Three stories of bail: The resilience of journalists in Dark times
By Arvind Narrain
This month has seen a few reprieves in the otherwise unremitting war against journalists conducted by the Modi government. Aasif Sultan, of the magazine Kashmir Narrator was granted bail by a NIA Court. Gautam Navalakha, who was the editor of EPW and Hans, was released on bail by an order of the Supreme Court. Prabir Purkayastha, editor of the online news portal Newsclick, was also released on bail by a judgment of the Supreme Court.
Aasif Sultan and the war against Kashmiri journalism
Aasif Sultan was first imprisoned in 2018 after he did a cover story on Burhan Vani for the Kashmir Narrator on charges under the UAPA. Sultan received bail in his first UAPA case in April 2022, but before he could be released he was charged under the Public Safety Act. This detention under the PSA was quashed on 7th December 2023 by an order of the Jammu and Kashmir High Court. The High Court release order relied on the ground that since the detenu was not supplied the material on which the detention order was based, the order itself was ‘illegal and unsustainable’.
Following this judgment, he was finally released on February 27, 2024, only to be re-arrested by the J&K Police and booked in another case under the Unlawful Activities (Prevention) Act. This case was challenged in the NIA Court and Justice Sandeep Garndotra, granted him bail on the ground that, ‘the accused has been in the custody for the last 72 days’ and that ‘most of the investigation has been completed’, and ‘the interest of justice will be served’, if the ‘applicant is admitted to bail’. The Court also observed that, ‘ it is well-settled by a catena of decisions of the Apex Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed’.
The relentless persecution of Aasif symbolises a ‘chargesheet against Kashmir’s journalism.’ Aasif’s ‘crime’ has been the practice of journalism, right from speaking to ‘sources’ in search of a story to writing stories which the state took exception to. The iconic green T shirt which he was wearing when arrested said it all, ‘Journalism is not a crime’.
Aasif Sultan was not alone in asserting his constitutional right to freedom of speech and expression, which was deemed to be a ‘crime’ under the UAPA. As the Article 14 website noted, ‘In addition to Sultan’s case, five other journalists—Fahad Shah, Gowhar Geelani, Masrat Zahra, Manan Gulzar Dar, Irfan Mehraj—have faced UAPA cases, and three journalists—Fahad Shah, Qazi Shibli, Sajad Gul—have been booked under the PSA. Two other journalists—Sajad Gul and Irfan Mehraj, are still behind bars.’ There is also the wider attack on Kashmiri civil society and the premier human rights organisation, JKCSS, with Khurram Parvez of the JKCSS, still in jail, charged under the UAPA.
One hopes that the Courts (like the NIA Court and Jammu and Kashmir High Court in the case of Aasif Sultan) will perform their constitutional duty and ensure that journalism and civil society activism are decriminalised.
Gautam Navalakha: the right to bail as a testament to hope
Gautam Navalakha who is both a journalist and a long standing civil rights activist, with the PUDR was imprisoned in 2019 and is finally out on bail after more than four years of imprisonment. The journey has been a long one with the High Court initially disallowing house arrest. It was a judgment of the Supreme Court , which finally allowing Gautam to be detained at home under strict restrictions in 2022. The house arrest was converted to release on bail through a judgment of the Bombay High Court dated 19.12.2023. The basis of the decision was the reasoning of the decision of the Supreme Court in Vernon Gonsalves v NIA. The Bombay High Court concluded that, ‘from the material on record, it appears to us that, no covert or overt terrorist act has been attributed to the appellant’. This meant that under the UAPA, there was ‘no reasonable grounds for believing that the accusation against the appellant is prima facie true’ and the further detention of Gautam Navalakha was not warranted.
Unfortunately on the submissions of the NIA counsel, the High Court stayed its own order for a period of three weeks to ‘enable the NIA to challenge the order before the Supreme Court. The Supreme Court, extended the stay till such time as the ‘Chief Justice posted the matter before the appropriate Bench. Finally, the stay was vacated only in May of 2024, almost five months after the grant of bail by the High Court on the ground that, ‘there is no need to extend the interim order of stay as the appellant has been under incarceration for more than four years. Admittedly, the charges are yet to be framed.’
The release of Gautam Navalakha on bail now means that of the BK-16, seven are now out on bail including Sudha Bharadwaj, Shoma Sen, Anand Teltumbde, Vernon Gonsalves, Arun Ferreira and Varavara Rao. Stan Swamy, died a victim of the state’s callousness in prison. Those still in jail include Mahesh Raut, Hany Babu, Jyoti Jagtap, Sagar Gorkhe , Ramesh Gaichor, Sudhir Dhawale, Rona Wilson and Surendra Gadling.
Prabir Purkayastha’s bail: Lessening the rigours of the UAPA
The arrest of Prabir Purkayastha the editor of Newsclick, under the UAPA in October of 2023 was perceived by civil society organisations as based on scant evidence of any wrongdoing and nothing other than a state led persecution of independent media voices. Purkayastha’s arrest by the Delhi Police was brazen contemptuous of the law as it was effected through a series of procedural irregularities such as not providing a copy of the FIR on arrest, seizing of all electronic devices without providing a hash value and not providing the grounds of arrest.
After seven months of arrest, on 15th May, 2024 a Supreme Court Bench comprising Justice Sandeep Mehta and Justice Gavai released Prabir Purkayastha on bail on the basis that the accused was not informed of the grounds of his arrest. This in the Court’s opinion, was not a mere procedural violation but really about the heart of the constitutional protections to life and personal liberty. Citing another precedent the Court pronounced that, ‘the life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law’. It also held that ‘any attempt to violate such a fundamental right, guaranteed by Articles, 20, 21 and 22 of the Constitution of India, would have to be dealt with strictly.’
At the heart of the decision is a distinction between grounds of arrest and reasons for arrest. The reasons for arrest are ‘purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence’ etc. By contrast the grounds for arrest are specific to the individual and necessarily must contain ‘all such details in hand of the Investigating Officer which necessitated the arrest of the accused’
It is only when the ‘grounds of arrest’ are ‘effectively communicated’ to the accused person that the arrested person has the opportunity of ‘defending himself against custodial remand’ and is able to ‘seek bail.’ Simply put, how is the accused to even defend himself, if he is not given a written communication of the grounds of arrest ? It is only this written document, (not mere oral communication) which is the basis of the accused’s legal challenge to his arrest. This is thus, a key dimension of the right to life and personal liberty in Articles 21 and 22.
The Supreme Court asserts that whatever the extraordinary law, be it UAPA or PMLA, the provisions have to be interpreted in such a way that they conform to the Constitution. Thus arrest under the UAPA as well as PMLA, cannot compromise the right of the accused to effective representation against the arrest. This in sum means that the grounds of arrest have to be communicated to the arrested before he or she is remanded, thereby providing the accused an opportunity of challenging the arrest.
The Supreme Court successfully weaves a procedural protection into a wider constitutional right. This way of thinking of procedure as a key dimension of a constitutional right has a distinguished forbear in the landmark dissenting judgment of Justice H.R. Khanna in ADM Jabalpur v. State of Madhya Pradesh. Justice Khanna had held that, ‘The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure.’
However, the question which can always be asked about the recognition of a procedural right, is that, if the procedural defect is remedied, would the action then be valid ? In this case, can the Special Cell, file another FIR against Prabir Purkayastha, rectifying the procedural irregularity and thereby removing the grounds on which bail was granted ?
The judgement, while hinging its bail order on the procedural point discussed above, is not oblivious to the larger context of an investigative agency misusing its power. The Court in fact contextualizes the reason for bail, within the series of illegalities committed by the Special Cell in effecting Purkayastha’s arrest. Though the FIR was registered in 17 August 2023 the court notes that it was ‘not uploaded on the website by the Investigating Agency’. The FIR was ‘not provided to the appellant despite an application having been made in this regard on his behalf till after the order of police custody remand was passed by the learned Remand Judge.’ A basic right, regarding the reason for arrest was withheld till 5th October,2023 though Purkayastha was arrested on 3rd October, 2023. In spite of the Special Cell knowing the ‘mobile number of the Advocate’, the ‘appellant was presented before the learned Remand Judge at his residence sometime before 6:00 a.m. on 4th October, 2023 without Purkayastha’s advocate being notified. In his place, another advocate ‘was kept present’ as the Court observes, somewhat sarcastically, ‘purportedly to provide legal assistance to the appellant as required under Article 22(1) of the Constitution of India.’ This subversion of the Constitutional right to be defended by a ‘legal practitioner of his choice’ under Article 22(1), the court notes is without ‘rhyme or reason’ as the ‘accused’ had ‘engaged an Advocate to defend himself’.
The Court comes down heavily on the actions of the investigating agency noting that, this was ‘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; deprive 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 Court is also scathing on the contention of the investigating agency that the remand order which was sent to the advocate of the accused amounts to ‘grounds of detention’. It notes that, ‘the grounds of arrest as conveyed to the Advocate are more or less a narration of facts picked up from the FIR which in itself does not indicate any particular incident or event which gave rise to the alleged offences.’
The Supreme Court also alludes to the scant nature of the evidence against the appellant noting that though it was contended that ‘Neville Roy Singham, a foreign national were found to be discussing how to create a map of India without Kashmir and to show Arunachal Pradesh as a disputed area but the fact remains that no such map was prepared or published or was found in possession of the appellant or on his devices till the date of his arrest.’ After noting this it states that ‘We do not feel persuaded to examine these aspects at this stage because the same would require entering into the merits of the case’ and the core issue being examined here is ‘the illegality of the process whereby the appellant was arrested and remanded to police custody’
Keeping in mind these stinging observations by the Supreme Court regarding the work of the investigating agency, it would be foolhardy for the investigating agency to file another FIR on the same facts, thinking that the procedural violation can be rectified and Purkayastha can be put behind bars yet again.
Conclusion
Aasif Sultan, Gautam Navalakha and Prabir Purkayastha symbolize the continuing struggle of journalists in difficult times. In periods of almost total darkness, these bail orders are pin points of light. These judgments and orders provide much needed breathing space and the impetus for all of us to continue to remind the state in Aasif Sultan’s poignant words, that ‘journalism is not a crime’.
(Arvind Narrain is a writer and lawyer. He is also the President of PUCL- Karnataka.)