Opinion Express View on SC order releasing Prabir Purkayastha of Newsclick: A welcome message

Two fundamental principles of jurisprudence — “bail not jail” and “innocent until proven guilty” — are diluted in cases brought under “special” laws like the Prevention of Money Laundering Act (PMLA), Narcotic Drugs and Psychotropic Substances Act and the Unlawful Activities (Prevention) Act (UAPA). In these, investigating agencies and the prosecution are granted extraordinary powers of arrest and detention. In essence, such laws shift the burden of proof on the accused. Stringent provisions also place a high threshold for the grant of bail. By invalidating the arrest of Prabir Purkayastha, founder-editor of the portal Newsclick, the Supreme Court has upheld in principle and practice the constitutional protection offered to citizens under Article 22(1). The state argued that since Purkayastha is accused of serious offences such as “terrorist acts” and “raising funds for terrorist acts”, he should not be released on a “technicality”. The Bench of Justices B R Gavai and Sandeep Mehta said that every accused “has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest”.

In a legal system where the process can often be a form of punishment, the integrity of so-called technical procedures must be unimpeachable. Article 22(1) states that “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.” In Pankaj Bansal vs Union of India (2023), the SC held that furnishing “a written copy of the grounds for arrest” was mandated under the PMLA. In Purkayastha’s case, it found that since a similar provision exists in the UAPA, the accused should have been provided with the grounds of arrest before his detention. He was not. Essentially, and significantly, the Court has said that a fundamental right is not watered down in UAPA cases.

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The Court made it clear that Purkayastha’s release — he was granted bail by the trial court hours after the SC order — was not a comment on the merits of the case or the charges against Newsclick. The order does, however, underline the perils of what has become in practice an alternate justice system, meant to deal with “heinous” crimes. The provisions in such laws are, arguably, justifiable in exceptional circumstances, especially with respect to national security. However, their use has surged: NCRB data showed a 23 per cent rise in UAPA cases in 2022 compared to previous years, while the PMLA cases grew by 450 per cent in the first three years of the current government’s second term, compared to the same period in its first term. This context makes the SC’s order all the more welcome. It affirms once again the Court’s role as the guardian of individual rights. It is also a message to investigating agencies: Due process, and the “technical” procedures that comprise it, cannot be circumvented.