On June 14, the Delhi Lieutenant Governor V.K. Saxena granted sanction to prosecute author Arundhati Roy and Kashmir-based academic Sheikh Showkat Hussain under the Unlawful Activities (Prevention) Act (UAPA) for remarks made at a seminar in New Delhi in 2010. There are, however, reasons to believe that the sanction order may suffer from a non-application of mind, and therefore, be vulnerable to legal challenge by the accused.
The FIR was registered on November 27, 2010 at Tilak Marg Police Station as per the orders of the Court of Metropolitan Magistrate, New Delhi, following a complaint by Sushil Pandit, a social activist from Kashmir. The complaint had alleged that Roy and Hussain, among others, delivered provocative speeches at a conference organised by the Committee for the Release of Political Prisoners under the banner of ‘Azadi—the Only Way’ on October 21, 2010.
The Delhi Police sought prosecution sanction under Sections 153A, 153B, 504, 505 of the Indian Penal Code (IPC), and Section 13 of the UAPA against both the accused. The Lieutenant Governor had, last year, given sanction under three of the IPC provisions: Sections 153A, 153B and 505.
However, as the maximum sentence of imprisonment that can be imposed by the courts under these provisions is only three years, the limitation period that restricts the courts from taking cognisance of the offences, after they are allegedly committed, kicked in after October 21, 2013.
Under Section 468 of the Code of Criminal Procedure, no court shall take cognisance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. Sub-section (2) [c] of Section 468 says that the period of limitation shall be three years, if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years.
While Section 153A deals with promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc. and committing acts prejudicial to the maintenance of harmony, Section 153B seeks to punish imputations, assertions prejudicial to national integration. Section 505 deals with intentional insult with intent to provoke the breach of peace.
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The Lieutenant Governor saw no point in granting sanction under Section 124A IPC, which penalises sedition— also invoked in the FIR against Roy and the other accused in the case—because the Supreme Court had in May 2022 stayed its operation, in view of the pending challenges against it. The maximum sentence of imprisonment under Section 124A was life imprisonment, and it could have helped to overcome the limitation restriction, had the Supreme Court not stayed it.
The allegation is that the accused had strongly propagated that Kashmir was never part of India and was forcibly occupied by the Armed Forces and every possible effort should be made for the independence of Jammu and Kashmir from India.
These allegations are yet to be investigated, and brought to logical culmination by the Delhi Police, by gathering sufficient evidence against the accused. Two of the accused, namely, Syed Ali Shah Geelani and Syed Abdul Rahman Geelani, have already died. It is not clear what evidence the Delhi Police has gathered against the remaining two accused, which enabled the Lieutenant Governor to grant sanction for prosecution under the UAPA.
A close look at Section 45 of the UAPA indicates that sub-section (1) deals with the authority who can accord sanction for the offence committed under the UAPA whereas sub-section (2) deals with the procedure to be followed by the authority at the time of granting sanction. If the offence falls under Chapter III of the UAPA, the Court shall not take cognisance of the offence unless previous sanction is accorded either by the Central Government or by another officer authorised by the Central Government. If the alleged offence falls under Chapters IV and VI, the court shall not take cognisance of the offence unless previous sanction is granted by the Central Government or the State government.
The FIR against Roy and Hussain alleges the commission of offence under Section 13 of UAPA, which deals with punishment for unlawful activities. The maximum sentence of imprisonment that can be imposed by a court under this provision is seven years. Section 13 finds its place under Chapter III of UAPA.
Section 45 of the UAPA must be read along with Rules 3 and 4 of the UAPA Rules, 2008. In a prosecution under the UAPA, it is the executive government that registers the case through a police officer, and investigates through the police department. The Central government, while enacting this provision, was conscious that it might be misused, and therefore, envisaged an independent authority to review the entire evidence gathered in the investigation, and then make a recommendation whether the case is fit for prosecution. This safeguard was considered important because the “independent authority” could act as a buffer, and a filter, against arbitrariness, which many had feared.
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More importantly, sanction is accorded based on material collected by the investigating agency, which forms part of the final report under Section 173 of the Code of Criminal Procedure. The investigating agency gets 180 days to complete the investigation.
The process of investigation and the process of obtaining sanction from the authorities are separate. The evidence that Rule 3 of the UAPA Rules 2008 contemplates is the final report, that is, filed by the investigating agency under Section 173 of the Code of Criminal Procedure.
It is nobody’s case that the Delhi Police is close to preparing a chargesheet against the accused in this case. How can one expect the authority under Section 45(2) to make its report containing the recommendations without thoroughly looking into the chargesheet containing the evidence gathered by the Investigating Officer?
Not an idle formality
Rule 3 makes it explicitly clear 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.
The Supreme Court has held that the grant of sanction is not an idle formality, but should reflect proper application of mind. In CBI vs Ashok Kumar Aggarwal, (2013), the Supreme Court held on the validity of sanction order thus: “The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order….”
Arundhati Roy at a protest organised by students of Jamia Millia Islamia against CAA, NRC and NPR at the university in New Delhi on January 11, 2020. | Photo Credit: SHIV KUMAR PUSHPAKAR
The Supreme Court has held in this case that the provisions in regard to the sanction must be observed with complete strictness keeping in mind public interest and the protection available to the accused against whom the sanction is sought.
The Supreme Court was categorical in this case that the prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statement of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction, the court held.
The order of sanction, the Supreme Court held, should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
As the Lieutenant Governor has not placed any speaking order in the public domain with respect to his sanction, there is no indication whether he applied his mind, as required by the Supreme Court, before granting sanction in this case.
In another case decided by the Supreme Court last year (Judgebir Singh vs National Investigation Agency, decided on May 1, 2023), the Supreme Court bench comprising the Chief Justice of India, D.Y. Chandrachud and Justice J.B. Pardiwala, had made it mandatory for the sanctioning authority to thoroughly look into the evidence collected by the investigating agency in the form of a chargesheet, and thereafter, make recommendations for sanction.
In the absence of a speaking order from the Lieutenant Governor’s office on the sanction to prosecute the accused under the UAPA, it is doubtful whether these safeguards laid down by the Supreme Court have been complied with.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
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