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NewsClick Case: Do Allegations Justify Invoking of UAPA? Legal Experts Weigh In.

NewsClick founder Prabir Purkayastha and its HR head Amit Chakraborty were held on October 3. The Delhi police claim the news portal received a “large amount” of Chinese funding was used to publish “paid news” which criticised the policies of the Indian government.

New Delhi: As NewsClick founder Prabir Purkayastha and its HR head Amit Chakraborty face charges under the Unlawful Activities (Prevention) Act (UAPA) in a case registered by the Delhi Police’s Special Cell, legal experts say that the use of the anti-terror law is grossly disproportionate, and there is no evidence to make out a terror case.

Purkayastha and Chakraborty were held on October 3 after daylong questioning by the Delhi police. On the same day, nearly 46 journalists, commentators and other staff with links to NewsClick were raided, questioned and had their devices seized.

The police action on NewsClick is being described as one of the worst attacks on media in India’s history.

Speaking to The Wire, senior advocate in the Supreme Court Sanjay Hegde said that the UAPA charge against Purkayastha is not justified.

“The UAPA (charge) is certainly not justified. It is grossly disproportionate and it is intended to terrorise normal journalism. Money has not only been received (by NewsClick) through normal public channels but as a business transaction. There is no proven quid pro quo for running any kind of story. Even if there was a quid pro quo for running any kind of story, that too is not covered by criminal law.”

“For instance, people accept advertorials too and that is not normally covered by criminal law,” he said.

The Wire has reported that the police in its FIR filed on August 17, 2023 invoked multiple sections of the UAPA and said that a “large amount” of Chinese funding was used to publish “paid news” which criticised the policies of the Indian government and promoted the policies of the Chinese, though the FIR does not provide any details of these alleged paid news items.

It also alleges the existence of a “larger criminal conspiracy” involving the “illegal infusion of funds” by Chinese companies Xiaomi and Vivo, and the “spirited defence of legal cases” against these telecom firms by “Gautam Bhatia” who is described as a “key person”.

“Most importantly China is not an enemy state, we are not at war with China-there has been no such declaration. There is no criminal case for Purkayastha to answer, much less a UAPA case,” said Hegde.

Former Supreme Court judge Madan B. Lokur said that while journalists are not outside the purview of UAPA, in this case, there appears to be no evidence to invoke the law.

“From whatever material is available in the public domain, it appears that there is no evidence to make out a case under UAPA. This is not to say that a journalist is outside the purview of the UAPA, but in this case, there appears to be no evidence,” he said to The Wire.

Purkayastha is not the first journalist to face UAPA charges. 

According to a report by the Free Speech Collective, 16 journalists have been jailed and charged under the stringent anti-terror act since 2010, of whom seven are currently behind bars.

Former Supreme Court judge Deepak Gupta said that while no one is above the law, a fair trial should be conducted.

“Law cannot be misused to persecute or get even with the people who are critical of the government but at the same time, nobody is above the law. Everybody is subject to the law and Mr Pukayastha has to face the law but he should get a fair trial,” he said.

On October 6, the Delhi high court – while denying interim relief to Purkayastha and Chakraborty – said that the allegations are such that they don’t warrant the grant immediate relief. The court, however, noted that the remand application did not disclose the reasons for arrest.

The former judges have also criticised the initial denial of a copy of the FIR to Purkayastha and the failure to disclose the grounds for arrest.

The duo was given a copy of the FIR only after a Delhi court granted their plea, which was opposed by the Delhi Police. NewsClick described the charges in the FIR as “ex facie untenable and bogus”.

“Pursuant to directions of the Hon’ble Special Judge, Patiala House, New Delhi, Prabir Purkayastha was supplied with a copy of the FIR registered by the Delhi Police Special Cell only yesterday (Thursday) night. We immediately moved the Hon’ble High Court of Delhi seeking quashing of the FIR as well as release of Prabir Purkayastha and Amit Chakraborty from their illegal police custody.”

Lokur said that the denial of the copy of the FIR was “absolutely wrong.”

“A person who is arrested is entitled to have a copy of the FIR lodged against him and the grounds of arrest.”

In the Delhi high court, Purkayastha’s counsel Kapil Sibal said on October 6 that the accused received the FIR on October 5, and that the remand order did not include the grounds of arrest.

The court also referred to the Supreme Court’s order delivered on October 3 in a separate money laundering case in which it said that the ED should be transparent and above board in functioning, and held that the agency should furnish the grounds for arrest to the accused in writing.

Sibal reiterated in his arguments on Monday that the grounds had not been given, as the Solicitor General Tushar Mehta informed the court that the centre is planning to file a review against the Supreme Court’s October 3 order.

“..They say the grounds are in the arrest memo. I have shown you the arrest memo, the grounds are not there. The fact that a review is being filed doesn’t change the law,” Sibal was quoted as saying by Bar and Bench.

The high court reserved its order on Monday on the plea by Purkayastha and Chakraborty challenging their arrest, remand and the FIR against them.