The Supreme Court on Tuesday said it felt “no hesitation” whatsoever to conclude that the arrest and remand of 74-year-old journalist and online portal NewsClick founder Prabir Purkayastha under the draconian Unlawful Activities Prevention Act (UAPA) by the Delhi Police are “invalid in the eyes of law”, requiring his release from custody.

A Bench of Justices BR Gavai and Sandeep Mehta said neither Purkayastha nor his designated counsel were provided the grounds of his arrest in writing.

A Magistrate court had remanded him into police custody in the early hours of October 4, 2023 even before the senior journalist or his lawyer got a written copy of the reasons of his arrest, vital for him to seek and argue for bail during the remand hearing. In short, the Supreme Court said Purkayastha “was heavily handicapped when his personal liberty was hanging by a thread” on October 4 morning.

Grounds of arrest

“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,” Justice Mehta, who pronounced the judgment for the Bench, held.

After his arrest, the Delhi Police had rushed him to the Magistrate, who passed an order at 6 am remanding him to custody.

Purkayastha was represented by a legal aid lawyer at the remand hearing. The police had not informed his lawyer.

The police team had only WhatsApped the details of the arrest and remand to Purkayastha’s lawyer after the order for his custody was passed.

“When we asked why we were not informed, the police said it was 6 am! The FIR was not given to us. We applied. The police objected. The grounds of arrest were not communicated,” senior advocate Kapil Sibal, for Purkayastha, had submitted on April 30 while arguing for the septegenuarian’s bail.

Sibal had argued that power to arrest was not a discretionary one. “It should be supported by solid reasons. After all, a person’s liberty was taken away,” Sibal had submitted.

Additional Solicitor General SV Raju, for the Delhi Police, said Purkayastha had been “orally” informed the grounds of his arrest.

Taking a strong view against the police’s actions, the Supreme Court said the circumstances showed Purkayastha was “entitled to a direction of release from custody”.

The court applied the ratio of its own judgment in the Pankaj Bansal case to hold that the police should have provided Purkayastha a written copy of the grounds of arrest.

The judgment quashed the journalist’s arrest, his remand and set aside the Delhi High Court decision upholding his incarceration.

Raju had argued that the Pankaj Bansal case applied to money laundering cases and not those under the UAPA. The law officer said UAPA required the police to only “inform” the accused of the reasons for arrest and need not provide them in writing to him.

“The Delhi Police says the Pankaj Bansal judgment covers only a Prevention of Money Laundering Act (PMLA) case, and this is a case under UAPA. But I ask you, should I not get the grounds for my arrest in writing for me to go to the Magistrate to ask for bail? The police cannot say it has the grounds, but will withhold them from me. That amounts to a violation of my right to life and due process of law,” Sibal had countered.

The judgment by quoting the Pankaj Bansal judgment has endorsed Sibal’s submissions.

Bail bonds

However, the court said Purkayastha should furnish bail bonds for his release as a chargesheet has already been filed in the trial court by the police in the case.

‘Though we would have been persuaded to direct the release of the appellant without requiring him to furnish bonds or security, a chargesheet has been filed. We feel it appropriate to direct the appellant to be released from custody on his furnishing bail bonds to the trial court,” the Supreme Court directed.

The court said its judgment was not a comment on the merits of the case against Purkayastha.

After the pronouncement of the judgment, Raju clarified whether this judgment declaring the arrest void would preclude the police from exercising its “correct powers of arrest” in the case in the future.

“We have not said anything about that. Whatever you are permitted under the law, you can do,” Justice Gavai replied.

Purkayastha, who has been incarcerated for over six months now, was accused of using Chinese funding to promote “anti-national propaganda” through the digital media.

The Delhi Police had named Purkayastha, activist Gautam Navlakha and U.S.-based businessman Neville Roy Singham in the case.

Shortly after the arrest, multiple 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 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”.