Riyaz ul Khaliq
Srinagar: A team of senior lawyers in Srinagar is busy drafting a petition against the “validity” of the National Investigation Act, which governs the NIA, in J&K state.
A member of the Kashmir Bar Association told Kashmir Reader that a team of nine senior lawyers was formed some days ago, to study “all pros and cons of the (NIA) act”.
“There have been mistakes…procedural flaws in (the working of) NIA in Kashmir,” he said. “So, our lawyers are on the job. They are studying it minutely; exploring all the options.”
In its first major case against the pro-freedom grouping, Hurriyat Conference, the NIA has arrested seven of its top leaders, whose judicial remand will end today (Thursday). They will again be presented before the Patiala House court in New Delhi on Friday.
The NIA has alleged that Hurriyat Conference members are recipients of hawala money transferred from Pakistan for “running subversive activities in J&K”.
“The Bar will be, primarily, challenging the validity of the (NIA) act in J&K,” the Bar member said, without sharing further details. “We will question whether the (NIA) act can be extended to J&K.”
He said that the NIA act specifies that “Special Courts” will be set up in all states and “J&K government has claimed that it has established one”.
Explaining the grounds on which the validity of the NIA Act in J&K can be challenged, former advocate-general of J&K, MI Qadri told Reader: “Everything in the Act can be challenged on the grounds of jurisdiction. J&K enjoys a special position (in the Union of India) and central acts do not directly apply here.”
He said that Maharaja Hari Singh at the time of his accession treaty with the Union of India, had acceded only on three matters — Communications, External Affairs, and Defence. “This ‘defence’ related to safeguarding of borders (of J&K) and it had nothing to do with internal security of the state,” the lawyer said.
“The laws that are applicable to law-and-order problems, or that of rebellions, are in the state list. It is the J&K state government that has to deal with,” he said.
However, he added, “The question arises, whether the central government can interfere in the internal security of J&K state.”
He said that the relation of J&K state with the Union of India is governed by Article 370. “The NIA Act can be challenged on the grounds of whether the state government had the legal jurisdiction to extend it to J&K,” he said.
“We are vigorously working on it,” another senior lawyer said, “We can file a petition; we have material with us.” The government had already declared that Ranbir Penal Code was the best and sufficient law to deal with all cases, including terror related issues, and there is no need of extending the National Investigation Agency (NIA) Act in Jammu and Kashmir.
Those part of the team include Advocates ZA Shah, ZA Qureshi, Bashir Ahmad Bashir, RA Jan, Altaf Haqani, Mushtaq Ahmad Makhdoomi, Syed Manzoor, GA Lone, Arshad Andrabi, Nazir Ahmad Ronga, Reyaz Khawar, and Mohammad Shafi Reshi.
After formally arresting seven resistance leaders in July, the NIA had sought, and won, a 10-day remand from the Patiala House court. The remand ends today.
The incarcerated Hurriyat Conference leaders, including Peer Saifullah, Altaf Ahmad Shah, Nayeem Ahmad Khan, Ayaz Akbar, Mehraj ud Din Kalwal, Shahid ul Islam and Farooq Ahmad Dar alias Bitta Karate, are being provided legal aid by a rights group called Committee for Release of Political Prisoners. It is based in New Delhi.
A member of this group told Kashmir Reader over phone from New Delhi that three lawyers have been engaged to defend the Hurriyat leaders. “They will be presented in court on Friday,” he said. “We can’t do anything unless we come to know of the allegations that have been levelled against these leaders.”
The NIA was established by the Government of India to combat “terror”. It came into existence with the enactment of the National Investigation Agency Act 2008, passed by the Parliament on 31 December 2008.
The NIA is empowered to deal with “terror related crimes across states without special permission from the states”.