Decision Not to Prosecute Arundhati Roy May Be Wise
Her remarks are available on YouTube. As for the question whether there is a strong case of sedition against her, the text of section 124(A), Indian Penal Code sets the bar quite low requiring only “attempts to excite disaffection towards the Government”. The Privy Council had interpreted this to require only evidence of disloyalty, a sentiment “contrary to affection” without any additional requirement to excite disorder but this view was rejected by the Indian Supreme Court in the landmark Kedar Nath Singh v. State of Bihar (1962 AIR 1955) where it held that the provision was constitutional but limited its application “to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
If Arundhati Roy is prosecuted, the outcome will be determined by whether her statements at the Delhi convention meet this standard. Raju Ramachandran argued on an NDTV debate that they do not because the peaceful environment of Delhi is different from Kashmir and the same words are qualitatively different with respect to their possible consequences. That is a plausible argument and one that her counsel will surely make if this were to go to trial. Note however that there is no requirement that disorder must actually manifest in order for the offense to be committed. In Balwant Singh and Another v. State of Punjab (1995(1) SCR 411), the Supreme Court dismissed a charge of sedition against appellants for raising pro-Khalistan slogans because casual slogan raising a couple of times, bereft of any support from any other member of the Sikh community or any reaction from other communities, could not sustain it. The situation here is a little different given the audience she was speaking to but in terms of the prospect of disorder or incitement, that may not mean much. Also, given that this law is seldom used not only in India but in the West as well, a claim of desuetude may well be raised on appeal (supported by a couple of holdings of the Apex Court of somewhat dubious import). On balance, the merits of the case are debatable and with media pressure likely to be piled on, there is no telling which way the judgment might go. The government has probably made the wise choice by deciding not to prosecute her.