NewsClick founder-editor Prabir Purkayastha steps out of jail after Supreme Court holds his arrest under UAPA invalid

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By Our Correspondent

NEW DELHI – Veteran journalist and online news portal NewsClick’s founder-editor Prabir Purkayastha, 74, arrested by the Special Cell of Delhi Police on October 3, 2023, has walked out of Tihar Jail here after the Supreme Court on May 15 held his arrest and remand under the draconian Unlawful Activities Prevention Act (UAPA) as “invalid in the eyes of law”, requiring his release from custody.

Purkayastha, who was incarcerated for over six months, was accused of using Chinese funding to promote “anti-national propaganda” through digital media. Multiple journalist collectives and institutions had opposed the raids at the homes of 46 journalists, editors, writers and professionals connected to NewsClick and seizure of their electronic devices, culminating in the arrest of its founder-editor under the UAPA, and expressed solidarity with Purkayastha.

The septuagenarian journalist was arrested on the basis of a First Information Report (FIR) registered on August 17, 2023. The copy of the FIR was not uploaded in the public domain. Purkayastha’s request to provide him a copy was ignored by the police. He was given a copy of the FIR only after he was remanded to police custody by a Sessions Judge at 6 a.m. on October 4, 2023. His lawyer, Arshdeep Khurana, was informed about the grounds of arrest on October 5, which was 24 hours after he was remanded to police custody.

The FIR came days after The New York Times published a report on August 8, 2023, claiming that NewsClick received money from American millionaire Neville Roy Singham, allegedly an active member of Propaganda Department of the Communist Party of China, to distort the map of India by projecting Kashmir and Arunachal Pradesh as disputed territories.

The police alleged that Purkayastha received Rs. 115 crore worth of foreign funds. The Special Cell of Delhi Police searched 88 locations in Delhi and seven states as part of its investigation. Around 300 electronic gadgets were also seized from the offices of NewsClick.

A two-judge Bench of the Supreme Court, comprising Justice B.R. Gavai and Justice Sandeep Mehta, said neither Purkayastha nor his designated counsel was provided the grounds of his arrest in writing.

The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution and any infringement of this fundamental right would vitiate the process of arrest and remand, Justice Mehta, who authored the judgment, held.

The FIR against Purkayastha included allegations of attempts to show Kashmir and Arunachal Pradesh as “not parts of India”; discrediting the government’s fight against COVID-19; funding the farmers’ agitation and “putting up a spirited defence of legal cases” against Chinese telecom companies.

As per the arrest memo, Pukayastha was arrested on October 3, 2023, at 5.45 p.m. by invoking stringent UAPA provisions on the ground that he had received funds through Chinese firms to spread pro-China propaganda. Earlier, 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 120-B (criminal conspiracy) of the Indian Penal Code.

However, the court held that the mere fact that a chargesheet was filed in the case would not validate the illegality committed at the time of arrest and initial remand to police custody. The court also held that the rule to communicate the grounds in writing would extend equally in the case of detentions.

“Like arrests, the grounds of detention should also be communicated in writing to a detainee. Any lapse would be a violation of Article 22(5) of the Constitution, which mandates that a person under detention should be communicated the grounds of the detention order and allowed to make a representation against the detention at the earliest opportunity,” the judgment stated.

Communication of grounds of arrest or detention in writing by the investigating agency or police was “sacrosanct and cannot be breached under any situation”. “Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal,” the apex court declared.

Providing arrested persons or their lawyers the written grounds of arrest was made mandatory under the Prevention of Money Laundering Act by the Supreme Court in its Pankaj Bansal case judgment in 2023. The court has extended the same rule to UAPA cases through the latest verdict in Purkayastha’s case.

The Supreme Court concluded that Purkayastha was left heavily handicapped when his personal liberty was hanging by a thread on October 4 morning. “This entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprive the accused of the opportunity to avail the services of the legal practitioner of his choice so as to oppose the prayer for police custody remand, seek bail and also to mislead the court,” Justice Mehta concluded in the scathing judgment.

Additional Solicitor General S.V. Raju, for the Delhi Police, had argued that Purkayastha was orally informed about the grounds of his arrest. Senior advocate Kapil Sibal, for Purkayastha, had countered that the power to arrest was not a discretionary one. “It should be supported by solid reasons. After all, a person’s liberty was taken away,” he had submitted.

Agreeing with Sibal, the Bench quashed Purkayastha’s arrest, the subsequent orders of the trial court remanding him, and set aside an October 13, 2023 order of the Delhi High Court upholding the veteran journalist’s incarceration.

“There is no hesitation in the mind of this court that the copy of the remand application, in the purported exercise of communicating the grounds of arrest in writing, was not provided to the accused-appellant (Purkayastha) or his counsel before the passing of the order of remand dated October 4, 2023. This vitiates his arrest and subsequent remand,” the Supreme Court held.

However, the court said Purkayastha should furnish bail bonds for his release as a chargesheet had already been filed in the trial court by the police in the case. The court also said that its judgment was not a comment on the merits of the case against Purkayastha.

Hours after the Supreme Court’s verdict, Pukayastha was released from Tihar Jail on furnishing of bail bonds worth Rs. 1 lakh, as directed by Additional Sessions Judge Hardeep Kaur, with the condition that he will not contact the witnesses and approvers associated with the case. The court also directed him not to talk about the merits of the case or travel abroad without the court’s permission.

The lawyer representing the Special Cell of the Delhi Police had earlier requested the court to set the condition that Purkayastha must not contact anyone whose name is “reflected” in the chargesheet but later decided not to press for it. Purkayastha’s lawyer Arshdeep Singh pointed out that the name of his partner Githa Hariharan was also in the chargesheet.

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