Advocate Syed Shabir Bukhari
A Legal Practitioner
The filing of a charge-sheet, nearly sixteen years after the registration of FIR No. 27/2010 at Police Station Maisuma, Srinagar, against senior advocates associated with the J&K High Court Bar Association has once again brought an important question before public discussion. What is the place of a lawyer in a democratic society, and what constitutional and international protections are available to a lawyer when he disagrees with the State?
According to the prosecution, on 29 March 2010, a group of advocates proceeded from the District Court Complex towards LalChowk despite prohibitory orders issued under Section 144 CrPC. It is alleged that slogans were raised and that provocative speeches were delivered. The FIR was registered under Section 188 RPC and Section 13 of the Unlawful Activities (Prevention) Act, 1967. The charge-sheet subsequently filed names five persons, Advocate Mian Abdul Qayoom, ( Former President of j&k High Court Bar Association Kashmir) ,Advocate Ghulam NabiThoker @ Shaheen, Advocate Mohammad Amin Bhat, Advocate Aijaz Ahmad Baidar and Advocate Bilal Ahmad Bhat. The record itself states that Advocate Bilal Ahmad Bhat has since died. Thus, the proceedings presently concern the surviving advocates
This article is not intended to pronounce upon the guilt or innocence of any accused. That is the exclusive domain of the competent Court. The purpose is to examine the larger constitutional question: whether, and to what extent, a lawyer enjoys protection when participating in public affairs, protesting governmental action or expressing an unpopular view.The answer requires a careful balance.The State has a legitimate right to protect its sovereignty, territorial integrity and public order. At the same time, the lawyer has a legitimate constitutional role in questioning State action, defending unpopular causes and participating in public life.
The strength of a democracy lies precisely in maintaining both principles simultaneously.
1. A lawyer is more than a professional When government action affects fundamental rights
In ordinary language, a lawyer is someone who represents a client before a court.Constitutionally, the role is much larger.
A lawyer is an important participant in the administration of justice and one of the principal links between the citizen and the State. For an ordinary citizen, the State can sometimes appear distant and powerful. The lawyer stands between that individual and the enormous machinery of government. When a person is arrested, the lawyer asks:
Was the arrest lawful?
When property is taken, the lawyer asks:
Was due process followed?
When government action affects fundamental rights, the lawyer asks:
Does the Constitution permit it?
When an accused is charged with a serious offence, the lawyer asks:
What evidence does the State possess?
That questioning is not anti-State.It is the rule of law in operation.
2. The lawyer is also an officer of the Court. The legal profession occupies a unique position because an advocate owes duties simultaneously to the client, the Court, the profession and the administration of justice.
The Advocates Act, 1961, together with the professional standards framed by the Bar Council of India, regulates this relationship. A lawyer is therefore neither merely an employee of the client nor an opponent of the government. A lawyer’s ultimate professional responsibility is to the administration of justice and the rule of law.This is why an independent Bar is essential to an independent judiciary.If lawyers become afraid of challenging governmental action, the constitutional system loses one of its important checks.
3. Why society needs fearless lawyers. History demonstrates that constitutional rights are rarely preserved without people willing to question authority.
A lawyer may be required to represent:
a political dissident;
a person accused of terrorism;
a minority group;
a journalist;
a protester;
a person detained under preventive detention laws;
a person challenging government policy; or
even a person whose views are deeply unpopular.
The lawyer does not necessarily endorse the client’s views.
Representation is not endorsement.
This principle is particularly important in cases involving national security. A person accused of terrorism is still entitled to a lawyer. A person accused of sedition or unlawful activity is still entitled to a defence. A person accused of violence is still entitled to a fair trial. The lawyer who provides that defence is not thereby associated with the alleged offence. This principle is expressly recognised in international standards concerning the legal profession.
4. The Constitution protects the lawyer as a citizen There is no separate constitutional chapter titled “Rights of Lawyers.”That is because a lawyer does not need a special constitutional category to enjoy fundamental rights. A lawyer is first a citizen and therefore enjoys the same constitutional guarantees available to other citizens. Among the most important are:
Article 14 — Equality before law
A lawyer is entitled to equality before law and equal protection of laws.
The State cannot discriminate arbitrarily merely because a person is a lawyer or because the lawyer has represented an unpopular cause.
Article 19(1)(a) — Freedom of speech and expression
A lawyer has the right to express opinions, participate in public debate and criticise governmental policies, subject to constitutionally permissible restrictions.
Article 19(1)(b) — Peaceful assembly
A lawyer, like every citizen, has the right to assemble peacefully and without arms, subject to reasonable restrictions imposed by law.
Article 19(1)(c) — Freedom of association
Lawyers have the right to associate, including through Bar Associations, subject to law.
Article 21 — Life and personal liberty
No person, including a lawyer, can be deprived of life or personal liberty except according to a procedure established by law, interpreted by the Supreme Court as requiring fairness, reasonableness and non-arbitrariness.
Article 22 — Safeguards against arrest and detention
Where a lawyer is arrested or detained, constitutional safeguards relating to arrest and detention remain applicable.
Article 39A — Equal justice and free legal aid
Article 39A reflects the constitutional commitment that justice should not be denied because of economic or other disabilities.
This provision demonstrates the constitutional importance attached to access to lawyers and legal representation.
Article 50 — Separation of judiciary from executive
The constitutional commitment to separation of the judiciary from the executive reinforces the importance of an independent legal profession.
5. But Article 19 does not make a lawyer immune from criminal law. This point is equally important.
Being a lawyer does not create a constitutional privilege to violate the law. Article 19 itself recognises reasonable restrictions. Freedom of speech does not protect:
incitement to violence;
participation in terrorist activity;
deliberate acts falling within valid criminal prohibitions; or
conduct otherwise falling within constitutionally permissible restrictions.
Likewise, the right to peaceful assembly does not mean that every assembly can take place wherever and whenever the organisers wish. The State can impose lawful restrictions in the interests of public order. Therefore, the correct proposition is not”A lawyer can do anything in the name of freedom of expression.”Nor is it:”A lawyer who criticises the State can be prosecuted as an anti-national.”The constitutional position lies between these extremes.
6. The State has an equally important constitutional duty
It would be unfair to examine the Maisuma case only from the perspective of the accused lawyers.The State also has constitutional responsibilities. The Constitution expressly recognises:
sovereignty and integrity of India;
national security;
public order; and
the authority of lawful governmental institutions.
Article 19(2) permits reasonable restrictions upon speech in the interests of the sovereignty and integrity of India and public order. Therefore, where there is genuine violence, incitement to violence, terrorism or an actual threat to national security, the State cannot be expected to remain passive merely because the persons involved happen to be lawyers. The constitutional status of a lawyer does not confer immunity from prosecution. The State must be allowed to protect itself. But it must do so through law and evidence.
7. The important distinction between dissent and unlawful activity
This distinction lies at the heart of the present controversy.
Democracy necessarily permits criticism of the government. A person may disagree with:
a government policy;
a constitutional amendment;
an administrative decision;
a court ruling;
a security policy; or
even the political structure of the country.
The constitutional question becomes more serious when expression crosses into incitement, violence or conduct specifically prohibited by law.
The Supreme Court’s decisions in cases such as Kedar Nath Singh v. State of Bihar, Balwant Singh v. State of Punjab, and Shreya Singhal v. Union of India demonstrate the importance of examining the context, intention and proximity between speech and the harm sought to be prevented.
In Shreya Singhal, the Supreme Court famously distinguished:
Discussion → Advocacy → Incitement
Discussion and advocacy occupy a protected constitutional field; incitement can legitimately attract criminal consequences.
That constitutional distinction deserves consideration whenever criminal proceedings are based substantially upon speeches or slogans.
8. A slogan cannot be examined in isolation from its context
The prosecution in the present case alleges that slogans advocating separation of Jammu and Kashmir from the Union of India were raised and that provocative speeches were delivered at LalChowk. Such allegations are undoubtedly serious. But the Court will ultimately have to examine the evidence and determine:
Who raised the alleged slogans?
What precisely were the words?
Who delivered the alleged speeches?
What was the intention?
Was there any incitement to violence?
Was there any actual violence?
What was the surrounding situation?
What evidence connects each individual accused with the alleged unlawful activity?
Do the facts satisfy every ingredient of Section 13 UAPA?
These questions are important because criminal law punishes legally defined conduct, not merely unpopular thoughts or political opinions.
9. Section 188 and UAPA must not be confused
The charge-sheet invokes Section 188 RPC and Section 13 UAPA. If a valid prohibitory order was in force and a person knowingly disobeyed it, the State can certainly take action according to law. But disobedience of a prohibitory order and an offence under the UAPA are legally distinct matters. A breach of Section 144 does not automatically establish the ingredients of Section 13 UAPA. The prosecution must independently establish the statutory requirements of the UAPA. This distinction becomes particularly significant where the accused are alleged to have participated in a procession and raised slogans. The seriousness of the UAPA cannot itself replace proof of its ingredients.
10. International law recognises the independent role of lawyers
The constitutional position is reinforced by international standards.The United Nations Basic Principles on the Role of Lawyers, 1990, are particularly relevant.
Principle 16 provides that governments should ensure that lawyers are able to perform their professional duties freely and without intimidation, hindrance, harassment or improper interference.
Principle 18 states that lawyers should not be identified with their clients or their clients’ causes as a result of performing their professional duties.
This principle is extremely important.
Suppose a lawyer represents a person accused of separatism. It would be entirely wrong to concludethat “The lawyer represents a separatist; therefore, the lawyer supports separatism.”
11. Lawyers have a right to participate in public affairs
Principle 23 of the UN Basic Principles recognises the right of lawyers to take part in public discussion concerning matters relating to the administration of justice and the promotion and protection of human rights.This is significant in the context of Bar Associations.A Bar Association may discuss:
judicial reforms;
legislation;
arrests;
human-rights issues;
access to justice;
conditions of detention;
functioning of courts;
legal policy; and
other matters affecting the administration of justice. Such participation is not inherently political in the objectionable sense.In a democracy, public participation by lawyers can strengthen constitutional accountability.But, again, this freedom is not unlimited. Lawyers remain subject to laws governing violence, intimidation, incitement and other criminal conduct.
12. The ICCPR provides further protection. India is a party to the International Covenant on Civil and Political Rights (ICCPR).
Several provisions are relevant.
Article 14
It protects equality before courts and tribunals and guarantees fair-trial rights.
Article 19
It protects freedom of expression, while permitting restrictions necessary for recognised legitimate purposes.
Article 21
It recognises the right of peaceful assembly.
Article 22
It protects freedom of association.
These provisions recognise the same basic balance found in the Indian Constitution . Freedom is protected, but legitimate restrictions are permitted. The international standard therefore does not provide lawyers with immunity from criminal law. It provides them with protection against arbitrary interference with their legitimate professional and civic functions.
13. The Universal Declaration of Human Rights. The Universal Declaration of Human Rights (UDHR) also provides an important international framework.
Article 7 recognises equality before law.
Article 9 protects against arbitrary arrest and detention.
Article 10 recognises the right to a fair and public hearing by an independent and impartial tribunal.
Article 11 protects the presumption of innocence and fair-trial principles.
Article 19 protects freedom of opinion and expression.
Article 20 recognises peaceful assembly and association.
These principles are especially relevant to any criminal proceeding in which the allegations arise from political expression or public protest.
14. Article 51(c): respect for international law. Article 51(c) of the Indian Constitution directs the State to foster respect for international law and treaty obligations. International human-rights standards therefore provide an important interpretative background while examining fundamental rights. They do not override Indian criminal statutes. But they reinforce the constitutional understanding that:
liberty must be protected;
detention cannot be arbitrary;
trials must be fair;
expression deserves protection; and
peaceful assembly is an important democratic right.
15. The sixteen-year delay cannot be ignored. The most striking feature of this prosecution is the passage of time. The FIR was registered on 29 March 2010, while the charge-sheet is shown as having been filed in February 2026. Approximately sixteen years have therefore passed between the registration of the case and the filing of the final report/ charge-sheet. Delay does not automatically invalidate a prosecution.There may be legitimate reasons for delay, and the State must be allowed to investigate offences properly.But Article 21 also protects the accused from an unfairly prolonged criminal process.
The Supreme Court’s jurisprudence beginning with Hussainara Khatoon v. State of Bihar recognises speedy trial as an important component of Article 21.After such a long period, the Court may reasonably examine:
why the investigation took so long;
whether the accused contributed to the delay;
whether the delay has prejudiced the defence;
whether witnesses remain available;
whether memories and evidence can reliably establish events of 2010; and
whether continuation of the proceedings remains fair and just. The passage of time is particularly significant when the allegations concern speeches and slogans, because recollection of words and circumstances can become increasingly difficult with the passage of years.The fact can’t be ignored that The independence of the Bar cannot become a justification for disorder. However At the same time, governmental authorities must distinguish between professional dissent and criminality
A fearless lawyer is not necessarily an anti-State lawyer.
A critical lawyer is not necessarily a disloyal lawyer.
A lawyer defending an unpopular person is not necessarily supporting that person’s alleged conduct.
These distinctions are essential to a mature constitutional democracy.
18. The Bar and the State are not natural enemies
There is sometimes a dangerous tendency to view the relationship between the Bar and the State as inherently adversarial. That is incorrect.Both ultimately serve the constitutional order.The State protects public order and national security. The judiciary protects legality and constitutional rights.The Bar assists the judiciary by presenting cases fearlessly and independently.The citizen relies upon all three.ThereforeAn independent Bar is not a threat to the State; it is one of the safeguards of a constitutional State.At the same time a strong State is not an enemy of the Bar; it is necessary for maintaining the conditions in which courts, lawyers and citizens can function safely. The real enemy of both is arbitrariness.
19. The constitutional test in the Maisuma case
Ultimately, the Court need not determine whether the alleged political views were popular or unpopular.The Court has to determine whether the prosecution has proved the offences alleged.
The relevant questions are therefore:
Was the prohibitory order validly issued and properly promulgated?
Did each accused knowingly violate it?
What specific conduct is attributed to each accused?
What exact slogans or speeches are relied upon?
What evidence proves those allegations?
Did the alleged conduct satisfy the ingredients of Section 13 UAPA?
Was there the required intention and legal connection with the alleged unlawful activity?
Has the extraordinary delay caused prejudice to the accused?
Is the continuation of the proceedings consistent with Articles 14, 19 and 21?
Does the evidence establish individual criminal liability?
These questions should be decided strictly according to law and evidence.
20. The larger message for Kashmir and the country
The present case has significance beyond the individual accused.
Kashmir, like any other part of India, requires both security and constitutional liberty.Security without liberty can create fear.
Liberty without security can create instability.
The Constitution seeks neither extreme.
It seeks a system in which the State possesses sufficient authority to protect citizens while citizens retain sufficient freedom to question the State.
The legal profession occupies the bridge between these two interests.
When a lawyer challenges detention, he is not necessarily challenging the State.
When a lawyer defends an accused, he is not necessarily supporting the alleged crime.
When a Bar Association protests a governmental action, it is not necessarily acting against the nation.
But when a lawyer himself crosses the legal line into violence or other punishable conduct, he must answer under the same law as any other citizen.That is the correct balance.
Conclusion .
The Lawyer’s Freedom Is Ultimately the Citizen’s Freedom
The case arising from FIR No. 27/2010 presents an opportunity to reaffirm a fundamental constitutional principle.
The lawyer is neither above the State nor beneath it.
The lawyer is a citizen, a professional, an officer of the Court and an important participant in the administration of justice.
The State has the right to prosecute genuine unlawful activity.
The lawyer has the right to defend his client, express legitimate opinions and participate peacefully in public affairs.
International law reinforces these principles through the ICCPR, the UDHR and the UN Basic Principles on the Role of Lawyers.
Indian constitutional law provides the domestic foundation through Articles 14, 19, 21, 22, 39A, 50 and 51(c), subject always to the reasonable restrictions and other limitations imposed by the Constitution and valid law.
The answer, therefore, is not to weaken the State’s power to protect national security.
Nor is it to give lawyers immunity from prosecution.
The answer is constitutional discipline.
The State must use its powers according to law.
The lawyer must exercise his freedoms responsibly.
The Court must remain independent.
And the citizen must remain protected.
The real test of a democracy is not whether the State can silence those who agree with it. The real test is whether the legal system can protect the rights of those who disagree without compromising national security or public order.
As lawyers, our duty is therefore not to stand against the State. Our duty is to ensure that the State, the citizen and the lawyer all remain under the supremacy of law. That is the essence of constitutionalism. And that is ultimately why an independent lawyer is not a threat to the Republic—he is one of the institutions through which the Republic protects itself from arbitrariness.
