Nalini Balakumar's 'Free Kashmir' placard not an act of sedition; archaic law has no place in 21st Century India

  • It is public knowledge that the sedition law is a colonial offering that the British enacted to muzzle all forms of dissent in India

  • It was invoked the most during the freedom struggle, to imprison and therefore suppress the vociferous freedom fighters

  • This sweeping chasm between the text of the law and the actual import of the law, is perhaps one of the dominant reasons why the law is, with impunity, wrongfully being used to the advantage of the establishment

The Mysore Bar Association passed a resolution this week announcing that none of its members will represent the journalist student, Nalini Balakumar. She is currently facing sedition charges for holding a 'Free Kashmir' placard during a protest organised earlier this month, by the Dalit Students' Association and Mysore University Research Students Association, in Mysuru.

At the outset, the association's resolution brings into focus two crucial issues of constitutional importance: First is the legality of the resolution depriving Balakumar of her fundamental right to be represented in a court of la and second is the clichéd absurdity of invoking the vague, colonial sedition law, which clamps down on free speech.

Right to legal representation

In terms of the legality of the resolution, it is an established law under the Indian Constitution that every person has the basic right to legal representation. Article 22(1) provides that no person shall "be denied the right to consult, and to be defended by, a legal practitioner of his choice". Additionally, the Supreme Court, in landmark decisions such as Hussainara Khatoon versus Home Secretary, State Of Bihar (1979); Khatri versus State of Bihar (1980); and Ajmal Amir Kasab versus State of Maharashtra (2012), has clearly observed that Article 21 of the Indian Constitution implicitly includes the accused person's fundamental right to legal aid.

 Nalini Balakumars Free Kashmir placard not an act of sedition; archaic law has no place in 21st Century India

File image of Nalini Balakumar. News18

Legal rights are, in the strictest sense, correlative of legal duties, and they constitute interests that are protected by imposing corresponding duties on others. In other words, if an accused person has the right to legal representation, a lawyer has an unequivocal duty to provide that legal representation. The nature of the alleged crime, and determination of innocence or guilt of the accused, go to the substance of the trial, and are irrelevant to the issue of the accused person's procedural right to counsel.

Further, Chapter II (Part VI) of the Bar Council of India Rules stipulates the Standards of Professional Conduct and Etiquette. In that, the relevant portion of Rule 15 of the BCI Rules provides that an advocate must "defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence".

Moreover, the Supreme Court, in the case of AS Mohammed Rafi versus State of Tamil Nadu (2010), expressly ruled that the resolutions passed by bar associations — that they will not defend a particular person in a particular criminal case, "are wholly illegal, against all traditions of the bar, and against professional ethics". The court went to state that "[e]very person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive [as] he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him."

It is in this backdrop that one has to view the legitimacy of the Mysore Bar Association's resolution not to represent Balakumar, who held the 'Free Kashmir' placard during a peaceful protest. It is harrowing, to say the least, that the association would pass such a resolution, despite the established law, morality and professional etiquette dictating otherwise.

The archaic sedition law

When it comes to the second issue — the sedition law, it is public knowledge that this law is a colonial offering that the British enacted to muzzle all forms of dissent in India, and that it was invoked the most during the freedom struggle, to imprison and therefore suppress the vociferous freedom fighters. The sedition law prohibits words (spoken or written, or by signs, or by visible representation) that "[bring] or [attempt] to bring into hatred or contempt, or [excite] or [attempt] to excite disaffection towards the government…"

Given the vague and the broad contours of the key words of the provision — "hatred", "contempt" and "disaffection", and given that it was likely to be (and has indeed been) misused by the ruling dispensation on numerous occasions in Independent India to illegitimately scuttle the constitutional right to free speech and expression, the courts have, over the years, narrowed down the construct of these words. The law as it stands today is this: Merely spreading "hatred", "contempt", or "disaffection" against the government does not suffice to constitute sedition, but it must also incite public disorder. This sweeping chasm between the text of the law and the actual import of the law, is perhaps one of the dominant reasons why the law is, with impunity, wrongfully being used to the advantage of the establishment.

In light of the above, and with a focus on the Balakumar case, the question is whether the 'Free Kashmir' placard caused "hatred", "contempt" or "disaffection" against the government to an extent that it incited violence and public disorder. From the perspective of a reasonable person of ordinary prudence, it is eminently far from it. If anything, this case is demonstrably a textbook case of misuse of the sedition law, that has the inevitable effect of chilling free speech.

The applicability and relevance of the sedition law in the 21st Century is debated time and again, and it is perhaps about time that we reconsider its existence on the statute book.

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Updated Date: Jan 17, 2020 12:08:43 IST