The Supreme Court on Tuesday told Delhi Police that judicial orders remanding 74-year-old journalist and online portal NewsClick founder Prabir Purkayastha will crumble if his arrest turns out to be illegal.
A Bench of Justices B.R. Gavai and Sandeep Mehta quizzed the police on their rather hasty operation to pick up Mr. Purkayastha in the early hours of October 3 last year.
He was rushed to the Magistrate, who passed an order at 6 a.m. remanding him to custody.
Mr. Purkayastha, who was charged under the Unlawful Activities Prevention Act, was represented by a legal aid lawyer. His own lawyer was not informed. The police had sent by WhatsApp the details of the arrest and remand to Mr. Purkayastha’s lawyer after the order for his custody was passed.
Senior advocate Kapil Sibal, for Mr. Purkayastha, said, “When we asked why we were not informed, the police said it was 6 a.m. The FIR was not given to us. We applied. The police objected. The grounds of arrest were not communicated.”
He said 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,” Mr. Sibal submitted.
Justice Mehta turned to Additional Solicitor General S.V. Raju with some tough questions.
“Was he given the grounds of arrest? Unless you give him the grounds, how can he defend himself or apply for bail?” Justice Mehta asked the law officer.
Mr. Raju said Mr. Purkayastha was “orally informed” about the grounds for his arrest.
“But now, giving them in writing is necessary… Look, if your arrest was illegal, the subsequent orders will also be illegal,” the judge cautioned the police.
If the arrest was bad, the right to re-arrest subsisted, Mr. Raju replied.
Justice Mehta said the chargesheet was filed at the end of March. “You are a premier agency, yet you are not able to get sanction and file a chargesheet within 180 days?” the judge queried.
Mr. Purkayastha, who has been incarcerated for over six months now, was accused of using Chinese funding to promote “anti-national propaganda” through digital media. The Delhi Police had named Mr. Purkayastha, activist Gautam Navlakha, who is under house arrest in another terror case, and U.S.-based businessman Neville Roy Singham.
Mr. Sibal said his plea fell squarely within the ambit of a recent Supreme Court judgment in the Pankaj Bansal case, which held that the Enforcement Directorate should provide an accused a written copy of the grounds of his or her arrest.
“The Delhi Police said the judgment covered a Prevention of Money Laundering Act (PMLA) case. This was a case under UAPA. Under the UAPA, you need to only ‘inform’ the grounds of arrest to the accused. It is with PMLA that grounds have to be given in writing… But should I not get the grounds in writing to go to the Magistrate to ask for bail? The police cannot say it has the grounds but will withhold them from me,” he argued.
The case was reserved for judgment.
Recently, several journalists’ collectives from across the country had written to the Chief Justice of India to take cognisance and check the “inherent malice” behind the raids at the homes of 46 journalists, editors, writers and professionals connected to NewsClick and the seizure of their electronic devices.
The collectives had said “journalism cannot be prosecuted as terrorism”. The letter had said the invocation of the UAPA was “especially chilling”.
