The High Court Bar Association defended its decision to not allot chambers to two lawyers who unsuccessfully contested the Assembly elections, saying they had “violated” the constitution of lawyers’ body
Srinagar: United Nations resolutions, supporting the right to self-determination for people of Jammu and Kashmir, echoed in J&K High Court, two days ahead of 65th anniversary of the world body’s declarations over the state.
President of Kashmir High Court Bar Association advocate Mian Qayoom raised the issue during the hearing of a writ petition filed against the lawyers’ body’s decision not to allot chambers to two advocates who had unsuccessfully contested recently concluded election to state assembly.
It was on January 5, 1949 that the world-body adopted as many as 18 resolutions in its security council with both India and Pakistan as signatories, favoring plebiscite for the people of the state amid complete demilitarization on both side of the Kashmir.
According to the Bar, the duo—Mansoor Ahmad Ganie and Nazir Ahmad Malik—are no longer its members as they have “violated” its constitution which supports UNSC resolutions over Kashmir.
Ganie had contested from south Kashmir’s Bijbhera assembly segment on a Congress ticket while Nazir Ahmad Malik was in the fray from north Kashmir’s Bandipora constituency as an independent candidate.
“Bar Association has its own constitution. Any eligible person wanting to become its member has to abide by the constitution and every member is duty-bound to respect it. If anybody violates it, he ceases to be its member,” Qayoom said and questioned contentions raised by the duo that Bar should be debarred and should be directed to devise a criteria for the allotment of the chambers.
“Bar Association is not an authority or a state in terms of the (JK) constitution’s Article 12. We are not subjected to the jurisdiction in terms of the Bar Association to this court. Assuming that somebody wants to file a writ petition against the Bar, he should be the member of the Bar. If he is not a member, he can file a writ petition against the association.”
In this case, he said, both the petitioners are not members of the association, for whatever reasons they have been expelled.
“How can they file writ petition against us. It would have been different if was the Bar counsel. We have our own constitution, we have our resolution and policy decisions. Whatever these resolutions say, they are binding on the members. We are not forcing anybody to be a member and whosoever joins out of free will is governed by the constitution and he has to abide by it.”
He also a made a reference to United Nations Resolutions, which have been placed on record by the association with its objections to petition.
At this stage, advocate Shabnum Lone, even though not a party in the case, interrupted and said Bar President “cannot play to gallery in the court of law”
“He cannot make speeches here. No member of the Bar should be allowed to use the court to raise a political problem. If I make this submission before the chief justice of India as a Supreme Court Bar member that the (KHCBA) president was making the speeches about UN resolutions, your (Qayoom’s) license will be cancelled,” Lone, daughter of slain Hurriyat leader Abdul Gani Lone, said.
“It has become a business for them. Let him make this speech in Lal Chowk. That means he does not accept the territorial jurisdiction of India,” Lone said evoking a sharp reaction by Qayoom.
“All right, you take this license. We as Bar Association members are not bothered about the licenses. Rights of people, right of self determination comes first,” Qayoom said.
“In this matter we have placed all the resolutions of United Nations on record. Holding of election in Jammu and Kashmir is not permissible in terms of those resolutions. If even you go for any elections, it is specifically written in the resolutions that it will not have any bearings on the status of the Kashmir issue,” Qayoom said.
In the jam- packed courtroom which was occupied mostly by the lawyers, Qayoom continued with his arguments, maintaining that criteria for distribution of the chambers and policy decision taken by the association was fair, just and appropriate.
Summing up his arguments, he said, since Bar is not a state or authority, no writ can be made against it. “May be against government, High Court and anyone else but against Bar association they have no power,” he said.
He said the December 29 order, regarding allotment of chambers has already been put into practice as “seats have been allotted and people have already occupied them”.
The Bar had on December 29 allotted 105 chambers in favour of 273 lawyers practicing in High and Lower courts.
“If some members violate the constitution, he automatically ceases to be a member of the association,” Qayoom said.
He also defended the Bar’s decision to allot the chambers to government advocates and the Advocate General, saying they continue to be members even though they cannot contest for any post in the Association as per the constitution.
Advocate Jehangir Iqbal Ganaie, representing the High Court, said that Bar Association has already been requested to come up with a reasonable, just and fair criterion for making allotment of chambers in favor of the practicing lawyers. “No such criteria have been placed before the High Court so far,” he said.
Earlier advocate Azhar-ul-Amin, representing the duo, pleaded in support of allowing the writ petition.
After hearing all the parties, a single bench of the court comprising Justice Hasnain Massodi “put on hold” the allotments and posted the case in February.