A Bar Set Too High

The 1961 law was introduced in J&K in 1986, but has not been implemented so far, with the High Court of Jammu and Kashmir functioning as the de facto bar council. In his petition filed in 2013, Bhim Singh had asked for the setting up of a bar council. Earlier, the central government had declined to notify the direction of the Bar Council of India to hold elections and form the state bar council, stating the situation in Kashmir was not conducive to it.

“The J&K Bar Council has a role in lawyers’ welfare,” says Bhim Singh. “It will have 21 members and I believe each district will be represented. No one should object to its formation.”

At the Valley-based Jammu Kashmir High Court Bar Association (JKHCBA), there have been several meetings since the Supreme Court order. Long seen as an intellectual force behind the pro--freedom political groups, the JKHCBA has to decide whether to -participate in the election or abstain from it. Those in favour of participation say that a bar council dominated by Jammu lawyers would have adverse implications on the political activism of Kashmir---based lawyers. “Anyone can lodge complaint against any Kashmiri lawyer and if the council is lopsided in its composition, it can take extreme decisions that would have serious consequences,” says a -senior lawyer, who often appears for the government.

The JKHCBA was a constituent of the undivided Hurriyat Conference and has been on the forefront of agitations against alleged human rights violations. Valley-based lawyers fear that the bar council might end up being used as a tool to undermine their political activities.

The issue is so sensitive that the state’s advocate-general, 42-year-old Jehangir Iqbal Ganai, refuses to comment on whether Kashmiri lawyers should participate in the election. “I think the JKHCBA should look at both the advantages and the disadvantages while discussing the bar council issue,” he says. “Let them decide. I have nothing to say.”

Those who oppose the council say that the JKHCBA’s participation would amount to endorsing all other elections such as those for the state assembly, which the association has been rejecting as charades. Others, however, call this an obnoxious comparison.

In Jammu, on the other hand, preparations for the polls are in full swing. Significantly, the Jammu Bar Ass-ociation had actively supported the 2008 Amarnath agitation in Jammu, leading to the alleged economic blockade of the Valley.

“The elections to the bar council will be held sometime in June. Before that, we have the Jammu Bar Association elections, which will be held on April 8,” says advocate Sheikh Shakeel Ahmad, who is running for the president’s post and believes that the Kashmir Bar should participate in the council elections, as it is a statutory body with vast powers. The JKHCBA is also holding elections in April and it is likely that new body will decide on the bar council election.

For human rights lawyer Parvez Imroz, the concern is different. “The bar council is a serious matter and that is why it is being debated and discussed in the bar,” says Imroz, who feels the Supreme Court’s interpretation of law pertaining to Jammu and Kashmir is what is worrying. The decision on the bar council shows that the Supreme Court has bec-ome proactive in Kashmir-related legal cases over the past few years and “it is alarming”, he tells Outlook.

Citing the July 19, 2016, decision of the Supreme Court in the Ajay Kumar Pandey Vs State of J&K case, in which the Constitution Bench ruled it had the power to transfer a civil or criminal case pending in any court in Jammu and Kashmir to a court outside the state and vice versa, Imroz says, “It was an interference with the special powers of Jammu and Kashmir, guaranteed under Article 370 of the Constitution of India. Now, anyone can approach the apex court for transfer of any case from Jammu and Kashmir to anywhere else and that will have implications for the people of Jammu and Kashmir.”

In December 2016, the Supreme Court’s verdict on the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, alarmed many in Kashmir. The ruling People’s Dem-ocratic Party came under criticism from the Opposition National Conference, with former CM Omar Abdullah calling the verdict part of the “step-by-step erosion” of Article 370.

The SARFAESI Act, which provides for the direct recovery of loans advanced by banks and financial institutions by seizure, auction and sale of the mortgaged immovable properties held as security in case of a default, was applicable to the state, but when banks in J&K, including the J&K Bank Ltd, started to enforce its provisions, the defaulters went to the high court and questioned its applicability to the state. The high court stayed the proceedings initiated in all such cases and later ruled that Parliament had no power to extend any such law or its provisions to the state on its own.

However, when the State Bank of India appealed against the high court order, the Supreme Court said that the SARFAESI Act deals with recovery of debts due to banks and financial institutions, which is related to a subject under the Union List, and so the Parliament can legislate on it without the concurrence of the state government. Pointing out that Jammu and Kashmir “has no vestige of sovereignty outside the Constitution of India”, the Supreme Court bench comprising Justices Kurian Joseph and Rohinton Nariman rejected the Jammu and Kashmir High Court’s view that the J&K Constitution was equal to the Constitution of India.

Following Abdullah’s offensive, the ruling PDP-BJP government quickly clarified that the Supreme Court order did not affect the state subject laws or provisions of the J&K Transfer of Property Act as property seized can be sold only to a permanent resident of the state. Nonetheless, says Imroz, these judgments of the apex court have caused disquiet among the legal fraternity of the Valley and that is the main reason why talk of the bar council election has ruffled many feathers.

?By Naseer Ganai in Srinagar