Bypassing statute of limitation, stay on sedition law: Why UAPA has been invoked against Arundhati Roy

However, under Section 468 of the Code of Criminal Procedure, courts are barred from taking cognizance of offences which are brought after an undue delay or after the lapse of the period of limitation.

The period of limitation, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, is three years under the statute. This means, the state could not have brought a case against Roy and Hussain for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony (Section 153A); making imputations, assertions prejudicial to national-integration (Section 153B); or for making statements conducing to public mischief (Section 505).

The FIR, filed in 2010, also carried IPC Section 124A which penalises sedition. While the sedition charge could have removed the limitation bar under Section 468 CrPC, the Supreme Court in May 2022 stayed the operation of the provision, underlining its overbroad definition and rampant misuse.

With the stay on sedition law, invocation of UAPA charges against Roy and Hussain is crucial to ensuring a court accepts the case.

Section 13 of the UAPA deals with punishment for unlawful activities for advocating, abetting or inciting any unlawful activity and is punishable with imprisonment up to seven years. The UAPA also grants the state more powers than it has in ordinary criminal law – from relaxing timelines for the state to file chargesheets and its stringent conditions for bail.

Crucially, the definition of “unlawful activity” includes phrases used in the sedition provision.

Unlawful activity under the UAPA is defined to include an act which causes “disaffection against India” among others. IPC Section 124A also criminalises an act to “excite disaffection towards the Government estab­lished by law in India.”

In the 1962 landmark ruling in Kedar Nath Singh v State of Bihar which issued guidelines on invoking sedition law, the Supreme Court said “it is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”

“A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder,” the Court had said.