“One point I want to make is that everyone possesses the fundamental right to remain silent, a right not often utilized by those taken into custody,” he remarked.
New Delhi: On Thursday, May 30th: Individuals have the right to remain silent under the Constitution, which can be exercised upon arrest, emphasized former Supreme Court Justice Madan Lokur.
Speaking at a discussion titled ‘Freedom of Expression in Today’s India’ at the Press Club of India, alongside NewsClick’s founding editor Prabir Purkayastha, Justice Lokur highlighted that all fundamental rights are interconnected and various methods are currently being employed to suppress freedom of speech.
Justice Lokur explained that the Constitution ensures the right to silence, allowing an individual to decline answering police questions during arrest or detention.
“One point I want to make is that everyone possesses the fundamental right to remain silent, a right not often utilized by those taken into custody,” he remarked.
He pointed out the typical scenario where police might report to the court that an uncooperative suspect is grounds for denying bail. However, Lokur stressed,
“This is a direct infringement of Article 20 of the Constitution, which protects your right to silence.”
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He advised that anyone arrested should be aware of their right to remain silent, as anything they say could potentially be used against them in further investigations or legal proceedings.
Article 20(3) of the Constitution provides individuals with the right against self-incrimination, stating that the accused is presumed innocent until proven guilty beyond a reasonable doubt and cannot be compelled to testify against themselves.
Justice Lokur also noted that freedom of expression faces various threats, such as the arrest of dissenters, action against their associates, withholding advertisements from media, removal of social media posts, and the application of defamation laws.
Purkayastha has faced legal challenges, including arrest under serious charges such as those related to anti-terror laws. For instance, his arrest in 2020 under the Unlawful Activities (Prevention) Act (UAPA) was for allegedly receiving funds to spread pro-China propaganda through NewsClick.
Purkayastha, who was recently released from Tihar Jail following the Supreme Court’s declaration of his arrest as ‘invalid’, drew parallels between his experiences now and during the 1975–77 Emergency. He reflected on how the Indian public has historically managed to ‘discipline’ their leaders through democratic means.
The bench said
“Both provisions find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India. Hence, applying the golden rules of interpretation, the provisions that lay down a very important constitutional safeguard for a person arrested on charges of committing an offence either under the PMLA or under the UAPA have to be uniformly construed and applied”.
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Article 22(1) of the Constitution says, “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.”.
The bench said,
“We have no hesitation in holding that the interpretation of statutory mandate laid down by this Court in the case of Pankaj Bansal… on the aspect of informing the arrested person the grounds of arrest in writing has to be applied pari passu (ranking equally and without preference) to a person arrested in a case registered under the provisions of the UAPA… Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter, any other offense(s) has a fundamental and statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest”.
It said
“the purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as this information would be the only effective means for the arrested person to consult his advocate, oppose the police custody remand and seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India”.
It said
“the Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution” and “any attempt to violate such fundamental right… would have to be dealt with strictly”.
Mrs. Gandhi declared elections after 19 months of emergency. She never imposed an emergency again,” Purkayastha shared, emphasizing the resilience of democratic processes and the emerging resistance movements.
He also expressed his support for those still imprisoned and emphasized the collective duty to uphold democracy, the democratic spirit, and justice. Purkayastha was arrested under the Unlawful Activities (Prevention) Act (UAPA) for allegedly accepting funds to disseminate ‘pro-China propaganda’ through his portal.
