We Have Strong Case In Supreme Court Against BJP’s Assault On Constitution: Justice Hasnain Masoodi

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NC MP, Retired Justice Hasnain Masoodi has filed the petition in Supreme Court against the move of BJP of abrogating Article 370. In a detailed conversation with Asem Mohiuddin, editor The Legitimate he says the move will only change complexion and chemistry of our struggle for autonomy’. Here are the excerpts.

 I would like to start with certain things that are evolving after the removal of article 370 and 35A by the central Govt. Do you agree that it (Article 370) would be the history now?

HM: No, I don’t think so; it will only change our focus now. We were demanding autonomy and restoration of pre 1953 position in Jammu and Kashmir. We will fight tooth and nail to get the Article 370 back. The petitions challenging the move by BJP already stands submitted in Supreme Court by us with many others. So I don’t agree it is part of our history now. We have voice of disapproval over this decision in all the three regions. Hereafter, it only will change the complexion and chemistry of struggle for our long pending demand -autonomy.

BJP says due to the presence of article 370 it was only the set privileged groups taking benefits in Jammu and Kashmir. With its abrogation, BJP claims it will destroy the status quo and the existing powerful lobbies in political dispensation and invoke accountability and transparency in system with larger participation of people?

HM: They want to market what is unconstitutional and what is betrayal. How did Article 370 stand in the way of development, aren’t we more developed than the 15 other states in mainland. Our state has better human indicators than even Gujarat and many others ‘beemaru states like ‘UP, Bihar and Oddisa.

It is also the fact that we have corruption, nepotism and irregularities here and BJP says presence of Article 370 was the reason for all this? 

HM: See this narrative is being created to discredit the political forces in Jammu and Kashmir so that they (BJP) can plant their own saplings. The reality is that the corruption is a global concern and this menace is prevalent everywhere in the third world countries. Nevertheless, we won’t justify corruption in any form.  Even if we go by the records of Transparency International, you will find we are much better than many other states in India. We don’t have scandals like mining in Karnataka, scandals like in Madhya Pradesh. I mean even political houses in Jammu and Kashmir don’t own resources, enterprises, industries like in other parts of country. Can you cite any example where you can say that this group of industries is owned by Mr. A and that group of industries is owned by Mr. B in Kashmir who is associated with the politics?

 Was BJP right in saying that Article 370 promoted separatism and secessionism in Kashmir? In fact they marketed it across the country?

HM: Not at all, rather Article 370 and this identity helped people to rein away people from other side. It helped to bring people to the mainstream. It had positive dimensions and people in Kashmir used it to sell on other side and tell them we are part of a country that respects our identity, our culture, our language, our history and off course constitutional autonomy. Whatever is being marketed is all lie.

Was this Article anti women? Some petitions in Supreme Court were filed on same grounds?

 HM: No, not at all. Didn’t we have a Women Development Corporation in our state?  Didn’t we have a Women’s Commission here? Even our constitution advocated women’s rights way back in 1957. They are spreading just misinformation about our constitution without going through it. Our constitution recognized Right to Happy Childhood, when they had no idea in mainland about it. Even the concept was not developed in entire South Asia what is Right to Happy Childhood when it was in Jammu and Kashmir constitution.  We had a juvenile justice law, we had RTI in state when it was nowhere in mainland.  Our women are more emancipated and are present in every facet of life contributing to the social, political and economic sectors.

When a Kashmiri woman was choosing her life partner outside state she was losing her property rights. BJP said it was discrimination and gender inequality?

HM: See that is fallout of our state subject law, and that is not right.  They again sell lies. Woman who marries outside doesn’t lose her status, doesn’t lose her property rights, she can inherit it. The only dispute is about her children and husband whether they can inherit her property. Lifelong, any woman who marries outside state can maintain and retain her property and PRC rights. Whether her descendants could inherit property could have been corrected and rectified. There was no need to go for a massive assault. They could have made amendments in the state subject law. Even we were ready to make the amendments in the state subject law, that wouldn’t have required to get rid of entire Article 35A.  Article 35A is not discriminatory; it is part of part 3 of the Indian constitution.

You say that you were ready to go for certain amendments with regard to PRC laws.  In fact I have heard same thing from Dr. Farooq Abdullah in an interview, just a week before Article 370 was abrogated. But same thing happened in 1983 when Sheikh Mohammad Abdullah assured the West Pakistan Refugees PRC rights. But nothing later happened. Isn’t it because of these callous statements or poor execution of promises from political class we are in this chaotic situation right now?

 HM: No, there are fundamental differences in two cases. We have two sets of refugees here, one who has come from the other side of Kashmir held by Pakistan, and they have all the sociopolitical rights. The other set of refugees are who came from Indian subcontinent, I mean that was part of the British India, and there were some legal issues related to their sociopolitical rights here. We still gave them domicile certificate and they had every right here even including vote for parliament.

If you think that there were technical and legal issues with the WPR then why your government led by Sheikh Mohammad Abdullah promised them PRC in 1983. Was it a political gimmick?

HM: Why don’t you understand that we have given them property rights?

But they could not get jobs and education from local government?

HM: Because that was primary responsibility of the country. Despite legal issues still we gave them lots of rights in our state. Even differences over their PRC rights should not have let BJP to go for a massive assault of scrapping Article 370 of the constitution and deprive the state of Jammu and Kashmir of its identity.

WPR issues were evolving matters and today they have been granted the permission for the land rights.  Such evolving matters do not warrant any misadventure with the constitutional provisions. You see the (National Register for Citizens) NRC, how long it took BJP for its implementation. When you pursue the matters of people, you need to convince people but not trample down the institutions to attain the goal or objectives.  Even recently the previous government offered them Domicile Certificate and that was a step ahead.

 I reiterate, addressing their demands by local governments and working on certain what BJP call constitutional anomalies may have secured the Article 370?  

HM: No, You mean you should have lost everything. It was an evolving concept and every passing year their (WPR) rights were increased, they were given more and more participation. We gave them land and then the order was passed to allow them to transfer it on their will.  They are 50000 people and you don’t denude 1.25 crore people of their rights.

By October 31 we will be formally in a Union Territory. Are you going to seek the stay on order until the court judgment comes?

HM: How can you say like that? We have questioned the constitutionality of this whole exercise, we say it is not in tone with constitution and it doesn’t satisfy the constitutional requirements and SC has prima facie found merit in whatever we say on our grounds.  That is why it has issued notice to central government. It has decided to admit it for hearing; and even directed that it should be referred to larger constitutional bench. So, Supreme Court finds a reason to examine its validity.

You have served as Justice in Jammu and Kashmir High Court and have passed some crucial judgment with regard to Article 370. The union Home Minister Amit Shah also pointed towards your judgment in Parliament. What was that Judgment?

 HM: I have said that Jammu Kashmir was for all practical purposes an independent country till 15 August 1947, because it was free from treaty obligations. It negotiated the terms of accession with the Union of India. The terms were negotiated by a Hindu Maharaja and his PM was also Hindu. They had an option to go and join in the Union of India like other states did, but they didn’t. They worked on terms and conditions with GoI.  So I said in the judgment that Article 370 is the permanent feature of the J&K constitution, because it reflects the terms of accession, and second it was followed by Delhi agreement, and it took the matter forward.

Delhi agreement was not a private agreement between the two people as some people say. It was an agreement between the two sovereign countries, and it was introduced in Indian Parliament by the Prime Minister (Jawaharlal Nehru), and parliament had a discussion on it, then it was approved by the Parliament.

Delhi agreement had different facets, provisions and dimensions, for example; we were not the citizens of India till 1952 (Delhi agreement), other jurisdictions were not extended to us. Under this agreement both  (Jammu Kashmir State) and GoI mutually agreed on it.

  You mean to say that we integrated with India in 1952?

HM: We didn’t. We only discussed the terms and conditions and took the accession further via Delhi agreement and Article 35A was the result of same agreement. Under these conditions we agreed to become citizens of India and Delhi also agreed that we can retain our state subject rights under the Delhi agreement after it was approved by the President of India who issued an order and included Article 35A in Indian constitution. There were two aspects of this agreement: one was we accept the citizenship of India, which was not accepted till that time and they in turn agreed that you can retain state subject.

I have come across your petition of 63 pages, there are certain grounds where you can fight strongly, but I have seen that PM and even the HM are saying that it was temporary provision, what actually they mean of this temporary?

HM: Article 370 is included in part 21 of the Indian constitution same way the Article 371 is and this part is titled as temporary transitional and special provisions. After this abrogation of Article 370 the union government assures these northeastern states that they will not touch Article 371 as that is different and cannot be amended. But the reality is both are same. They are spreading this misinformation. When 370 was discussed on 17 October 1949 in the constituent assembly, what I said in parliament that it was with agreement, three was not a single amendment to it, there was not a single disagreement. What they now advocate that it was some private affair between the two individuals. Only one amendment was proposed and that was withdrawn by Mr. Tyagi if I remember the name properly. Now the question is why it was put in temporary. On 17th October 1949, India was committed to decide the fate of Jammu and Kashmir by a referendum; it was party to the UN Security Council resolutions. So at that time accession itself was temporary, so, how could Article 370 at that point of time be permanent. Nobody knew that time where Jammu and Kashmir will go.

You are associated with the largest regional pro India political dispensation, National Conference; you have to accept the verdict of Supreme Court even if it doesn’t favor you? 

HM: We have just challenged the manner in which this constitutional misadventure took place. In first place the constitutional misadventure by BJP is not accepted by people in all the three regions.  There shall be no unilateral breach of pledges between Delhi and Jammu and Kashmir. Then it has political dimensions and it is the question of aspirations, identity, language and our territorial integrity, there are lot of many questions involved.  What is before SC is only the mode and method of decision taken by BJP government?

You could not amend Article 370 and divide the state into two parts without the consent of local elected government or Assembly. You cannot change the boundaries without the concurrence of the state legislature.

  What is your future strategy?

HM: We will strive and challenge the abrogation of article 370 tooth and nail. Future strategy will be decided by the top leadership of party once they are out from detention. But one thing is firm that we are committed to the resolution of Kashmir dispute, its internal dimensions’ by seeking the restoration of pre 1953 status.  As of now we only challenge the recent decision of centre of scrapping Article 370. They have committed error and we want them to rectify it.

  Do you think it can happen when BJP is at centre?

HM: I think they should not make a kind of ego out of it. Even I said in the parliament and pointed towards the Union Law Minister and asked him can it be done.  Can you seek the concurrence of your own self, can you assume more than one role, you being a plaintiff, a lawyer, a defendant and a judge. See again questions are being raised over the extension of presidential rule in Jammu and Kashmir. Here Governor Rule was on 19th December, President Rule should have been extended on 19th June, and instead they did it in the first week of July. , So, that gap puts a question mark on the legitimacy of the presidential rule. Second is that, you don’t seek views, you cannot have multiple roles, you cannot consult yourself, seek your own concurrence. Again, one more point is that had it been done in the governor’s rule, you may have had an argument. But it was done at a time when governor rule was over, that means essentially government was run by the Union cabinet, so Union Government cannot ask itself “should we do it”. Again 356 gives you the right to make a law in emergency matters, you cannot breach constitution that is not an emergency. You have to put law before the state legislature where is that legislature.  You take away the state and where is Article 356. There is more than one infirmity in BJP’s move which is outrageous.

  BJP has done what it wanted to do. Your party threatened to resign earlier but didn’t?

HM: I contested the elections on a mandate of a particular party, and that party has to decide about our political strategy in future. But the shocking thing is that you have been telling us all the time that this party has played a pivotal role in shaping up the relationship of Jammu Kashmir with the Union of India, and its leadership is behind bars now. Even previous chief minister (Mehbooba Mufti) is behind the bars. Unless and until we sit together we can’t make things out. Even if we resign we shall feel the move is in the interests of people of Jammu and Kashmir.  .

  Will you (National Conference) be part of any electoral politics in future?

HM: It is a premature question, we don’t talk about it, our immediate goal is that the decision taken on August 5 should be withdrawn and later our struggle to fight for autonomy will continue.


 For now the reality is that we in Jammu and Kashmir are reduced to union territory from statehood with the split of Ladakh region. How do you see it?

HM: Whatever has been done, it is not in the interests of the Country. It will push the state towards the uncertainty and chaos, unsettle everything. That is our worry, this is not in the interests of J&K, I mean they (GoI) have not done good service to the people of India.

But people in India are backing Modi government on scrapping Article 370?

HM: They may agree for some time. And they will soon realize that this was not the right decision. It is ethically and morally wrong, you have made a pledge, you are expected to respect that pledge. You have made a promise, and you are expected to respect it because that is your ethos and history ‘satya’. It is your fundamental value.

Q18: You say pledge but they (BJP) say Nehru’s blunders?

HM: They were not around in 1947 when this process happened.  It was Nehru who had got associated with the freedom struggle here and built up those bonds that he could influence decisions. Anyways, it is between Congress and BJP. With regard to Kashmir, we didn’t merge with India, because our Maharaja didn’t adopt the entire constitution on 25th November 1949, whereas Rajpramukhs of all other princely states execute the instrument of merger, they merge and admitted, they accepted constitution in entirety unlike our Maharaja.

 Was instrument of accession a one standard document for all?

There were two instruments; Instrument of merger and instrument of accession.  That was once you adopt the constitution that means you merge with the country. Our ruler stick to some terms and conditions and asked to get these reflected in the article of the constitution while others didn’t do that, they surrendered, and that is the difference.  Maharaja didn’t adopt the constitution of India in its entirety where as other Rajpramukhs did.

That is why in our case we don’t have a state list where as in other states there is a state list, Concurrence list and Union list. But here is only Union and Concurrence list, whatever is not in central list belongs to us. And whatever is not in the state list belongs to Centre.

What is your hope from the SC, because all eyes are set on it?

HM: See, we are confident that we have a rock solid case. We are encouraged the way SC has issued notice to Union government and sought its response. In other words the SC admitted it for hearing even directed that it should be referred to larger constitutional bench, so we have a very strong case.  What has been done is palpably unconstitutional, that is why we went to SC along with many others including PC Chairman Sajad Gani Lone, Shah Faesal and Radha Kumar.

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