Legally Speaking | The curious case of the sanction against Arundhati Roy

Roy was one of the speakers. In her speech, Roy mentioned that Kashmir has never been an integral part of India. Terming the Indian government as a colonial state, she called for alliances across regions to fight for justice. The speech caused a lot of uproar even within the auditorium and soon there were calls for legal action to be taken against her.

On October 28, 2010, Sushil Pandit filed a complaint with the Delhi police alleging the speech to be seditious. Interestingly, the Delhi police at that time ‘acting in accordance with the letter and spirit of the law’ decided not to take any action since no violence had taken place after the speech.

P. Chidambaram, the then home minister said: "The state must show tolerance and forbearance.” Aggrieved, Pandit approached the Magistrate’s Court and on November 27, the same year, the court rejected the state’s contention that no offence had taken place and ordered the police to record a complaint against S.A.R Geelani, Roy and five others. The police were ordered to investigate and submit a report by January 6, 2011. At this point the complainant primarily wanted Roy and others to be prosecuted for sedition.

Like several investigations, this case also seems to have gone into cold storage only to be miraculously revived in October 2023, wherein the Lieut. Governor granted sanction under s. 196 CrPC to prosecute Roy and others under s. 153A (promoting enmity between different groups and doing acts prejudicial to maintenance of communal harmony), 153B (Imputations and assertions prejudicial to national integration) and 505 (statements conducting public mischief) IPC. The LG could not sanction prosecution for sedition as the Supreme Court in 2022 had stayed the application of the provision pending the adjudication of the challenge.

Interestingly, the three sections for which the sanction was accorded in 2013 prescribe a maximum penalty of three years. As per Section 468 of the Criminal Procedure Code for such offences prescribing a maximum penalty of three years the courts are barred from taking cognizance after the expiration of three years from the commission of the offence, which in this case expired on October 21, 2013.

The question now arises of how the LG could sanction a time-barred prosecution. It is also important to note that at this point there appears to be no application of UAPA provisions. Suddenly, after a lapse of about seven months, the LG granted sanction to initiate prosecution under Section 13 of the UAPA.

There are no documents in the public domain at present regarding the sanction except for the Raj Niwas statement. However, the 14 years-delay along with the complete U-turn of the police from stating no case was made out to foisting terror charges makes the entire process questionable.

Legally, the entire process also raises several questions. The law prescribes the need for a prior sanction for prosecution for certain offences as a safeguard against undue harassment. The sanctioning authority is expected to be independent, fair and objective and not a mere rubber stamp. It is only after a thorough analysis of the material collated by the investigating agency and proper application of mind that the sanction is either to be granted or denied.

While introducing s. 45 (2) in 2008, of the UAPA in Parliament, the then-home minister Chidambaram had claimed that the provision of prior sanction after the review of evidence is a check against executive abuse. However, in practice, since the sanctioning authority is appointed by the Union government itself, independence is often compromised.

Courts in several cases have held sanctions to be erroneous due to the lack of application of mind on the part of the sanctioning authority.

In 2012, the Supreme Court while invalidating the sanction under the Prevention of Terrorism Act, 2002 in Ashrafkhan @ Babu Munnekhan Pathan v. State of Gujarat noted, “We emphasise and deem it necessary to repeat that the gravity of the evil to the community from terrorism can never furnish an adequate reason for invading the personal liberty, except in accordance with the procedure established by the Constitution and the laws.”

Recently, the Bombay high court ruled that no proper sanction for prosecution had been accorded against G.N. Saibaba and held the entire trial to be null and void. Thus, the 10-year incarceration which worsened the several health conditions of the professor was unjust from the initial point.

Courts have time and again held that stringent laws like UAPA, MCOCA, or NDPS should be applied sparingly and only when all the prerequisites for the application of the law have been met. The procedural safeguards mandated under the act are not mere technicalities but necessary. These laws curtail the personal liberties of the accused.

For instance, under the IPC the police need to file chargesheets within 60 days of arrest for offences punishable with imprisonment of less than 10 years and within 90 days of arrest for offences punishable with death, life imprisonment or more than 10 years. Failure to do the same entitles the accused to statutory bail.

However, under UAPA, the police have up to 180 days to submit the chargesheet. Similarly, the bail provisions under UAPA, NDPS and MCOCA are very stringent.

Senior Advocate Rebecca John while arguing the bail of Khalid Saifi charged under UAPA for the 2020 Delhi riots, pointed to the court that in all other cases where there are only IPC provisions on the same evidence the accused was either on bail or even discharged but it is only because of the UAPA provision that he continues to languish in jail for more than 4 years.

In the present case, in the absence of any chargesheet in the public domain or any perceptible investigation in the case, the sudden sanction for prosecution after 14 years raises doubts on the validity. Further, the previous grant of sanction for the IPC provisions despite the same being barred by limitation on the face indicates non-application of mind.

Under the UAPA rules, a specific time of seven days is provided within which the Authority has to make a recommendation after which the appropriate government also has to issue a sanction within another seven days from receipt of the recommendation.

In this case, 14 years after the offence cannot be termed as a reasonable delay. Further, apart from the procedural irregularities how is the offence to be proven? Many witnesses would have forgotten the details or died; apart from Roy and Hussain all the other accused have died.

It is also pertinent to note that the government in power at the time of the speech did not even find it worthy of an FIR initially, but the present government finds the speech not only criminal but a terrorist act. Criminal procedure should not be dependent on the vagaries of politics but premised on hard facts and evidence.

Roy in her “provocative speech” concluded 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.”

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.