Mere words cannot be criminalized in a democracy | PUDR (June 17, 2024)

Peoples Union for Democratic Rights (PUDR)

Mere words cannot be criminalized in a democracy

Jun 17, 2024

https://www.pudr.org/press-statements/mere-words-cannot-be-criminalized-in-a-democracy/

On June 14, 2024 Delhi’s Lieutenant-Governor (LG) sanctioned prosecution against Arundhati Roy and Sheikh Showkat Hussain under Section 13 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) for their speeches at an event titled ‘Azadi – The Only Way’ organised in Delhi on October 21, 2010 at LTG Auditorium by the Committee for Release of Political Prisoners (CRPP). The LG provided sanction to prosecute under Sections 153A, 153B, 504, 505 of the Indian Penal Code (IPC) in October 2023, which are offences against creating enmity between different groups of people and for being against national integration. Eight months later, the LG has granted sanction to prosecute both persons under Section 13 UAPA, which relates to support for ‘unlawful activities’.

According to news reports, Arundhati Roy allegedly said that Kashmir was never a part of India, and has been forcibly occupied by the armed forces of India. News reports do not list the allegations against Prof. Showkat Hussain that could be charged under the UAPA or the IPC provisions.

It bears repeating that the freedom of speech and expression is not only a fundamental right, but essential to the functioning of democracy that enables people to represent themselves, even if the content of the speech may be inconvenient or objectionable to certain segments of society. It is through this expression and debate that a democracy is able to function, even as different segments of society may hold differing, often uncomfortable views, from another. So, the State too is required to hear views that may be critical of its actions and policies. The State is barred from curtailing this right unless the views incite people to violence. No part of the speech incites violence to justify any kind of criminalization, as per the Supreme Court ruling in Shreya Singhal v. Union of India.

PUDR has consistently maintained the unconstitutional and undemocratic character of laws that criminalize non-violent political speech, be they under the IPC (such as sedition, conspiracy, etc.) or under special laws such as the UAPA. Such laws grant wide arbitrary discretion in the police and governments to remove certain ideas from public discussion. This harms not only the rights of vulnerable communities, but the political interests of the larger polity committed to values of democracy and social justice. It is based on the same arbitrariness and executive overreach that the Supreme Court has placed an embargo on the use of Section 124A IPC relating to the offence of sedition. Yet, in this case, mere words, that are otherwise unfit to be considered as sedition, are being brought under the ambit of offences against national integration, and even unlawful activity under the stringent UAPA.

The grant of sanction for prosecution by the LG after a prolonged span of fourteen years demonstrates not only the intent of the State to harass citizens, but a failure of checks and balances encoded within the Code of Criminal Procedure (CrPC) and UAPA. Section 45(2) UAPA provides for a detailed mechanism for grant of prior sanction for prosecution, to ensure an additional layer of oversight on police discretion, such that these special powers are not exercised arbitrarily. A similar review mechanism also exists under Section 196 of the CrPC requiring prior sanction for prosecution for offences registered under Section 153A and 153B.

Not only did the LG in this case fail to check against the application of anti-terror law and other IPC provisions to non-violent political speech, but also against their unjustified invocation for an incident of fourteen years ago. The fact that the sanction orders themselves, and the materials on which the sanction is granted, remain opaque from public view further shows the secretive manner in which these laws function and refuse to subject themselves to accountability. This lack of publicly-available information raises doubts on whether Section 13 UAPA was possibly added at a belated stage to bypass the limitation in law that prevents prosecution of certain IPC offences beyond a period of delay.

PUDR demands:

1. Withdrawal of prosecution against Prof. Showkat Hussain, Arundhati Roy and all others named/ unnamed, under both IPC and UAPA provisions;

2. Repeal of the Unlawful Activities (Prevention) Act, 1967.

Paramjeet Singh
Joseph Mathai
(Secretaries)