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Too Many Undertrials

The NewsClick Verdict

Bharat Dogra

The welcome extended by several organizations of journalists as well as civil liberties organizations to the Supreme Court’s decision on granting bail to Prabir Purkayastha as well as strong supportive comments by leading newspapers indicate wider public feelings that this senior editor and science activist has suffered serious injustice which requires remedial actions.

In fact, there is a strong case for the government itself taking back its case against him. Mistakes can be made and there is honour, certainly no loss of face, if the government itself initiates actions to undo any mistakes that were made either due to misunderstandings or otherwise.

Prabir Purkayastha has been widely known for his science activism and research. He was a founder-member of Delhi Science Forum which took up several important issues of national interest. Prabir’s contributions were more in the context of electricity, telecom, and software. Much of this work was in opposition to the increasing grip of multinational companies and in favour of policies relating to self-reliance. At a much later stage of his career, Prabir became known as the founder-editor of NewsClick portal, a news and media organization known for raising many questions regarding government policies. This is a legitimate democratic role, the kind of role very much needed for the health of a democracy and one reason for the decline of Western democracies particularly US democracy is that there has not been adequate criticism by their mainstream media of the terrible foreign policy mistakes that these governments have been making. The very idea that NewsClick or any other media organization can be prosecuted for publishing articles and reports supportive of the farmers’ movement, to give just one example, is outrageously anti-democratic. The BJP/Jana Sangh were also in the opposition for most of the time and people only had to look at the files of the Organiser and their other publications to see how much criticism they routinely and continuously made of governments at that time, sometimes using very strong language too. This was tolerated by governments because governments in democracies generally should give adequate room to critical voices and in particular avoid taking repressive steps against critical journalists.

Hence it is not surprising that in a country that has been used since independence to democratic practices, actions such as those against Prabir and NewsClick have upset many people and the journalist community in particular. The Hindu, a very prestigious newspaper, wrote in an editorial titled ‘Malign Motive’ (May 17), “The Supreme Court of India’s order invalidating the arrest and remand of News Click founder Prabir Purkayastha is much more than a technical outcome based on the failure of the Delhi police to furnish the grounds for his arrest in writing. It is also an indictment of the clandestine manner in which the police sought to obtain his custody. As if invoking the Unlawful Activities (Prevention) Act against the web portal was not malign enough—the case seems fictional in its entirety, and establishes no overt act that can even be described as unlawful, much less a terrorist act—the police seemed to have resorted to what the Court called a ‘blatant attempt to circumvent the due process of law’.”

The Indian Express has done well to include three comments on this issue on May 17. In its editorial titled ‘A Welcome Message’ this prominent newspaper has stated, “Supreme Court order in NewsClick case is heartening, reinforces the importance of due process, regardless of the offense.” Further, this editorial commented, “In a legal system where the process can often be a form of punishment, the integrity of so-called technical procedures must be impeachable.”

In fact, this editorial goes on to comment on some wider issues of great importance for civil liberties. The Indian Express notes that 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) and Unlawful Activities (Prevention) Act (UAPA). Official NCRB data showed, this editorial notes, that PMLA cases grew by 450% in the first three years of the current government’s second term, compared to the same period in the first term.

An article titled ‘A Right to Fairness’ written by Faizan Mustafa ( Vice Chancellor, Chanakya National University, Patna) and published in the Indian Express (May 17) has argued that this Supreme Court verdict in NewsClick case affirms that adherence to due process is more than a procedural requirement. Further this article has noted that although in 2023 the Supreme Court had termed preventive detention laws as a colonial legacy with great potential of abuse; India continues to have several stringent preventive detention laws, both at the Centre and state levels. As per the NCRB over 12,000 people were in prisons in 2021 under such laws and 76 percent of prison inmates were under- trial in 2022. Unfortunately, this article says, the part of the 44th amendment on preventive detention has not been notified even after 46 years.

In an article published by The Tribune (May 17) titled ‘Stringent laws have made prolonged detention norm’ a senior advocate Sriram Panchu stated, “The flaw in this case was a gaping one… Yet, and this is what should disturb us, it has taken the judicial system more than half a year to release him (Purkayasha)…The chief problem is the monstrous nature of the laws under which many detentions are made–UAPA and PMLA… Purkayastha’s long detention is particularly disturbing because courts worldwide are usually quick to examine cases of journalists being held in preventive custody.”

India’s leading newspaper The Times of India has published (May 17) an article titled ‘Courting the Cops, Always’ written by Naveed Mehmood Ahmad, Senior Resident Fellow at the Vidhi Centre for Legal Policy. This article has argued that the Supreme Court order in the NewsClick case shows trial court judges are authorizing detentions casually. With around 50 lakh arrests a year and thousands of remand applications a day, they must apply judicial scrutiny.

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Frontier
Vol 56, No. 49, Jun 2 - 8, 2024