More wins against arbitrary arrests

SC has struck again for rule of law, and against authoritarian exercise of powe

The release of Prabir Purkayastha, founder and editor-in-chief of NewsClick, and Gautam Navlakha, a human rights activist, ordered by the Supreme Court in two separate cases, is a victory for justice and due process. The orders also amount to a serious censure of the police and the government. 

The court declared Purkayastha’s arrest wrong and “illegal”, and underlined the need to adhere to lawful arrest procedures and safeguard individual rights. Both cases had raised concerns about the misuse of anti-terror laws to stifle dissent, including freedom of speech, and to target critics of the government. Purkayastha was held in 2023 in connection with alleged foreign funding and anti-national activities; Navlakha was arrested in 2020 in connection with the Bhima-Koregaon case.

The arrests have been criticised as arbitrary and vindictive exercises of power for political reasons without convincing evidence to support the cases purportedly made out against them. 

The court quashed Purkayastha’s arrest and a subsequent remand order for not disclosing to him in writing the grounds for the arrest and held that the failure to do so was tantamount to diluting the fundamental rights guaranteed under the Constitution.

It also made the strong comment that the entire process of his arrest was done “in a clandestine manner, and was nothing but a clandestine attempt to circumvent the due process of law”. The court expanded an earlier judgement to make it clear that a person arrested under any law had the right to be informed of the grounds of arrest “as a matter of course, without exception and earliest”. 

Due process is the heart of rule of law through which the Constitution comes alive for every citizen to protect them from the arbitrary exercise of authority by those in power. It cannot be short-circuited and should also not be a mere formality. Those in positions of authority must adhere to both form and substance of due process.

The arrest has to be preceded by an investigation and the grounds of arrest should contain the details of the investigation. Any arrest that does not comply with this requirement becomes invalid and an arbitrary exercise of power. 

While granting bail to Navlakha, the court pointed out another failure of justice. It noted that he has been in custody for more than four years and that the trial would take a long time to complete.

There are 370 witnesses in the case, six of his co-accused have already been released on bail and the charges against him are yet to be framed. The Mumbai High Court had earlier noted that “no covert or overt terrorist act has been attributed to him under the UAPA”. Purkayastha spent eight months in jail and Navlakha lost his freedom for four years.

The judgements show how the  principles of rule of law and tenets of justice were violated in their cases. A law enforcement system that does not respect citizens’ rights is an arbitrary, authoritarian system.