notified.

Not until a few days after his detention was the FIR in the case made public.

In short, Purkayastha’s case was that his arrest was unlawful since it was not carried out in accordance with due process.

Article 22(1) of the Constitution, which is about protection against arrest and detention, reads: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”

Significantly, on October 3, 2023, the same day on which Purkayastha was arrested, the Supreme Court, in Pankaj Bansal versus Union of India, held that to give true meaning to constitutional and statutory mandates, “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”.

Although the Pankaj Bansal case concerned an offence related to money laundering under the Prevention of Money Laundering Act (PMLA), the UAPA also has a section that requires the justification for the arrest to be given. Given the similarity of the two laws, it would be assumed that the decision also applied to UAPA.

This “technicality” is important since it is nearly hard to obtain bail under strict special laws like the PMLA and UAPA due to the high threshold for granting bail. Thus, in cases of serious violations, the safeguard against wrongful arrests is even more crucial.

The Delhi High Court heard arguments from Solicitor General Tushar Mehta, representing the Delhi government, who stated that the charges against Purkayastha “are very serious, and as such ought not to be interfered by this court on technical grounds.”

Mehta had cited email exchanges between Purkayastha and “other entities,” which indicate “a deliberate attempt to show the state of Jammu and Kashmir and Arunachal Pradesh as disputed territories,” and had invoked India’s national security, stability, and integrity.

The Delhi High Court had said in its ruling on October 13, 2023, affirming Purkayastha’s arrest, “so much so that the words used for Arunachal Pradesh in particular are “Northern frontier of India,” which, according to the learned SG, is generally used as a Chinese propaganda.”

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