Prabir Purkayastha's release is a useful reminder that institutional pushback against patent illegality — howsoever routine it may appear to be — goes a long way in upholding the rule of law.
On the morning of 15 May, the Supreme Court ordered the immediate release of the NewsClick founder and editor, who, till yesterday, had already endured more than seven months of incarceration for alleged offences under the Unlawful Activities (Prevention) Act, 1967 (UAPA). A legal culture which genuinely values the ideals of liberty and due process would lament seven months of incarceration without trial. In India, however, Purkayastha's ‘early’ release left many surprised.
One can hardly blame the onlooker for this misplaced astonishment, for Purkayastha's stint of seven months does seem relatively short when compared to, say, an Umar Khalid who, absent trial, continues to be a UAPA arrestee since 2020.
By its sheer ubiquitousness, the hackneyed phrase of the process being the punishment has now cemented itself in an ordinary Indian’s imagination. The resultant effect is that when we now encounter well-deserved liberty, like in the case of Prabir Purkayastha, it leaves us nonplussed. This is largely attributable to judicial attitudes which refuse to scrutinise basic procedures so as to ensure that in cases where liberty is curtailed, every constitutional and legal compliance has been strictly adhered to.
Yet, judgments such as the one in the case of Prabir Purkayastha, illustrate that a court which is mindful of constitutional fetters on curtailment of liberty, will go to the root of the matter and invalidate fundamental illegalities to protect individual freedom.
The judgment in Prabir Purkayastha, in turn, relies heavily on and draws majorly from another judgment of the Supreme Court in the Pankaj Bansal case from October 2023 which directed, inter alia, that in all cases of arrest under the Prevention of Money Laundering Act, 2002 (PMLA), a copy of the written grounds of arrest has to be furnished to the arrested person.
With Prabir Purkayastha, the Supreme Court has now extended the logic of Pankaj Bansal to arrests under the UAPA as well, thereby giving full meaning to the prescription of Article 22(1), even under the UAPA regime.
UAPA and PMLA: Assumed Criminality and Abuse of ‘Discretion'
Enough literature discussing the draconian nature of the PMLA as well as the UAPA already exists; the question of their constitutionality lies pending with the Supreme Court. One common thread which runs through these legislations is the reverse onus operating against the accused, which shifts the burden on them to prove their innocence.
A natural corollary of this anomaly is that the investigative agencies authorised under the PMLA and the UAPA enjoy wide latitude to exercise ‘discretion’ and push the contours of what constitutes a legal procedure. Over the years, a majority of our courts have refused to read down the rigour of these laws and have upheld incarcerations and the accompanying procedure.
One need not even go into the question of the independence of investigation agencies to understand why an excessively broad presumption of legality shielding their actions is inherently dangerous. These investigative agencies are not only tasked with enforcing the mandate of the respective legislations, they also decide ‘when’ to investigate and ‘who’ to proceed against. It is important then, that the process which the agencies adopt is informed with sufficient checks which protect against any arbitrary action.
In the absence of inbuilt safeguards, it becomes incumbent upon the courts to insert such safeguards into the law by judicial exposition. However, this has scarcely happened.
A long-standing impunity, settled by mechanical remand orders and the imprimatur of constitutional courts, allows investigative agencies to argue that there is no constitutional mandate that the grounds of arrest or detention should be conveyed in writing to the accused or the detainee (Prabir Purkayastha, Para 10(iv)).
The Importance of Insisting on Procedure
The judgment in Pankaj Bansal put the much-needed brakes on the manifest violation of Article 22(1) under the PMLA regime. As a substantial progression, Prabir Purkayastha goes a step further to note that the requirement to furnish written grounds flows from Article 22(1) first, and the relevant statutory provisions later.
In doing so, Prabir Purkayastha traces the origin of the obligation to provide written grounds from a higher, primary source, that is, the Constitution, and elevates it to the status of a fundamental right. Pankaj Bansal, therefore, acts as a necessary conduit which takes the court to such primary source.
The court’s emphasis on providing ‘grounds for arrest’ further clarifies that remand hearings — and first production hearings, in particular — cannot be conducted in a mechanical manner, with remand courts simply acting as rubber-stamp authorities. An accused must know the specific basis of his or her arrest so as to present a material defence in the first production hearing; the remand court, similarly, has to apply its mind to such material defence and then adjudicate the question of the legality of the arrest.
If there is any procedural lacuna which precludes an arrestee from putting up a substantial defence, no subsequent action such as the filing of a charge sheet would cure the initial defect in procedure.
Prabir Purkayastha, thus, marks a welcome departure from a culture of adjudication which reposes unwarranted trust in the version and methodologies of the prosecution. Where liberty and individual freedom are at stake, adherence to the due process of law — one which is fair, just, and reasonable — assumes utmost importance.
By insisting on due procedure, the Supreme Court has affirmed that even under draconian laws such as the UAPA and the PMLA, the guarantee of a fair trial cannot be reduced to a mere formality.
(Harshit Anand is an advocate practicing at the Supreme Court of India. He tweets at @7h_anand. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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