J&K High Court Disciplinary Committee Upholds Maintainability Of Complaint Against Ex-Bar Association President Mian Qayoom, Others

In dismissing the preliminary objections raised by the advocates against the proceedings and the competence of the Disciplinary Committee to hear the complaint, the committee observed,

“.. this Disciplinary committee constituted by the High Court of Jammu & Kashmir and Ladakh acting, through its Full Court decision, in its vested authority and Jurisdiction under the Act of 1961, cannot self erase its own status on the asking of the respondents in the context of their objection in out figure this regard for which the respondents are to an appropriate legal remedy, if any, at their disposal which surely is not and cannot be before this Disciplinary Committee”.

Background:

The controversy stems from a complaint lodged on October 31, 2022, by Achal Sethi, Secretary to the Government, Department of Law, Justice, and Parliamentary Affairs. The complaint alleged that the three advocates, while serving as senior members of the High Court Bar Association, Kashmir, had actively pushed fellow lawyers to embrace anti-national sentiments.

The complaint further elaborated that the trio indulged in secessionist activities, allegedly promoting sentiments against the sovereignty of India and orchestrating hartals (strikes) and bandhs (shutdowns) in the Kashmir region.

The complainant had also pointed to specific instances where the trio reportedly defied the Constitution of India and even submitted memorandums to international organizations, including the UNMOGIP (United Nations Military Observer Group in India and Pakistan), questioning India's legal and constitutional sovereignty over Jammu and Kashmir.

Mian Abdul Qayoom, a well-known figure in the legal fraternity, alongside his co-respondents Nazir Ahmad Ronga and Ghulam Nabi Thoker, raised several preliminary objections contesting the very maintainability of the complaint.

Qayoom's counsel argued that the previous Disciplinary Committee had declined to entertain the same complaint, referring it back to the Chief Justice without taking any action. According to the respondents, this meant the current committee had no authority to proceed. Additionally, they argued that the complaint had not been verified according to the Bar Council of India Rules, rendering it non-cognizable.

Qayoom further asserted that, having been enrolled under the Jammu and Kashmir Legal Practitioners Act, 1977, prior to the Advocates Act, 1961, coming into force in the region, he was not subject to the provisions of the latter. This, according to him, excluded him from the jurisdiction of any disciplinary proceedings initiated under the Advocates Act.

Senior Additional Advocate General (AAG) Mohsin Qadri, representing the complainant, refuted the arguments made by the respondents, emphasizing that the complaint was maintainable under the law. He pointed out that under the Jammu and Kashmir Reorganisation Act, the High Court of Jammu and Kashmir and Ladakh was empowered to act as the State Bar Council in the absence of an elected body. Therefore, the Disciplinary Committee had the jurisdiction to hear the matter, he submitted.

Qadri also stressed that the complaint, while technically flawed due to lack of verification, could be rectified under the provisions of the Bar Council of India Rules. He argued that technical defects should not derail substantive proceedings, especially in a case involving allegations as serious as those raised in this complaint.

Furthermore, he highlighted past judgments, including the case of Altaf Haqqani vs. State of J&K (2015), to support the contention that the High Court, acting as the State Bar Council, could initiate disciplinary proceedings against advocates.

In addressing the issue as to whether the Disciplinary Committee had the authority to deal with and hear the complaint the Committee observed that in the absence of a State Bar Council in Jammu and Kashmir, the High Court, through its Full Court, had the authority to act as the State Bar Council under the Advocates Act.

The Committee dismissed the argument that the previous Disciplinary Committee's refusal to hear the matter invalidated the current proceedings, noting that the earlier decision was based on procedural grounds, not the merits of the complaint.

The Committee further explained that, although the Advocates Act mandates the inclusion of elected members of the Bar Council in disciplinary committees, the unique circumstances in Jammu and Kashmir made it impossible to constitute such a committee.

“In historical view of the fact that the elected Bar Council of Ut of Jammu & Kashmir and of Ladakh, the literal adherence to section-9 of the Act of 1961 is not possible. Once a State Bar Council comprising of the advocates, by the advocates and for the advocates itself is not constituted, it is rendered self-impracticable to constitute a disciplinary committee of the State Bar Council to be comprised of advocates, be of elected ones and co-opted one, in absence of elected State Bar Council”, the committee remarked.

On the issue of Maintainability of the Complaint, the Committee held that the complaint was maintainable, despite the lack of verification. Citing Rule 1 of Chapter I, Part VII of the Bar Council of India Rules, the Committee observed that such defects were procedural and could be rectified. The Committee granted the complainant 30 days to verify the complaint.

While the Committee did not delve into the merits of the allegations, it found that there was a prima facie case for the proceedings to continue. It noted that the Full Court had carefully examined the material placed before it, including FIRs, newspaper clippings, and the Constitution of the Jammu and Kashmir High Court Bar Association, before deciding to refer the matter to the Disciplinary Committee.

In light of these observations, the Disciplinary Committee held that it was competent to proceed in the matter and directed the complainant to rectify the procedural defect of verification within 30 days.

The Committee has listed the matter on September 21 2024 for further proceedings.

Case: Secretary to Govt. Department of Law, Justice and Parliamentary Affairs Vs Mian Abdul Qayoom, Nazir Ahmad Ronga and Ghulam Nabi Thoker alias Shaheen, Advocates

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