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Core Values of Democracy Under Threat: Analysis of the Sanction of Prosecution Against Author Arundhati Roy Under UAPA in 2010 Case

By Srishti Sarraf

Dissent is a safety valve of democracy. If you don’t allow dissent, the pressure valve of democracy will burst“- Hon’ble Chief Justice D. Y. Chandrachud

Arundhati Roy, a renowned author, awardee of the Man Booker Prize for Fiction (1998) for her outstanding debut novel The God of Small Things and the one who was awarded the Lannan Cultural Freedom Award in 2002, the Sydney Peace Prize in 2004, and the Sahitya Akademi Award from the Indian Academy of Letters in 2006 in recognition of her outspoken advocacy of human rights is in news these days as she is to face the prosecution under Section 13 of Unlawful Activities (Prevention) Act, 1967 (UAPA) for allegedly delivering ‘provocative speeches in public’ in connection with a 2010 case. Here is a brief account of the controversy and its overall effect on the democratic values of the nation.

FACTUAL MATRIX

On October 21, 2010, a conference was called by the Committee for Release of Political Prisoners under the banner of ‘Azadi – The Only Way’ at LTG Auditorium, Copernicus Marg, New Delhi. Among others, Ms Roy has also joined this conference and made a speech pouring her heart out over a plethora of topics including Kashmir, freedom, democracy, economy, alliance, and justice as reflected through the transcript of the speech. Moreover, she concluded her speech by saying, “Think about justice and don’t pick and choose your injustices, don’t say that “I want justice but it’s ok if the next guy doesn’t have it, or the next woman doesn’t have it”. Because justice is the keystone to integrity and integrity is the keystone to real resistance.” However, placing some of her statements completely out of the context she was alleged for making provocative remarks alongside others including Sheikh Showkat Hussain, late Hurriyat leader Syed Ali Shah Geelani, SAR Geelani and Varavara Rao.

In this regard, post “necessary investigations” the Delhi Police had earlier, “acting in accordance with the letter and spirit of the law,” decided not to file any case against the individuals concerned. However, an activist named Sushil Pandit moved a complaint at the Tilak Marg police station on October 28, 2010, against Ms Roy. His primary contention was that Roy and Hussain strongly propagated that Kashmir was never part of India, thereby making anti-India speeches. The complainant, later approached the Metropolitan Magistrate Court in New Delhi seeking a direction to the police to initiate a probe, and the court ordered the registration of an FIR. Consequently, the celebrated author was booked under sections 124A/153A/153B and 505 of the Indian Penal Code, 1860 (IPC).

Last year, in October 2023, Delhi lieutenant governor V.K. Saxena accorded sanction for the prosecution noting that a prima facie case was made out against Roy and Hussain for the commission of offences under Sections 153A, 153B and 505 of the IPC and now, few days back, after the lapse of almost 14 years to the incident, “Delhi Lt Governor VK Saxena has sanctioned the prosecution of Arundhati Roy and former Professor of International Law in Central University of Kashmir, Dr. Sheikh Showkat Hussain, under section 45 (1) of Unlawful Activities (Prevention) Act in the case,” as Raj Niwas official said, and as quoted by the Hindustan Times. Notably, both Sections 153A and 153B of the IPC as well as the invoked sections of the UAPA require prior sanction from the government.

SUSTAINABILITY OF THE CHARGES

As held in the series of judgments by the Indian judiciary time and again, including the celebrated case of Kedar Nath Singh vs. State of Bihar (1962),for making out an offence under Section 124A, 153A, 153B and 505(2) IPC, it is necessary to demonstrate that the words written or spoken or signs or visible representation have the tendency or intention of creating public disorder or disturbance of public peace by incitement to offence. Further, as held in the case of P. Alavi vs. the State of Kerala (1982) sloganeering, criticizing Parliament or Judicial setup does not amount to sedition. It is not out of place to quote Rajat Sharma vs. The Union of India Case (2021), wherein the Hon’ble Court affirmed thatthe expression of a view which is a dissent from a decision taken by the Central Government itself cannot be said to be seditious.” These pronouncements make it abundantly clear that the invoked provisions of the penal code cannot be misused to quiet the disquiet or stifle dissent which is the case here. The speech made in the present case when read into totality with a reasonable mind favour the view that Ms. Roy was merely exercising her constitutionally protected right to express dissent which is very much part of the right to freedom of speech and expression rather than inciting any offence as factually the incident was not followed by any chaos, uproar or riots nor any violence was instigated in general as a result of the alleged provocative speech.

Be that as it may, even otherwise as well the charges are no longer sustained given the bar prescribed by section 468 Cr. PC, no cognizance could be taken in respect of the offences under sections 153A/153B/505 IPC, 1860 because the maximum punishment prescribed under these invoked sections is that of three years alongside the period of limitation that is again that of three years. Thus, given that the period of limitation has been lapsed a long time back revival of the case and continuance of the investigation would amount to the abuse of process of the court. There cannot be any possible debate about the computation of the limited period law as the law is further crystal clear that to compute the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not any other date including the date on which the Magistrate takes cognizance as held in Sarah Mathew vs. Institute of Cardio Vascular Diseases (2014).

Further, it is worth noting that the Hon’ble Supreme Court its order dated May 11, 2022, in the case of G Vombatkere vs. Union of India (2022), has directed that the “State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration” alongside unequivocally observing that “All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance.” Thus, the charge of sedition is out of the picture for the time being.

Thus, from a legal viewpoint whole of the case so registered against Ms. Roy is effectively non-est at present. However, this is to be noted that criminalization of speech and expression is common to both sedition and UAPA. “Unlawful activity” as defined under Section 2(1)(o)(iii) of the UAPA is very similar to the definition of sedition contained in Section 124-A IPC. Further, over the years, “slowly and surreptitiously”, the substance of the offence of sedition has been “snuck” into the UAPA, defined more elaborately, and with more draconian consequences, than in section 124A as observed by the Constitutional Conduct Group of former bureaucrats lately.

It is nobody’s case that the UAPA provisions were invoked ab initio in the FIR against Ms Roy. This brings one to the question as to why the most stringent provisions of the UAPA are invoked now. Is this just an unjust attempt to keep the case against Ms Roy alive? The instances of misuse of the charges of sedition as well as UAPA are not of a recent origin, according to the NCRB report as also endorsed by the Ministry of Home Affairs, the number of sedition cases increased by 160% between 2016 and 2019, while the rate of conviction fell to 3.3% in 2019 from 33.3% in 2016. Twenty-one cases were closed due to ‘insufficient evidence’ or ‘no clue’, two were classified as ‘false’, and six cases were determined to be civil disputes based on the final police reports. Further, in 2019, the conviction rate for sedition cases was 3.3%, while it was 29.2% for UAPA cases in contrast to the 2019 national average conviction rate of 50.4%, which is abysmally low even by the standards of India’s low conviction rates for crimes.

THE QUESTION OF DUE PROCEDURE

Even the draconian law of UAPA has some safety nets when it comes to granting the sanction. For instance, Rule 3 of the UAPA Rules 2008 contemplates that the authority under Section 45(2) of the UAPA is obliged in law to apply its mind thoroughly to the evidence gathered by the Investigating Officer and thereafter, prepare its report containing the recommendations to the Central government or the State government for the grant of sanction. As held in the case of Judgebir Singh vs. National Investigation Agency (2023), the grant of sanction is not an idle formality but should reflect proper application of mind. Similarly, as per the observation of the Hon’ble Supreme Court in CBI vs. Ashok Kumar Aggarwal (2013), the sanction order needs to be extremely comprehensive spelling out all the facts and circumstances of the case alongside the evidence gathered that leads to the sanction of the prosecution. As there has been no speaking order issued by the Lieutenant Governor’s office on the sanction in the present case, it is doubtful whether these safeguards laid down by the Supreme Court have been complied with or not.

CONCLUSION

Given the legal nuances, as explained above, this whole episode brings up some of the core questions- what prompted the LG to sanction the prosecution after the lapse of almost 14 years particularly at the time when Courts as well as most of the prominent lawyers are on vacations? What is going to be the fate of the case given that the charges under IPC are prima facie non est at the moment? Why were the most stringent provisions of the UAPA invoked then? Were the due procedures as mandated under the UAPA adhered to while sanctioning the prosecution order? Even when the prosecution order was sanctioned now, why no speaking order was issued? Is this move of the LG a message or caution to the activists like Ms. Roy who never hesitate to speak out loud their mind and exercise their right to free speech? The answer to these posed questions will indeed be revealed with time but what cannot be denied is that the core virtues of democracy are under threat at the moment. Rabindranath Tagore while envisioning free India has written long back that “Where the mind is without fear and the head is held high, into that heaven of freedom, my Father, let my country awake” but the instances as present underscores that the dream of a nation where intellectual freedom, unity, and the pursuit of knowledge are valued appears distant from reality which is but a failure on the part of our governing bodies that seems clearly afraid of listening to any dissenting opinions.

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