Recently, the Lieutenant Governor of Delhi (‘LG’) granted sanction for the prosecution of acclaimed novelist Arundhati Roy and a former Professor at the Central University of Kashmir, Showkat Hussain.
Roy and Hussain are facing charges for delivering ‘provocative’ speeches at a conference in Delhi 13 years ago.
The LG has granted sanction for the prosecution of the accused under sections 153A, 153B and 505 of the Indian Penal Code (‘IPC’) indicating that a prima facie case is made out.
Even though the accused have also been charged with the offence of Sedition under section 124A of the IPC, sanction has not been granted in light of the Supreme Court’s (SC) decision last year staying all sedition prosecutions.
The Allegations and the Charges
In October 2010, a conference was organised by the Committee for Release of Political Prisoners, where the accused made the speeches in question. In a complaint, filed by a social activist, it was alleged that these speeches were seditious and provocative in nature.
The police initially refused to register a case, underlining that no offence was made out for lack of criminal intent. However, in pursuance of an order passed by the Magistrate, a First Information Report (‘FIR’) was registered a month after the speech.
The charges under sections 153A, 153B, and 505 IPC imply that the speeches made by the accused promoted enmity between different groups and incited public mischief.
While section 153A deals with speech that promotes enmity between different groups on grounds of religion, race, place of birth, residence etc, section 153B criminalises any speech that is prejudicial to national integration by promoting disharmony between members of any religious, regional, racial etc. group or for advocating denial of rights to certain groups of citizen.
Section 505, on the other hand, relates to speech made with the intent to incite any class or community to commit an offence against any other class or community.
Was the Speech Really Provocative?
The speeches made at the conference were certainly charged and political in nature. They were also made in the backdrop of serious public order disturbances in Jammu & Kashmir in the summer of 2010.
But to qualify as offences under sections 153A, 153B and 505 of the IPC, the speakers must have had an intention to create public disorder and the speech in itself had to have the tendency to incite violence. The intention must be an active one to incite violence and a mere expression of opinions cannot attract the offences.
In fact, the SC in Balwant Singh and Ors. v. State of Punjab (1995) underlined that “the intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed.”
The SC, in the case of Amish Devgan v. Union of India (2020) examined the words 'promotes' ,' likely', and ‘create’ in sections 153A and 505. It observed that these words do not imply merely describing or narrating a fact, or giving an opinion criticising the point of view or actions of another person. The court stressed that the requirement of the speaker ‘actively inciting’ the audience must be met.
To ensure that the right to free speech is not unreasonably curtailed, the courts have also underlined the need to carefully invoke these provisions. The question of ‘tendency to incite violence’ has, therefore, become central to any prosecution of an offence under section 153A.
By reiterating the need to establish a direct effect on the security of the state and public order, the SC in Kedar Nath Singh v. State of Bihar (1962) has attempted to define in the clearest terms the scope of section 505.
Tampered CDs, Missing Files and an Absconding Investigating Officer
Despite the strict rigours and the complexity of determining whether the offences have been committed, there are also grave concerns about how the investigation has been carried out in this case.
The investigation, which commenced in 2010, has seen virtually no progress, with allegations of tampering in the CDs containing the speech, missing files, and non-appearance of the investigation officer leading to warrants against him.
The very fact that this case, dormant for over a decade, has suddenly resurfaced, raises questions about the motivations behind the prosecution, particularly when these provisions are often misused to intimidate people and stifle dissent.
The Oft-misused and Misapplied Provisions
In recent years, there has been a surge in cases of people being charged for promoting enmity while expressing their opinions or even making jokes.
In a recent incident, a complaint under section 153A was filed against comedian Yash Rathi for making remarks against a Hindu god at a comedy show. Last year, Marathi actor Ketaki Chitale was arrested for a Facebook post allegedly defaming NCP leader Sharad Pawar.
Other such cases include the arrests of a Delhi University professor for sharing a social media post regarding the Gyanvapi Mosque, and Nupur Sharma, a BJP spokesperson for making offensive remarks about Prophet Muhammad.
Data from the National Crime Records Bureau also reveals the increase in registration of these cases in recent years. The number of persons arrested under section 153A and 153B have increased by 161%, from 648 in 2014 to 1695 in 2021 and the number of cases registered have increased by 228% from 336 in 2014 to 1104 in 2021.
The conviction rate has, however, been consistently low - 18 percent on average from 2015-2021.
At the heart of these provisions is the need to ensure public order and prevent malicious and targeted attempts at disturbing the communal fabric of the country.
But as past instances have shown, these provisions are often invoked to curtail genuine expression of opinion. In the enforcement of provisions such as these, the real test lies in ensuring that they don't encroach on the much-cherished freedom of speech and expression.
In Roy's own words, her speech was a "call for justice". Her prosecution must be careful to not trample the cause of justice.
(Naveed Mehmood Ahmad and Ayushi Sharma are, respectively, Senior Resident Fellow and Research Fellow in Criminal Justice at Vidhi Centre for Legal Policy. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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