The International Bar Association's Human Rights Institute (IBAHRI) strongly condemns the recent decision by India's Lieutenant Governor of Delhi, Shri Vinai Kumar Saxena, to advance a case under the Indian Unlawful Activities (Prevention) Act (UAPA) against the renowned author Arundhati Roy for allegedly making provocative comments regarding Kashmir at a conference in 2010.
The IBAHRI is concerned over the prosecution of individuals, including academics, lawyers, journalists, and activists, in India under broad, vague and stringent anti-terrorism charges levied under the UAPA. This is seemingly reflective of a broader campaign to legalise the harassment of human rights defenders and curtail the right to freedom of opinion and expression.
IBAHRI Co-Chair and the Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, stated: 'We urge the relevant authorities in India to drop all charges against Arundhati Roy. The criminal prosecution of Ms Roy in relation to her right to express political criticism and to comment on universal justice voiced more than 14 years ago is absurd, concerning and deeply puzzling particularly with such a draconian law being invoked. This action taken by Delhi's most senior official raises serious issues about the pervasive use of national security and anti-terrorism legislation to target individuals. In a country often described as the "world's largest democracy" these violations of international human rights and domestic legal frameworks run counter to the description of India being a constitutional democracy. Criticism of any government anywhere by anyone is not a crime and should not be treated as such. The IBAHRI has previously voiced concern over the human rights situation in Kashmir and reiterates its call to the Indian authorities to respect the human rights of people in Kashmir and ensure all alleged human rights abuses are promptly and thoroughly investigated.'
On 21 October 2010, Ms Roy - winner of the 1997 Booker prize and 2024 PEN Pinter prize - spoke at a conference about Kashmir titled 'Azadi - the Only Way', where she addressed the increasingly alarming human rights situation in the disputed territory amid heightened tensions following mass protests that took place in response to the Indian army killing three Kashmiri civilians, who the army originally claimed were terrorists. She is reported to have said that the disputed region of Kashmir 'had never been an integral part of India'.
In a matter of days, a First Information Report (FIR) was lodged against Ms Roy and three co-defendants (two of whom are now deceased). The FIR alleged that speeches by Ms Roy were provocative in nature and jeopardised public security by advocating for Kashmiri independence. Amounting to accusations of sedition under Section 124A of the IPC, the accusations lead to an initial investigation. No further action was taken.
More than a decade later, in October 2023, India's authorities sought Ms Roy's prosecution under multiple sections of the Indian Penal Code in relation to the original FIR - specifically under section 153A ('facilitating enmity between groups'), section 153B ('generating assertions prejudicial to national integration'), section 504 ('intentional insult with intent to provoke breach of peace') and section 505 ('generating statements conducive to public mischief').
The charges brought against Ms Roy and co-defendant Professor Sheikh Showkat Hussain, former Professor of International Law at the Central University of Kashmir, in 2023 also include charges under Section 13 of the UAPA ('any unlawful activity'), which relates to the incitement or commission of a broad ambit of conduct.
In October 2023, Lieutenant Governor Saxena sanctioned the prosecutions for the charges brought against Ms Roy and Professor Hussain under the IPC. However, the question of whether authorities could proceed with the prosecution and trial proceedings under the UAPA were under consideration. To proceed, the Lieutenant Governor must issue a sanction order based on the merits of the case presented by the police.
On 14 June 2024, Lieutenant Governor Saxena granted permission to proceed with prosecuting Ms Roy under Section 45(1) of the UAPA. Concerningly, the UAPA sanctions the lengthy detention of individuals without charge and contains a high threshold for bail - Section 43D (5) effectively prohibits bail and permits the detention of individuals in custody for years without trial.
IBAHRI Co-Chair and former President of the Commonwealth Lawyers Association, Mark Stephens CBE, stated: 'I reiterate that the IBAHRI calls for all charges against Ms Roy to be dropped immediately. Furthermore, we urge the Indian authorities to consider reform of the UAPA as it contradicts India's international legal obligations. We also call on the Indian authorities to put an end to the harassment of individuals including human rights defenders, lawyers and journalists and to stop weaponizing the law to intimidate, silence and discredit independent voices. The Indian government must recognise that other rights can only be protected when fundamental rights are guaranteed. We reiterate the need to protect free opinion and expression in the country, per India's constitutional and international legal obligations.'
On 13 June, the IBAHRI and Lawyers for Lawyers (L4L) had made a submission to the United Nations Human Rights Committee ('the 'Committee') ahead of its examinations of India's implementation of the provisions of the International Covenant on Civil and Political Rights (ICCPR), in light of the State Party's fourth period report under article 40 of the ICCPR during its 141st session, taking place from 1-23 July 2024.
The submission highlighted several concerns relating to the lack of independence of the legal profession in India, threats and harassment faced by lawyers and human rights defenders and the consequences thereof for the protection of certain ICCPR rights. The concerns shared in the submission are particularly relevant for the Committee's evaluation of India's implementation of the right to a fair trial under Article 14 of the ICCPR.
The IBAHRI and L4L concluded the submission by finding that the right to a fair trial, as guaranteed by the ICCPR, is not sufficiently guaranteed by India. The two organisations raised special concern around the alleged misuse of the UAPA by the Indian authorities to target human rights defenders and dissident voices and called on India's government to take immediate measures to cease any misuse of the UAPA.
