Srinagar, Feb 11: After Standing Counsel in SC is sacked, law-knowing officers ask: ‘Why sensitive cases under challenge not being defended by senior lawyers?’
The J&K government’s decision to sack its Standing Counsel in the Supreme Court, Sunil Fernandes, has once again brought into focus the debate over state’s special position amid differences between the alliance partners—PDP and BJP—on the sensitive issue. While there are concerted efforts on part of different groups, some of them backed by the right-wing Bharatiya Janata Party, to challenge and breach J&K’s special status, the state government has come under criticism for failing to put up “best defense” to fight the legal battles against such moves which can have “disastrous consequences” for J&K’s identity.
After the coalition government took over the reins of the state, it was a former top police official from J&K and BJP’s National Secretary Farooq Khan who challenged a High Court order directing hoisting of J&K flag by state’s constitutional authorities. At present, the Supreme Court and the Delhi High Court are hearing at least six petitions challenging Article 370, Article 35-A and other critical legal matters related to state’s special position.
Though the PDP and BJP, in their ‘Agenda of Alliance’, have agreed to “maintain all the constitutional provisions pertaining to J&K”, the BJP’s recent protest in the State Assembly against Chief Minister Mehbooba Mufti’s remarks that those who talk against Article 370 are “anti-national”, has highlighted the BJP’s stand on the sensitive constitutional matter.
While a petition filed in the Supreme Court has challenged Article 35-A—giving special rights and privileges to permanent residents of J&K while empowering the state legislature to makes laws—on the ground that the President has no power to modify/amend an Article of the Constitution of India while applying it to J&K, another petition, which pertains to reservation in promotions, has raised questions over permanence of the Article 370.
When the Supreme Court upheld applicability of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act to J&K in December last year, legal luminaries including former State Advocate General, MI Qadri, questioned the government’s lackadaisical approach towards the sensitive issue that is linked to state’s special position. Delivering the judgment, the Apex Court had said that J&K has “no vestige of sovereignty outside the constitution of India” while rejecting J&K High Court’s ruling that State Constitution was equal to Constitution of India.
“The failure of the government to follow on the matter is deplorable. They (Government) should have engaged constitutional lawyer or a senior lawyer like Attorney General or Solicitor General to plead the case,” Qadri had told Greater Kashmir.
A senior official in the Law Department said the government “doesn’t seem to have learned from its mishandling of the SARFAESI case”.
“There are cases going on in both the Supreme Court and Delhi High Court where the petitioners have challenged the state’s special position. It is the question of State’s identity and its survival. If, in any of the petitions, any court (Supreme Court/Delhi High Court) upholds the challenge, it will have a cascading impact on the state’s special status. It will be an irreparable breach which can have disastrous consequences,” the official, wishing not to be named, said.
Another Law department official while blaming the successive regimes for erosion of state’s autonomy said the worry is that in none of the cases under challenge, in the Supreme Court or the Delhi High Court, is being defended by a senior lawyer.
“This is despite the bitter experience and criticism that they (State Government) had to face for failing to hire any senior lawyer to defend the SARFAESI case,” said the official.
The SARFAESI Act allows banks and financial institutions in J&K, both from within and outside state, to auction mortgaged properties to recover loans in case of default. But the auction of the mortgaged property would be governed by the State’s Transfer of Property Act. However implementation of the SARFAESI Act to J&K is seen as a challenge to J&K’s Permanent Resident Act, which disallows non-state subjects to own properties in J&K. Besides, no company other than J&K Bank enjoys the status of state subject in J&K.
The outcome of the case saw J&K firing its Standing Counsel in the Supreme Court on last Monday after he reportedly refused to file a review petition to dispute the court’s views on the SARFAESI case judgment.
