Why the SC’s decision to term the NewsClick founder’s arrest “illegal” is important - Hindustan Times

Why the SC’s decision to term the NewsClick founder’s arrest “illegal” is important

May 21, 2024 08:19 PM IST

Recently, Prabir Purkayastha, the founder and editor-in-chief of NewsClick, was released on bail after spending seven months in custody.

Last year, Prabir Purkayastha, the founder and editor-in-chief of NewsClick, was arrested for allegedly infusing foreign funds to push Chinese propaganda. He was charged under the anti-terror law, the Unlawful Activities (Prevention) Act (UAPA), and sections of the penal code for promoting enmity between different groups and criminal conspiracy.

NewsClick founder Prabir Purkayastha. (File)(HT_PRINT) PREMIUM
NewsClick founder Prabir Purkayastha. (File)(HT_PRINT)

His arrest on October 3, 2023, at 5:44 pm, marked the start of the twenty-four-hour arrest window. In what the Supreme Court has termed a ‘hot haste,’ he was brought before the remand magistrate at his residence early the next morning and remanded to seven-day police custody by 6 am.

Purkayastha’s appeal challenging the arrest and remand was based on the following grounds. First, that his arrest and detention were illegal, as neither the grounds of arrest nor a copy of the FIR was provided to him. Second, he was remanded to police custody in the absence of a legal counsel of his choice.

Pre-Trial Safeguards

Arrest and remand are crucial stages in a criminal case, and are well rounded with procedural safeguards stemming from constitutional and statutory requirements. The act of arrest engages with the constitutionally recognised right to liberty and challenges the basic tenant of criminal law – innocent until proven guilty. Therefore, the need arises that these stages should justifiably be checked with safeguards intended to protect the fundamental rights of the accused.

As per a constitutional mandate, an arrested person must be brought before a Magistrate within the first 24 hours of arrest. At this stage, the police can either request police custody to complete the investigation or judicial custody, which means sending the person to prison. Over the years, several judgments of the SC have come in to keep a check against police excesses at these stages of arrest and remand.

In the judgment declaring Purkayastha’s arrest illegal, the SC emphasised the importance of complying with the requirements under Article 22 of the Constitution i.e., to inform the arrested person of the grounds for their arrest (sub-clause 5), and to ensure they can engage a legal counsel of their choice (sub-clause 1).

Both these safeguards are grounded in basic principles of fair trial – an accused must have a fair and adequate opportunity to defend themselves at all stages, including remand proceedings, to challenge the arrest, remand, and/or seek bail.

The court rejected the additional solicitor general’s argument that any irregularity in arrest and remand would be rectified once an investigation is conducted and a charge sheet is filed. Instead, it held that such irregularities would render the subsequent remand and detention illegal.

“Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused,” the court remarked.

Grounds of arrest must be known to the accused

The Supreme Court meticulously differentiated between the 'reasons for arrest,' which are formalities outlined in the arrest memo, and the 'grounds of arrest’, which are specific to the arrested individual and must encompass all investigative details warranting the arrest. The Court interpreted Article 22(5) strictly, emphasising that the grounds for arrest must be communicated in writing and a language comprehensible to the accused person. Otherwise, if an arrested person does not understand the accusations, it will be impossible to make an effective defence against detention.

In previous rulings, the SC has strongly advocated for the written communication of the grounds of arrest to be provided to the accused.

A day before Purkayastha’s arrest under the charges of UAPA, the SC through its judgment in the Pankaj Bansal case, had laid that merely providing oral translation or explanation does not fulfil the constitutional mandate outlined in Article 22(5). The court delivered its verdict on an arrest made under the Prevention of Money Laundering Act (PMLA), 2002.

Purkayastha’s counsel, Kapil Sibal, argued that such arrest provisions under PMLA and UAPA are ‘pari materia’ (broadly, similar case), and thus the safeguard would also apply, a point affirmed by the court.

If the grounds are only orally explained to the detainee without anything in writing in a language they understand, then the purpose of communication is not fulfilled. Moreover, providing a written copy serves two important purposes: first, it serves as clear evidence, if the communication is disputed, compared to the conflicting claims of the arrested person and the police officer. Secondly, the constitutional objective goes beyond informing the arrested person of the reasons for their arrest; it is also to ensure they can engage legal counsel and mount a meaningful defence throughout the trial, starting from the remand stage.

Presence of legal counsel of choice at the time of remand

At the time of the NewsClick founder’s arrest, his advocate presented himself at the police station and provided his contact details as his appointed legal counsel. However, given the hurried first production at odd hours, information about the proposed remand application was not sent to the engaged counsel.

In India's adversarial legal system, access to competent legal representation is indispensable at every stage of the trial, extending even to situations before formal arrest, when individuals may be called to police stations merely as suspects or witnesses. The National Legal Services Authority (NALSA), in its document, Early Access to Justice, delineate the pre-trial stages as pre-arrest, arrest, and remand and establish the need for legal assistance at all these stages.

The initial appearance, or 'first production,' before a judge entails several pivotal considerations: Was the arrest justified? Was it executed by procedural norms and due process? Are there any allegations of custodial abuse? Should the individual be detained for further police investigation, and if so, for what duration, or should they be placed under judicial custody? Furthermore, should a bail application be entertained, and if so, under what terms and conditions?"

However, to access these safeguards and present a robust defence, having adequate legal representation is paramount, as mandated by the Constitution to be a legal counsel of choice.

In the case at hand, due to the absence of the chosen counsel, Purkayastha was represented by a remand advocate in these proceedings. Although a copy of the remand order indicated that the police's remand application was forwarded to his appointed legal counsel, the Court found this aspect of the remand order to be a subsequent addition.

It appears to have been included after the remanding judge heard the accused's counsel, by which time Purkayastha had already been remanded to police custody, rendering it an 'exercise in futility'.


The Supreme Court's ruling declaring Purkayastha's arrest illegal in a UAPA case is a welcome step as it serves to constrain the extensive powers wielded by the state under anti-terror legislation. It essentially reaffirms that procedural safeguards, whether the offence falls under the PMLA or UAPA, must be consistently applied.

The fundamental rights, emanating from Articles 22(1) and (5) of the Indian Constitution, are inviolable and cannot be violated under any circumstance. Any breach would render the custody or detention illegal, a situation that cannot be rectified by subsequent orders or the filing of a chargesheet.

In constitutional safeguards, statutory requirements, and principles of fair trial and criminal law alike, the essence lies in the vigilant protection of personal liberty through due process of law. The judgment emphasises that such protection must transcend mere procedural formalities, constituting a substantive safeguard of fundamental rights.

Shrutika Pandey is a lawyer and researcher specialising in access to justice. She engages in developing strategies to advance the rights of undertrial prisoners through legal representation, research, and advocacy. The views expressed are personal

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