K B Jandial
Bizarre things happen in Kashmir. One such thing happened on December 29, 2014, just six days after the result of historic and widely acclaimed highly participative Assembly elections were announced. The President of Kashmir’s High Court Bar Association (HCBA) Mian Abdul Qayoom, while allotting Lawyers’ chambers to its members, took a strange and repugnant decision to debar those lawyers who have contested elections under Indian laws, from allotment of these Chambers.
straight talk
Two Advocates, Manzoor Ahmad Ganaie and Nazir Ahmad Malik are among those who were denied these Chambers for contesting the recent assembly elections. They filed a writ petition in the High Court challenging the order. As is evident, the HCBA considers fighting elections under Indian laws a “serious crime” for which the “violators of its diktat” are denied a facility created by the Indian state. These Chambers at Srinagar have been constructed by the J&K Govt. out of the State funds through its J&K Project Construction Corporation under the supervision of the High Court. While the Corporation denied that these Chambers have been formally handed over, the HCBA went ahead with allotment.
During the hearing of the petition in the Hon’ble High Court, Qayoom told the Bench that it is a policy of the HCBA to work for resolution of “Kashmir dispute” and not to take part in elections. So, any lawyer violating the policy of HCBA would cease to be its member and they cannot be considered for allotment of Lawyers Chambers.
While Pakistan’s sponsored militants and separatists had failed to prevent the majority of the electorate of Kashmir from participating in elections despite their diktats, boycott calls and threats, the HCBA atleast has succeeded in “punishing such violators”.
Qayoom strongly defended the decision with arguments as if he was addressing Ban Ke Moon and not the Hon’ble High Court. According to media reports he placed on record UN resolutions and told the Court that “holding of election in Jammu and Kashmir is not permissible in terms of UN resolutions”. He further pleaded, “Even if you go for elections, it is specifically mentioned in the resolutions that it will not have any bearings on the status of the Kashmir issue”.
This ‘anti- India’ monologue questioning the territorial integrity of the country continued in the court without any objection from Govt. lawyers. Qayoom, however, got a mouthful from an unexpected quarter. The celebrated Senior Supreme Court Advocate Shabnum Gani Lone cautioned Qayoom against the merit of his argument and said, “If I make this submission before the Chief Justice of India in Supreme court as a Supreme Court Bar Member that Kashmir Association Bar President was making the speeches about UN resolutions, which means he does not accept the territorial jurisdiction of India, his licence will be cancelled”.
Instead of retracting his irrelevant and grossly objectionable argument, he retorted in utter contempt before the Hon’ble Court “All right, you take this licence. We are not bothered about the licence. A person’s right of self determination comes first.”
Daughter of Abdul Gani Lone, slain mainstream politician turned separatist leader, Shabnum neither holds brief for the State or the Central Government nor does her intervention appear to be out of love for India, but purely as a professional. Ms Lone has also challenged the said allotment order through a separate petition on the different ground of gender bias. Her petition questioned the action of the Bar President of “packing” seven women Advocates including her into one Chamber despite the fact she qualifies for a separate Chamber as she have more than 15 years’ standing at the Bar. She is reportedly fighting for the right of dignity of women advocates and right of equality under articles 14 & 21of the Constitution of India.
Are UN resolutions relevant to the case? Should the Hon’ble Court allow such frivolous and anti-India rhetoric that questions the very integrity of the country? The low key coverage of the case in the media, however, was silent on the reaction of the Hon’ble Court to this anti-India arguments but the Hon’ble Court has “put on hold” the allotment of chambers to the Bar members. Incidentally, the son of a Hon’ble Judge has also contested election from Pampore.
Several issues arise from this unsavory episode that would make all Indians disappointed and depressing. Is the State so helpless to check such types of anti-India rhetoric in J&K even at a highest judicial forum? Can the forum of judiciary be used for political discourses? Can the courts adjudicate the “resolution of Kashmir issue” and the implement UN resolutions? Aren’t the UN resolutions reduced to mere political weapon by Pakistan and its henchmen in the state for “India bashing”? Do these resolutions in any way prevent holding elections or even negate their importance? Are these resolutions in any way binding and implementable? Host of other issues come to the fore which call for separate debate in these columns at a later date.
It is appalling to see that HCBA is denying a facility created by the State to some lawyers on the pretext of outdated and irrelevant UN resolutions and fighting elections. Contesting elections is a legal right of an eligible citizen and so is his right of franchise. The Chambers constructed by the State Govt. are not the private property of Qayoom which he can dispose of the way he likes. Can any facility or service be denied to an otherwise eligible citizen of India because he has fought election? It is absolutely an absurd ground.
India is, indeed, a liberal democracy which provides ample space for all sorts of views and opinions including to the secessionists and groups of public opinion supporting them but it happens as a part of the political debate. No institution, be it the statutory or the public, can allow a debate questioning India’s territorial integrity and its jurisdiction in the matter of extending any facility or service. HCBA is politically aligned to Hurriyat Conference but bringing this ideology into its functions and “punish” those who defy its political agenda are unacceptable.
Qayoom knows well those he posses the licence of advocate from the J&K High Court under Advocate Act that enables him to practice in courts in J&K and elsewhere in India including SC only because of his being the citizen of India which is the prerequisite for eligibility. He is a citizen of India only merely because J&K is the integral part of India whose territorial jurisdiction he is challenging. Section 24 of the Advocate Act says that “a person shall be admitted as an advocate on a state roll if he fulfills the following conditions”, the first being the “citizen of India” followed by another condition of having passed the “degree of law from any University in India”. Qayoom must have mentioned himself a citizen of India and also the name an Indian University, may be Kashmir University, from where he passed his degree of Law that falls in the jurisdiction of India to fulfill the conditions for the licence but now he questions the territorial jurisdiction of India in J&K.
Qayoom is most welcome to surrender his licence obtained under the Advocates Act and thereafter savor his freedom and independence from the shackles of Indian State and try to find and discover of joys and advantages of his status on a level playing field.
The muffled response of the Indian State to such brazenly anti-India illogical and illegal discourse even in Courts is beyond comprehension of ordinary Indian. The counter arguments are not weak as many of us have been made to feel. What is needed is to stand up and talk straight to all such rhetoric in the public domain and even at legal fora. In the absence of strong factual response, generation after generation in Kashmir would believe in all hostile narrative that are creating perpetual uncertainty in their minds. Let there be no walk over.
(feedback:kbjandial@gmail.com)
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