February 2017 News

J&K Sacks Its Counsel In SC After He Disagrees On Sovereignty

8 February 2017
The Indian Express
Utkarsh Anand

New Delhi: Weeks after the Supreme Court said that Jammu and Kashmir 'has no vestige of sovereignty outside the Constitution of India', the state government, following an uproar in the Valley, has fired its standing counsel in the top court after he reportedly refused to file a review petition to dispute the court's views. Supreme Court lawyer Sunil Fernandes, who has been the chief standing counsel for the state since September 2015 during his second stint, was on Monday evening instructed to resign 'immediately'. Fernandes, according to the sources, was not given any specific reason why he was being sacked. In his first stint, the lawyer served as J&K standing counsel from May 2010 to September 2013. When contacted, Fernandes said: 'I was asked to resign. Hence, I put in my papers. Beyond that, it is not appropriate for me to say anything. Kindly direct your queries to the state government for the reasons behind this decision.' State government's Law Secretary Abdul Majid Bhat, when contacted over the phone, initially said that Fernandes resigned on his own. But when told that the lawyer had said that he had been asked to quit, Bhat declined to comment. J&K Law Minister Abdul Haq Khan, who had a meeting on Sunday in the national capital with all the lawyers of the state in Delhi courts, including Fernandes, remained unavailable despite several calls and messages. Sources said that authorities in the J&K law department had been mounting pressure on Fernandes to file a review petition against the SC judgment of December 16, in which the top court had snubbed the J&K High Court for asserting the state's 'sovereignty' and 'sovereign powers'. In its judgment, the apex court bench of Justices Kurian Joseph and Rohinton F Nariman had held: 'It is clear that the state of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. they (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir.' Fernandes, it is understood, was asked to file the petition for reconsideration of the specific observations on the state's 'sovereignty' but the lawyer reportedly pointed out that no valid legal grounds for filing a review petition was made out. Sources added Fernandes said he would file a review against the judgment only if there are special instructions in writing to do so. Fernandes is also said to have argued that his written submissions before the apex court had been duly vetted by the law department and that there were no instructions for him to argue on the issue of state's sovereignty since it has been long settled that J&K is an integral part of India and hence could not claim a 'sovereignty' of its own. The SC judgment had given a handle to Opposition parties in the state and separatists in the Valley to attack the Mehbooba Mufti government. In his response to the verdict, former J&K Chief Minister Omar Abdullah accused Mehbooba government of allowing a 'step-by-step erosion' of Article 370 that confers special status on the state. On December 16, while ruling that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) would apply also to J&K, the SC had called it 'disturbing' that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state. 'It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment,' the bench had said. It also clarified that J&K residents are 'first and foremost' Indian citizens. 'It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India. permanent residents of the state of J&K are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world,' it said.

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