Why the sanction to prosecute Arundhati Roy under UAPA is legally suspect

The grant of sanction by Delhi Lieutenant Governor VK Saxena on Friday to prosecute author Arundhati Roy and academic Sheikh Showkat Hussain under the Unlawful Activities (Prevention) Act is surprising for two reasons.

First, its timing: the alleged offence for which Roy and Hussain are to be prosecuted took place nearly 14 years ago, on October 21, 2010, with a first information report registered by the Delhi police a week later.

Second, the lack of transparency regarding the reasons for prosecution. A 2013 judgement of the Supreme Court held that under the Unlawful Activities (Prevention) Act, an order sanctioning prosecution should ideally reflect the reasoning employed for the grant of sanction.

Saxena has not put in public domain any such reasons.

According to another Supreme Court judgment, the sanction order must be based on the police chargesheet. However, it is not clear whether the Delhi police has even filed a chargesheet in the matter so far and if it has, what the police’s findings against Roy and Hussain were that merited the sanction order.

Scroll explains how sanction for prosecution under the stringent anti-terror law is supposed to work, and why the information needed to check whether the sanction is lawful is missing in this case.

Timeline

According to the police complaint against Roy and Hussain, they had allegedly delivered speeches advocating for the separation of Kashmir from India in October 2010 at a conference organised by the Committee for Release of Political Prisoners under the banner of “Azadi: The only way”.

The complaint also named Kashmiri separatist leader Sayed Ali Shah Geelani and Delhi University lecturer Syed Abdul Rahman Geelani. Syed Abdul Rahman Geelani died in 2019 while Sayed Ali Shah Geelani passed away in 2021.

The first information report had invoked Section 13 of the Unlawful Activities (Prevention) Act that punishes unlawful activities, defined in Section 2(o) of the act to consist of speech that intends to or supports claims of secession of any part of India, or questions or disrupts India’s sovereignty and territorial integrity, or causes disaffection against India.

The first information report also contained an assortment of provisions of the Indian Penal Code: Sections 124A (sedition), 153A (promoting enmity between different social groups and disturbing the maintenance of harmony), 153B (making imputations or assertions prejudicial to national integration), 504 (intentionally insulting to provoke breach of peace) and 505 (making statements conducing to public mischief).

Saxena had in October last year granted sanction for the prosecution of both Roy and Hussain under Sections 153A, 153B and 505 of the Indian Penal Code. At that time, there was no word on the sections of Unlawful Activities (Prevention) Act mentioned in the FIR.

Nearly nine months later, on June 14, an unsigned note surfaced on social media that ostensibly notified the sanction to prosecute the writer and academic under Unlawful Activities (Prevention) Act.

Scroll could not verify whether the note was issued by Saxena or someone else in the Union or Delhi governments.

The note also names writer and activist P Varavara Rao as a speaker at the 2010 event, describing him as a “Maoist sympathiser”. It is unclear if Rao was subsequently named as an accused in the first information report.

What the law says

Saxena’s grant of prosecution for the offence under the Unlawful Activities (Prevention) Act is under Section 45 of the act which mandates that courts can take cognisance of offences such as that under Section 13 of the act only with the sanction of the central government.

According to Section 45(2), this sanction must be granted only after the consideration of a report by a Centre-appointed authority containing an “independent review of the evidence gathered in the course of investigation”, along with a recommendation to sanction prosecution.

Section 45(2) was added into the act through an amendment act in 2008 by the then United Progressive Alliance-led central government. Explaining the rationale for the two-step sanction process involving an independent authority, the Union Home Minister P Chidambaram at that time had told the Parliament that it would act as a check against state excess and filter out cases wherein the evidence collected did not warrant prosecution. He said that the grant of prosecution was not a mere technical or mechanical formality.

In a 2013 judgment, the Supreme Court had further elaborated on this. A two-judge bench of the court had held that the sanction order must be based on all the facts and circumstances of the case. A lawful sanction order, the court observed, would indicate “that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and … the sanctioning authority perused all the material”.

Last year, another two-judge bench of the Supreme Court had held in a judgment that the recommendation to prosecute must be made after thoroughly going through “the evidence collected by the investigating agency in the form of chargesheet”.

Under the Unlawful Activities (Prevention) (Recommendation And Sanction of Prosecution) Rules, the independent authority must prepare its report within seven working days of receiving evidence gathered by the investigating officer. The government must decide on sanction to prosecute within seven working days of the receipt of the recommendations of the authority.

Missing information

There are several grey areas in this matter at this point.

It is not immediately clear who constituted the authority that recommended to Saxena the sanction to prosecute Roy and Hussain, what was the evidence that this authority reviewed, and when it shared its recommendations with Saxena.

Since there is no detailed sanction order in the public domain, it is unclear what Saxena’s rationale for granting the sanction to prosecute is, and if it is based on the police’s chargesheet. Whether the police have even filed a chargesheet in the matter is unknown at this point.

Going by the timelines in the Unlawful Activities (Prevention) Rules, the independent authority may have received material evidence of the investigation from the Delhi police towards the end of last month and it may have prepared its report sometime in the first week of this month.

Although it is presently a disputed point of law whether failure to follow the timelines under the rules vitiate the grant of sanction.

In the absence of the above information, the legality of the grant of sanction comes into question.

Why UAPA now?

There is legitimate speculation that the sanction to prosecute under the Unlawful Activities (Prevention) Act was granted to bypass the period of limitation applicable to the other offences under the Indian Penal Code invoked against Roy and Hussain.

Under Section 468 of the Criminal Procedure Code, courts are barred from taking cognisance of offences that are punishable with a maximum penalty of three years’ imprisonment, three years after the commission of the offence.

Since the maximum punishment for none of the offences under Sections 153A, 153B, 504 and 505 of the Indian Penal Code is imprisonment more than three years, the limitation period for courts to take cognisance of these offences alleged against Roy and Hussain expired in October 2013.

This rendered the sanction to prosecute granted by Saxena in October last year under Sections 153A, 153B and 505 null and void.

The offence under Section 124A is punishable with life imprisonment and would not have been barred by limitation. However, in May 2022, the Supreme Court stayed the operation of this provision pending its adjudication of the legality of the section.

There is no limitation period applicable to Section 13 of the Unlawful Activities (Prevention) Act, which carries a maximum term of imprisonment of seven years.

Under the act, the state also enjoys more powers than it does under ordinary criminal law – including more time for the police to file a chargesheet and stringent conditions for being granted bail by courts.

Nevertheless, it is unclear and puzzling why the government chose to grant sanction at this particular time, almost 14 years after the commission of the alleged offence.