Declaring the arrest of NewsClick founder and editor Prabir Purkayastha as ‘illegal’, the Supreme Court ruled that a person arrested for any reason has “a fundamental and a statutory right” to be informed about the grounds of arrest in writing. A bench of Justices BR Gavai and Sandeep Mehta passed the verdict on Wednesday, May 15, while hearing an appeal petition filed by Prabir against the Delhi High Court order upholding his arrest. Prabir was accused of getting funds from American millionaire Neville Roy Singham to spread ‘Chinese propaganda’ and was arrested in a Unlawful Activities (Prevention) Act (UAPA) case on October 3, 2023.

Quashing the Delhi HC order against Prabir, the SC also slammed the Delhi police for appointing an advocate who was not of Prabir’s choice and producing him before the court at 6 am in the morning. The “entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law,” the court said, adding it was an attempt to confine Prabir to police custody without informing him the grounds on which he has been arrested.

The apex court observed that neither Prabir nor his counsel were furnished with a copy of the remand application until the court passed the remand order on October 4, 2023. Stating that the grounds of arrest were not communicated to him in writing, the court said that the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India. Article 22(1) states that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest nor shall they be denied the right to consult, and to be defended by, a legal practitioner of their choice.

The court ruled that any infringement of this fundamental right would vitiate the process of arrest and remand. It also added that just because a charge sheet has been filed, it does not “validate the illegality and the unconstitutionality committed at the time of arresting the accused” and remanding them.

The court also defined the difference between “reasons for arrest” and “grounds of arrest”, as the Delhi police contended that furnishing grounds of arrest in writing was fulfilled by the serving of the remand application. It ruled that ‘reasons for arrest’ indicated in the arrest memo are “purely formal parameters” and intended:

• to prevent the accused person from committing any further offence; 

• for proper investigation of the offence; 

• to prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner;

• to prevent the arrested person from making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer.

The ‘grounds of arrest’, on the other hand, would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused, the bench said. It added that these grounds must convey to the arrested person all the basic facts on which they were being arrested so as to provide them an opportunity of defending themselves against custodial remand and to seek bail.

The bench further said that informing the arrested person the grounds of arrest is “salutary and sacrosanct”, and cannot be breached under any situation. The court also reiterated that the top court’s consistent view in the matter has been that when the liberty of a citizen is curtailed, the grounds on which it is done must be communicated in writing to enable them to seek remedial measures against the deprivation of liberty.

“Noncompliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal,” the apex court observed.

The SC noted that the arrest memo stated that Prabir was arrested on October 3, 2023 at 5.45 pm, and observed that he had to be produced before a magistrate within 24 hours. This gave the investigating officer “a clear window” till 5.44 pm on October 4, 2023. Despite that, the court noted that Prabir was produced before a remand judge at his residence sometime before 6 am on October 4, 2023, without informing his advocate Arshdeep Khurana, who was in fact present at the police station after his arrest. Instead, a remand advocate Umakant Kataria, who had never been engaged by Prabir, was presented before the magistrate by the Delhi police at 6 am. A remand advocate is appointed by the district legal services authority (DLSA) in the absence of the accused's own advocate.

The police “deprived 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,” the SC said, slamming the Delhi police. 

Prabir had approached the Supreme Court with an appeal against the Delhi High Court order that upheld his arrest by the Delhi police. A case was registered against NewsClick on August 17 based on a New York Times article, invoking various sections of the UAPA and the Indian Penal Code (IPC) related to jeopardising stability, integrity, sovereignty, and national security.