After being arrested earlier on Tuesday by the Delhi police in a case registered under the stringent Unlawful Activities (Prevention) Act, NewsClick founder and editor-in-chief Prabir Purkayastha and human resource head Amit Chakravarty have been produced before Additional Sessions Judge Hardeep Kaur at the Patiala House Courts three times.

The first time was late on Tuesday, when Kaur agreed to the Delhi Police’s request to keep Purkayastha and Chakravarty in police remand, that is, custody for the next seven days to interrogate them. The second time was on Wednesday, when Kaur allowed NewsClick access to the police’s remand application.

In both the hearings, however, Kaur refused to accede to NewsClick’s lawyer’s plea seeking a copy of the first information report filed against the media portal. This is a glaring omission on part of the judge that violates the fundamental right of the arrested guaranteed by Article 22(1) of the Constitution.

Even as the document remained out of bounds to NewsClick, a newspaper carried a report on Thursday on the purported contents of the FIR,

Being informed of grounds of arrest is a fundamental right

Article 22(1) of the Indian Constitution states: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.” This is a near-absolute fundamental right, with extremely limited regulation imposed by Article 22(3), which is not applicable in the present case.

It is unclear why a judicial officer would treat a matter of fundamental right in such a lax manner.

“There are enough and more judicial decisions which have held that the use of the words ‘as soon as may be’ requires that communication of such grounds to the person arrested should be done expeditiously and with a sense of urgency,” said Ritwika Sharma, Senior Resident Fellow and Lead, Charkha (Centre for Constitutional Law) at the Vidhi Centre for Legal Policy.

According to Indian law, Kaur could have provided the copy of the first information report available with her to the arrested men and their legal counsel. Instead, Kaur deferred the hearing of the plea for the first information report to Thursday. She did so on the grounds that the public prosecutor was not present in court during the hearings. However, the right to access the first information report is not conditional on the presence of the public prosecutor in court.

Archit Krishna, a Delhi-based lawyer, said that courts do not stop working just because a public prosecutor is not available. “There are link public prosecutors available in each court to fill in for such situations,” Krishna said. “The court could have easily arranged for one to be present.”

In the hearing on the plea on Thursday morning, the Delhi Police opposed the plea for supply of the first information report. Special Public Prosecutor Atul Shrivastava described the application as premature, and said that the accused must approach the Police Commissioner, rather than the court. He cited a 2016 Supreme Court order to make his case.

According to the judgment, in cases involving “sensitive offences” which would include, among other things, those pertaining to terrorism, the police can refuse to provide copies of such first information reports to the accused. Such a person may then raise their grievance with the Superintendent of Police, who may form a committee to decide on whether to provide the first information report. Regardless, according to the judgment, an accused person has the liberty to apply to the court to which the first information report for the report to be granted. After this, the court must provide the report to the accused person within three days of the application.

Krishna said that the prosecution was relying on a misconstrued interpretation of the decision. “The judgment pertains only to those who are apprehending being named in an FIR,” he said. “It doesn’t deal with the question of those in custody at all, and does not take away from the constitutional requirement of informing an arrestee of the grounds of arrest by providing a copy of FIR.”

Since being informed of the grounds of arrest is a fundamental right, a judicial officer is well within their right to grant them permission to receive a copy of the FIR.

Krishna pointed to a 2010 Bombay High Court judgment that made it clear that the copy of the first information report is to be provided before or at the time of arrest. “You won’t find any express Supreme Court decisions on this point because it is an evident and common practice,” he said.

He added that in other sensitive cases as well, such as those involving the National Investigation Agency dealing with the ISIS or the Popular Front of India – both organisations banned under the Unlawful Activities (Prevention) Act – copies of first information reports have been provided at the time of arrest of accused persons.

NewsClick’s lawyer has said that they will apply to the court for the first information report against the publication to be quashed. Without access to the first information report, they are being denied their prerogative to avail of this legal remedy available under Section 482 of the Criminal Procedure Code.

“The obligation on the authority to communicate the grounds of arrest is inexorably connected with the detenu’s right to have the earliest opportunity to legally defend themselves against the authority,” said Sharma. “If such communication does not happen at the earliest, a detenu may have to argue against their arrest without knowing what they have been arrested for.”

Absence of first information report feeding media trial

Without the first information report being furnished to NewsClick or being made available in the public domain by the Delhi Police, media coverage of the case has mainly revolved around unverified, leaked information from unidentified sources.

The Delhi Police has till now officially only revealed that its actions against NewsClick are “in connection with [an Unlawful Activities (Prevention) Act] case registered with [its] Special Cell”.

In December 2020, a bench of the Supreme Court, led by Chief Justice of India DY Chandrachud, had warned that selective disclosures made to the media during investigation of a crime adversely affect the rights of both the accused and the victims.

Just last month, another bench of the Supreme Court led by the Chief Justice had observed that biased reporting implicating an accused is unfair since it gives rise to public suspicion that the accused person committed an offence, besides violating their right to privacy.