Why is it in the news?
1.The Supreme Court of India invalidated the arrest and subsequent remand of News Click Web portal founder-editor Prabir Purkayastha under the unlawful activities (Prevention) Act and ordered his immediate release.
2.The editor was arrested on 3rd October last year by Delhi police on the allegation of attempts to show Kashmir and Arunachal Pradesh as not parts of India, discrediting the government’s fight against covid-19; funding the farmer’s agitation and putting up a spirited defence of legal cases against Chinese telecom companies. He was remanded in police custody the next day. His lawyer was informed of the grounds of arrest on October 5th.
3.In the first information report, the police booked him u/s 13 (unlawful activities), u/s 16 (terrorist act), u/s 17 (raising funds for terrorist acts), u/s 18 (hatching conspiracy) and u/s 22 C (offences by companies, trust) of UAPA. In addition, section 153 A (promoting enmity between different groups) and section 120 B of the Indian Penal Code were also slapped against him.
4.The Supreme Court of India held that the right to be informed about the grounds of arrest flows from article 22 which says that an arrested person shall be informed of the grounds of arrest and shall be allowed to consult a lawyer of his/her choice. Any infringement of these fundamental rights would vitiate the process of arrest and remand. The mere fact that a charge sheet was filed in the case would not validate the illegality committed at the time of arrest. The court quashed the arrest but said that its judgement was not a comment on the merit of a case against the editor of Newsclick Prabir Purkayastha.
5.The Supreme Court held that communication of grounds of arrest or detention in writing by the investigating agency or police was sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal.
6.The Supreme Court of India held that the entire exercise was done in a clandestine manner and was nothing but a blatant attempt to circumvent the due process of law; to confine the accused to police custody without informing him the grounds on which he has been arrested; deprived accused of the opportunity to avail the services of legal practitioner of his choice so as to oppose the prayer for police custody remand, seek bail and also to mislead the court.
7.The Supreme Court also held that the arrest memo only contains the reasons for arrest but not the grounds of arrest. There is a significant difference between the reason for arrest or grounds of arrest. The reasons for arrest as indicated as the arrest memo are purely formal parameters like 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 offence ; to prevent the arrested person or 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 investigation officer. Thus, the reason for arrest would apply in all criminal cases whereas grounds of arrest would be required to contain all such details in hand of the investigating officer which necessitated the arrest of the accused. Thus, the grounds of arrest would differ from case to case, whereas reasons for arrest are general in nature.
8. The Supreme Court of India held that there is no significant difference in the language implied in section 19 (1) of PMLA and section 43 B (1) of UAPA which can support the Delhi police’s contention that the law laid down in Pankaj Bansal case should not be applied to an accused arrested under the UAPA. It was argued that remanding of the accused Prabir Purkayastha without providing him in written the grounds of arrest, violated the Supreme Court verdict in Pankaj Bansal vs Union of India (2023) wherein it was held that it would be necessary henceforth that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. The Supreme Court of India held that the requirement to communicate the grounds of arrest is the same in both the statutes. As a matter of fact, both the provisions find their source in the constitutional safeguard provided under article 22 (1) of the constitution of India. The judges emphasised that salutary and sacrosanct requirements of informing the arrested person of the grounds of arrest in writing will henceforth apply to all UAPA cases as well. It will not suffice to convey them orally only. The court reasoned that this is the only effective means for the arrested person to consult his lawyer, oppose the police custody remand and seek bail.
What is article 22?
1.Article 22 grants protection to the persons who are arrested or detained. It has two parts - the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law. The first part of article 22 confers following rights on a person who is arrested or detained under an ordinary law. These are -
Right to be informed of the grounds of arrest.
Right to consult and be defended by a legal practitioner.
Right to be produced before a magistrate within 24 hours of the arrest excluding the time taken in journey.
Right to be released after 24 hours unless the magistrate authorises further detention.
The above rights are not available to an enemy alien or a person detained under a preventive detention law.
The Supreme Court also held that arrest in the first part of the article 22 does not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax and deportation of an alien. They apply only to an act of a criminal or quasi criminal nature or those activities prejudicial to public interest.
2.The second part of the article 22 grants protection to persons who are arrested under a preventive detention law. This protection is available to both citizens as well as aliens. It includes -
The detention of a person cannot exceed three months unless an advisory board consisting of two High Court judges recommend sufficient cause for extended detention.
Grounds of detention should be communicated to the arrested person. However, the state is not required to disclose those facts which are considered against the public interest.
The detenu should be afforded an opportunity to make a representation against the detention order.
The Parliament can make law with regard to the detention of the person for more than three months without obtaining the opinion of an advisory board, the maximum period for which a person can be detained under preventive detention law and the procedure to be followed by an advisory board in an inquiry.
Both Parliament and state legislature can make laws on preventive detention in respect of the security of the state, the maintenance of public order and maintenance of supplies and services essential to the community.
3.The Parliament has made several preventive detention laws since the adoption of our constitution.
Preventive detention act 1950. It expired in 1969.
Essential services maintenance act, 1968.
Maintenance of internal security act (MISA), 1971. It was cancelled in 1978.
Conservation of foreign exchange and prevention of smuggling activities act (COFEPOSA), 1974.
National security act (NSA), 1980.
Prevention of black marketing and maintenance of supplies of essential commodities act, 1980.
Terrorist and disruptive activities (prevention act) (TADA), 1985. It was repealed in 1995.
Prevention of illicit traffic in narcotics drugs and psychotropic substances act, 1988.
Prevention of terrorism act (POTA), 2002. It was repealed in 2004.
Unlawful activities (prevention act) (UAPA), 1967. It was amended in 2012 and 2019.
To Conclude - The extraordinary provision of preventive detention was inserted into part III of our constitution because of the extraordinary situation prevailing when the constitution was being drafted. The partition of India led to the exodus of 15 million people, ten lakh people were killed and around one lakh women were raped. The communal feelings were at its peak. So, to fight out the communal riots and mass murder, preventive detention was resorted to by our constitution. It should be noted that during the British period, the Bengal regulation of 1818, Rowlett Act of 1919 and Defence of India Act, 1939 provided for preventive detention. In European countries and in the USA, there is no such provision like preventive detention. So in spite of the stiff opposition from the members of the constituent assembly, the provision for preventive detention was kept in our constitution.
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