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Above: Following abrogation of Article 370, lawyers in Jammu have launched an indefinite strike/Photo: UNI

With Jammu & Kashmir becoming a Union Territory, teething problems are evident. On the first day, the Centre transferred powers for land registration from the judiciary to the executive, angering the powerful lawyers’ community in Jammu which has gone on strike. Other issues have also upset the legal community.

By Pushp Saraf

Despite its abrogation, Article 370 of the Constitution continues to haunt Jammu and Kashmir as it undergoes unprecedented transition from a full-fledged state to a Union Territory beginning October 31. The nuts and bolts of the new administrative dispensation are being tightened to bring it on a par with the rest of the country in the name of one nation, one constitution. There are teething problems, and at least one of these, the registration of immovable property, assumed a serious dimension on the first day after the birth of the new UT; it has affected the UT of Ladakh as well which is the other administrative entity of the bifurcated state.

Like elsewhere in the country, the government has transferred powers regarding land registration in the UT of J&K from the judiciary to the executive. This has angered the lawyers’ community in the Jammu region which has been on strike since November 1, demanding the restoration of status quo. At the same time, lawyers are opposing the proposed—actually nearly-finalised—shifting of the High Court premises by constructing a new complex in a forest reserve described as the “only lung” of historical Jammu city.

The powerful Jammu-based Jammu and Kashmir High Court Bar Association (JKHCBAJ) has taken the decision to “abstain from work” for an “indefinite period” at a requisitioned general house meeting which took “serious note of both the issues” and unanimously criticised the government’s moves as being  “neither in public interest nor in the interest of advocates”.

J&K’s new incarnation is thus marked by lawyers stopping work all over. Advocates in the Kashmir Valley, the other major constituent of the UT, have been staying away from courts in protest against the detention of the Srinagar-based J&K High Court Bar Association president, Mian Abdul Qayum, and other lawyers, along with several mainstream and separatist leaders on the eve of August 5, when the Union government reduced Article 370 that had till then protected the state’s special status to just a museum piece and bifurcated J&K into two UTs.

Incidentally, the lawyers in the UT of Ladakh, comprising Leh and Kargil districts, too are agitated over losing their role in land registration. However, they have not gone beyond one day’s token strike as surprisingly, inquiries reveal, they are said to have got some sort of assurance that a way out would be found to meet their grievances.

The present controversy is the outcome of the abrogation for all practical purposes of Article 370. As a result, the J&K Registration Act, under which the judiciary enjoyed primacy in registration matters, has become redundant, giving way to the Central Registration Act, 1908 (both Acts are identical, except that under the now-defunct J&K law the practice of the judiciary carrying out the registration of deeds instituted by Maharaja Hari Singh in 1921 under the relevant law, was continued. A bid by the government to withdraw the judiciary from the arena in 2011 was foiled by the Jammu lawyers resorting to a strike and mustering support from the Kashmir Valley as well).

No lawyer is mentioning Article 370 in the context of the change of authority. It has not been debated in the general house either. Yet, it has become an issue because of the manner in which it has been vigorously defended in the official release of the JKHCBAJ while announcing the collective decision to go on strike. Incidentally, Abhinav Sharma, president of the association, is also a spokesperson of the state BJP.

According to the release: “The J&K High Court Bar Association, Jammu, made it clear that both the aforesaid demands have nothing to do with the revocation and abrogation of Article 370 of the Constitution of India, as the shifting of the High Court complex has nothing to do with Article 370, and the proposal was moved before the revocation of Article 370, whereas the decision of the government to divest the powers of the registration of documents from judicial officers and conferring the same upon the revenue authorities has also nothing to do with the revocation of Article 370.”

This has invited a sharp retort from BS Salathia, a senior advocate and three-time president of the bar association in the past who is a popular figure in J&K and was present at the general house meeting in support of both the demands. He questioned the reasons for referring to Article 370 in the release when there was no discussion on support or opposition to it. He suspects mischief in it: “There was no discussion or resolve of the members either to support or oppose the revocation of Article 370 of the Constitution of India, but it mischievously finds mention in the official press release—with whose approval and why? In my humble understanding, it is a gameplan to please the political bosses and use us for their own vested political interests—not in good taste. Please, be kind to us, as our elected leaders, we shall make every possible sacrifice to achieve the goal and uphold the prestige/glory of the Association. Read the relevant portion. Can any member present in the meeting justify (it)?”

Talking to India Legal, Salathia said there was no discussion at all in the meeting and not even the member (senior lawyer HC Jalmeria) who had initiated the process for requisitioning it was called upon to speak. “Sensing the mood of the members the president unilaterally announced the decision to observe an indefinite strike,” he stated. When contacted, Jalmeria said that 518 members were signatories to the requisition move underlining their concern about the issues.

The battle has spilled over to the social media with those backing the revocation of Article 370 defending the release as a “very sincere move” even while conceding that there was no discussion on it in the meeting.

In a television debate, Sharma said though he had dual responsibilities, as bar association chief and the BJP spokesman, for him the lawyers’ interests reigned supreme.

Salathia and Sharma agreed on at least one point, that the transfer of power to the executive would deprive a large number of lawyers of their livelihood given the already limited work opportunities available to them in Jammu. The former said that about 3,000 lawyers would be rendered jobless all over the UT if the original practice was not restored.

According to him the government would have been careful had its attention been drawn to two facts: (1) a division bench consisting of then Chief Justice N Paul Vasanthakumar and Justice Bansi Lal Bhat had on February 16, 2016, quashed a government order transferring forest land for non-forestry purposes, observing that it was “fraught with serious consequences to ecology and environment besides resulting in irreversible damage to the ecosystem, health of the local populace and flora and fauna,” and (2) a three-judge bench comprising Justices Virender Singh, JP Singh and Hasnain Massoodi had on December 23, 2011, stayed the transfer of registration work to the executive following a three-week strike by lawyers. Both the lawyers also share the view that since the government had the option under the central Act to appoint an authority of its choice it could have persisted with the earlier arrangement.

Unmindful, however, the government seems to be going ahead with its new plans. Quick clearances have been given for construction of the new High Court complex in Raika and Bahu villages of Jammu district—it is a forested area. Moreover, the revenue department has mounted a publicity campaign explaining the “advantages of a separate department of registration” like making “the process similar to the rest of the country”, “substantial reduction in waiting time for public”, “all work under single roof”, “no payment of court fee in addition to stamp duty” and enhanced transparency and accountability.

Pawan Kotwal, financial commissioner, revenue, has been made inspector general of registration in addition to his own duties.

Other functionaries are being appointed. The question at the time of writing is: who will blink first—lawyers or the government? Clearly Article 370 has not died in J&K.

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