Rajshree Chandra 
I toiled through Arundhati Roy’s Ministry of Utmost Happiness, but what the book did was to make the transgender community and their extreme vulnerabilities visible to me in ways that I had not seen before. Each time I see them at a traffic red light now, I smile as I hand over a small cash-note, time permitting I ask them their names, pay them a compliment, oftentimes wondering about their back-stories as I drive on. This is what Roy does best: she humanises the vulnerable in a way that we begin to feel and empathise – with the tribals of Dantewada, with the displaced locals of the Narmada Valley, with the anti-mining protestors at Jaduguda, or with the Kashmiri locals. It is important to underscore the emotion she evokes, as much of the debate on what she is charged with – sedition, treason, fostering enmity – rests on the impact of her words.
It is also important to understand that many of us who admire her courage and commitment, disagree with the political resolutions she proposes. And it is not because we cannot see the atrocities and appropriation, or do not seek an end to conflict and injustice. It is because there are differing perspectives on their political resolution. We may not agree with her solutions for Kashmir, or her ideas of developmentalism, or her summary dismissal of capitalism but the point simply is this: We do not have to agree with or be persuaded by the Manichean dualities she draws up, to acknowledge the legitimacy and constitutionality of her speech-acts.
Arundhati Roy today is now going to be being tried under many provisions of IPC along with the Unlawful Activities Prevention Act (UAPA) for a speech she gave in 2010, 14 long years ago.
Fourteen years ago, she was charged with sedition (S. 124 A) based on a complaint that her speech (in Delhi) advocated separation of Kashmir from India and therefore “jeopardised public peace and security”. Fourteen years later, charges have been upgraded, and she is now also charged under the anti-terror law UAPA for reasons that are legally confounding but politically quite apparent. A few more years later – after her multiple bail applications are opposed and rejected, after police extensions, after a chargesheet is filed and after her trial begins – our over-loaded legal system will spend time to ascertain the possibility of a causal link between her speech and the resultant exacerbation of conflict and secessionist impulses in Kashmir in these long intervening years. Till then, UAPA’s draconian provisions will effectively sanction her pre-trial detention, notify her as a threat for extended and extendable periods of time, with a stronger-than-ever presumption against bail.
Along with Arundhati Roy, Sheikh Showkat Hussain – a former professor at the Central University of Kashmir, who was also a speaker at the 2010 event – has been similarly charged. Before Roy, journalists incarcerated under UAPA include Aasif Sultan of Kashmir Narrator; Sajad Gul of The Kashmir Walla; independent journalist Rupesh Kumar Singh; independent journalist Gautam Navlakha; Siddique Kappan journalist from Kerala; Prabir Purkayastha of NewsClick and independent journalist Irfan Mehraj, to name some in a list that is likely much longer.
Also read: A Captive’s Musings on Freedom: Gautam Navlakha’s Notes From Prison
UAPA has also claimed 16 people in relation to the Bhima Koregaon violence, arrested systematically from June 2018 onwards. This includes human rights lawyers, civil rights activists, a law professor, a professor of English, a poet, a student, a Dalit-rights activist and a Jesuit Father – almost all of them had worked for the protection tribal-rights. Of the 16, only six have received bail so far, while one person – Father Stan Swamy – died in custody. UAPA has also been used to incarcerate 18 persons (accused in FIR 59) for riots in Delhi during the anti-CAA (Citizenship Amendment Act) protests. Twelve, including a brilliant scholar, Umar Khalid, are still awaiting bail nearly four years after being arrested and held without trial.
UAPA is an” exceptional law”, i.e. those laws that exist as exceptions to “ordinary” statutory law, and deal with exceptional contingencies like terror or treason. It is a special statute that bypasses safeguards available to the accused under statutory law provisions. For example, it allows for a 180-day detention without a chargesheet; sanctions police custody up to 30 days; bars anticipatory bail, and creates a strong presumption against bail. As per NCRB data, over 241 cases under sedition and 5,610 under the UAPA are pending investigation. To this the government has added many more in 2023 and 2024, Roy being the latest and the most illustrious.
Colonial-era laws were marked by one basic feature – they enabled perpetual and continued expansion of punitive powers that the State exerted over its subjects. The argument that we are in the process of decolonizing laws is a bogus one and it reveals our hypocrisies more than anything else. There are two modes through which the coloniser’s mentality continues to be deployed. First, through a constant declaration of emergency and danger, and by showing rights as a “limitation” on the regime’s capacity to deal with the threat. This makes it possible for the sovereign to (a) create an “exceptional” regime of repression inside the larger framework of democratic legality; and (b) sanction the breach of an ethical minimum represented by basic rights and their statutory safeguards, thus reproducing the dynamic of subjecthood in present times.
Second, by making ordinary law an instrument of state power rather than citizen power. In December 2023, when replacements to the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act were introduced in the parliament (as the Bharatiya Nyay Sanhita (BNS), Bharatiya Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam (BSA), Union home minister Amit Shah said that the “Modi government decided to change all such colonial laws… [as] these Acts were primarily to protect the Britishers and the British regime. These laws had nothing to with the protection of Indians.”
According to Shah, the primary impulse behind the three new laws is to “protect Indians”. As these new laws come into force from July 1, 2024, it is important to understand that they do little to deviate from the colonial mentality of an all-powerful state. Perhaps the most significant vestige of coloniality in our criminal laws, as Mrinal Satish et al remind us, is the IPC’s chapter, ‘Offences Against the State’, which includes the offence of sedition under Section 124A.’ It really is of little consequence that sedition law does not find a mention in the BNS. ‘Sedition’ has been replaced in the BNS by a new offence, Section 152, that penalizes activities that excite ‘subversive activities’ or encourage ‘feelings of separatist activities’ or endanger the ‘sovereignty or unity and integrity of India’. The BNS does not explain what constitutes exciting ‘subversive activities’ or encouraging ‘feelings of separatist activities’, thus making its application unpredictable. But what makes the BNS even more lethal in its implication is that this new law will not be constrained by the interpretative precedents and limits set by the courts while adjudicating sedition law under Section 124 A.
One of the modes through which colonial law functioned was through a dual legal system – one for the coloniser and one for the colonised, the former enabling the subjugation of the colonised. The coloniser mentality in conditions of electoral democracy is replaced by a “dual state”, drawing from political scientist Stephen Holmes’ brilliantly stylised thesis. The duality does not lie in two different sets of law but in differentiating application of the same law. While the democratic façade of rule-of-law is kept intact, structures of law are kept deliberately unclear, ambiguous and fluid. Who, when, how and under what conditions will the law come to incarcerate is kept predictable for the sovereign but unpredictable, arbitrary and “maddeningly erratic” for the citizens.
The true test for decolonized law is not what it calls itself. It is in how it treats its citizens: as “subjects” who cannot be trusted and therefore are treated as the “other”, or as citizens who can hold power accountable. The colonial dynamic does not necessarily end with a nomenclature makeover.
Rajshree Chandra teaches political science at Janki Devi Memorial College, Delhi University.