This is why J&K’s Standing Counsel Sunil Fernandes has been sacked

Standing Counsel for the state of Jammu & Kashmir in the Supreme Court Sunil Fernandes has been shown the door, reports Indian Express..Fernandes reportedly rubbed the state government the wrong way after he refused to file a review petition against a Supreme Court judgment on behalf of the state. The report suggests that Fernandes was asked to step down immediately, without being given a reason to do so..Speaking to Bar & Bench, Fernandes refused to comment on his ouster, stating,.“I do not want to have a slanging match with the state government because that would not be befitting of the Standing Counsel’s office.”.As we reported in December last year, the Supreme Court had come down heavily on a judgment of the Jammu & Kashmir High Court holding that the people of the state have “absolute sovereign power”..In that case, a Bench of Justices Kurian Joseph and Rohinton Fali Nariman was deciding the applicability of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) in Jammu & Kashmir..By way of background, a situation arose in the state where there was a possibility that properties being auctioned off under the Act could fall in the hands of non-residents of the state. As is known, the Transfer of Property Act of Jammu & Kashmir prevents non-state subjects from owning property situated in the state..In July 2011, then Chief Minister Omar Abdullah wrote to the Finance Minister of India pointing out this situation, based on which the Centre granted an exemption to the state. Therefore, properties auctioned off under the Act could not be given to outsiders..Then, loan defaulters in the state filed a writ in the Jammu & Kashmir High Court challenging the vires of the SARFAESI Act. The High Court, in a 2015 judgment, struck the Act down, holding that it comes under ‘Administration of Justice’, which is a subject under Entry 11A of the State List..More significantly, the High Court also ruled that the state has “absolute sovereign power” over its affairs. State Bank of India and others appealed against this judgment in the Supreme Court..This is where Fernandes comes in..According to sources, he had written a detailed note to the law department, stating that the High Court’s judgment was flawed. In that note, he submitted that in 2009, the apex court held that SARFAESI is a banking statute and falls under Entry 45 of List 1, which stands extended to J&K by virtue of Article 370 of the Constitution..In fact, the Supreme Court’s judgment states that he submitted,.“Section 13(4) alone incidentally encroaches upon the property rights of permanent residents of the State of Jammu & Kashmir and must be read down so that it will not be permissible under this Section to sell property belonging to a permanent resident of the State to a person who is not a permanent resident of the State. .It was his [Fernandes’] further submission that the proviso added to Rule 8(5) of the SARFAESI Rules must be read along with Section 13(4) of the SARFAESI Act and if so read, the State of Jammu & Kashmir would have no objection to the SARFAESI Act applying to the State of Jammu & Kashmir.”.As regards the “sovereignty” aspect, Fernandes submitted before the Bench that the state does not agree with the High Court, a stance that he made clear in his written submissions, which were approved by the law department..On that aspect, the Bench also went on to note,.“It is thus 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.”.The judgment created a hue and cry in the state, especially among the separatists..Fernandes, who has held the post since September 2015, was asked to file the review petition for reconsideration of the specific observations on the state’s “sovereignty”. Following his refusal to do so, the state government chose to sack him..Which begs the question as to why the law department of the state government would ask its Standing Counsel to take a completely opposite stance in a review petition after making different arguments in the earlier case before the apex court..This is the second time this week a law officer has resigned after being at loggerheads with a state government. Two days ago, Jayanta Mitra, Advocate General of West Bengal, had submitted his resignation citing differences of opinion.