‘Jammu, Kashmir, Ladakh, This State Is Not An Artificial Entity’

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Justice Hasnain Masoodi, the former judge whom people elected to Lok Sabha against Mehbooba Mufti, tell Saima Bhat he will be the voice of Kashmir in Parliament

Justice Hasnain Masoodi

KASHMIR LIFE (KL): You have been elected to Parliament, what does it mean?

JUSTICE HASNAIN MASOODI (HM): It means a lot. It means the public viewpoint regarding important matters that concern us, will be articulated in a forum at the national level. It also means to deal with challenges that I was told to project during my election campaign.

KL: Why PDP lost this election in the south which is considered to be their bastion?

HM: It was a myth created by manipulating public opinion. Earlier they mobilised the public opinion in their favour on false promises. In south Kashmir, they promised to keep a particular party at bay. But after they won, they went diagonally opposite to that promise. Obviously, it was fake support that fell apart.

This time people couldn’t be fooled as they had PDP’s report card in front of them. They knew they were betrayed the last time.

When Mehbooba Ji decided to contest, I knew she has made my job easier. It was easy to tell people what she had done as everything was fresh in people’s mind. Had it been ten years since she presided over as the CM, then it would have been tough to remind people what she had done.

It was her immediate past when she had presided over the government of death and destruction. South Kashmir was the worst sufferer and obviously, the worst reaction had to come from the South for her decision to join hands with RSS. It was inappropriate for them to think that she will win. I could hammer down my viewpoint and people were receptive.

I had ready illustrations, ready examples like 2000 kids who partially or fully lost their eyesight, 91000 houses attacked during nocturnal searches, houses that are located in the villages of Bijbehara, Shopian, and Pulwama.

Though it looked tough only requirement was there must be someone who does not have baggage. I did not have any.

I have worked in public life after laying down my robes. I kept writing about Kashmir issues, identity, autonomy, integrity, issues, excesses and steps taken by the previous government to demolish autonomy like the introduction of GST, NEET, SARFESI, food safety act and what not. People believed in me, they lend their ears to me that is how I was able to script the success.

KL: There were worst times that Kashmiris have gone through, for instance in 2008, 2009 and 2010. But isn’t public memory short?

HM: Kashmiris have gone through such bad times since the last 70 years. The worst part of it has been in 2010 or earlier when things were not good. There were excesses, disturbances, street demonstrations, but then there was a person, who headed the government and he apologized.

But recently there was an era when arrogance was coupled with atrocities and she used to say you deserve more.

KL: Article 370 and Article 35-A are continuously in the debate. What changes have been done to special status and who is responsible?

HM: Most of the people think Article 370 is now an empty shell, but that is not the case. It is like a wall which blocks all Central laws. These laws cannot be applied to Jammu and Kashmir unless an application is applied following the mechanism in the Article itself.

Article 370 is like a wall with a small door, the door which can be opened by the elected members of the Assembly. In 1977, the 42nd amendment was blocked by Sheikh Abdullah and it does not apply to us.

In 1953, there was an operation that had an impact on our political system when democratically elected Prime Minister of the State was arrested. Thereafter we see 1953 was an event wilfully done to pave way for the erosion of this Article. After that, the 1954 presidential order that is ominous order, applies to everything in the constitution of Jammu and Kashmir and thereafter, we saw more amendment orders designed to be applied to Jammu and Kashmir. All the governments from 1954 up to 1975 have allowed this autonomy to be eroded. We had a permanent system here that was done away with. We did not have an income tax, it was the responsibility of State that how much and when they want to tax but that was done away with.

We had a president and a Prime Minister that was done away with by our governments in 1966.

Then from 1975 to 2014, we saw a slowdown of this erosion as the state government was more responsive for the concerns of people and autonomy. But after 2014, we saw a massive assault on our autonomy again, more laws were made like GST, the fiscal autonomy is one of the important dimensions of our political autonomy, both are intertwined.

We cannot have political sovereignty without financial sovereignty and in 2014, by the application of GST, we surrendered it.

KL: Can Article 370 be abrogated?

HM: Article 370 is a permanent feature of the Constitution of India. It cannot be abrogated, modified or changed that is the law laid down and that is the constitutional position but what happens is the Central government, without respecting the legal procedure took a route that is not legal.

In the case of 73rd and 103rd amendment or during the introduction of Article 249 they did not follow that route.

The route is, if any provision is to be applied that is not applicable till date, the state government is asked to give its consent and the concurrence. The consent is to be given where the provision to be applied or not relates to the subjects on which Maharaja made accession (defence, foreign affairs and communication).

If there is a law or a provision that relates to these three areas only consent is required, because they say since the Maharaja has made accession on these three terms, so it is taken they have already concurrence.

But when it relates to something outside these three subjects then concurrence is needed, which means state government can approve or deny it as the state government has more power. Why should we insist on concurrence? It means if we allow any constitutional provision in Jammu and Kashmir that is not applicable till date that means we surrender a segment of our sovereignty.

That part again comes under the eclipse.

Only the elected government has the power to accept or deny it on the behalf of people but what happens is President asks Governor to give his concurrence when legally he cannot give it because he does not represent the people. He is there as an agent of the Central government and President cannot ask his own agent to give concurrence. When 73rd and 103rd amendments were introduced recently, it was without a constitutional mandate. It was unconstitutional.

The Article-35A has come in place as a part of Delhi Agreement in 1952 between New Delhi and the state of Jammu and Kashmir through their elected representatives.

It was an agreement that they entered into after thorough negotiations, which later was placed before Parliament and the Constituent Assembly of the State.

Somehow we have not been able to focus on this part of it. Both the Prime Ministers had a tough time to make other members of the government ratify it. The exclusive provisions of this Agreement were we will have the exclusive power to decide about our state subject laws and after that accordingly, the State had to make amendment in our 1939 constitution.

Till 1939 there was no Sadr-e-Riyasat but we had a Maharaja and Yuvraj.

Maharaja was the ruler and he was assisted by his council of ministers. The 1952 Agreement was kind of a Treaty. They now say it was introduced by President, and Parliament was kept away but it was parliament that endorsed and adopted it.

KL: What is the net difference between BJP and Congress when it comes to Kashmir?

HM: I think the policies remain the same.

BJP is more open about its agenda. They don’t make any secrets about it. They are openly against Article 370, our identity.

They want integration and are against everything that is close to our heart.

Congress does it without having it in their manifesto. Who arrested our elected Prime Minister in 1953?

That paved a way for the erosion of our autonomy; they changed our Sadr-e-Riyasat and Prime Minister’s position and then took a series of steps to demolish everything brick-by-brick. It was either Congress or its local collaborators.

KL: Will you trifurcation of the state?

HM: We are for the integrity of the State. Some people say this State started after Amritsar Treaty in 1846, but actually, we have been together all the time. We have our historical roots together. We had Rinchen Shah from Ladakh and Kota Rani from Jammu who ruled us, and Budshah had both his wives from Jammu, who were sisters of Maharaja in Jammu. One of his sons died while fighting for one of his maternal uncles in Jammu. Our generation is not made acquainted with these facts, we have always been together Jammu, Kashmir, Ladakh, which is not an artificial entity.

Justice Hasnain Masoodi

Justice Hasnain Masoodi (KL Image)

Our economies, politics are all intertwined. We cannot be in favour of trifurcation; we say that no region can take advantage of another region.

Every region should get a fair share in resources and we should empower all the three regions. For the time being, nothing is possible unless we have an elected government. Our constitution has its own peculiar features.

All the States have three lists, concurrent, union and state lists, but we have only two: concurrent and union lists.

KL: How do you foresee Kashmir in Modi’s second term?

HM: To be very honest I am hoping against hope. Maybe if he thinks on the terms where people have placed him then he should use this mandate to bring an era of peace in South Asia. Let us hope and pray for that. He can also use this mandate for being autocratic, disrespect law or Constitution with regard to the Kashmir. He has an opportunity where he can script a place in history for himself by bringing peace, by solving Kashmir issue after going for tripartite talks with the people of Kashmir and government of Pakistan.

It is not economically wise for India to keep this pot boiling. Every year they spend around billions on managing protests, protecting Siachin glacier and other things. The money spent here on temporary management can be utilised in health and education. It is a total misallocation of resources and precious resources. That is what I hope but at the same time, I am apprehensive.

KL: How do you foresee the tenure of the new Home Minister?

HM: People have become very apprehensive about Amit Shah, as he has been very articulate about his viewpoint.

Of late he has said about the settlements as well but every government has to understand that they cannot live in constant conf lict or war with 12.5 million people by using force and by arm twisting. I hope he starts a new era of peace, reconciliation, reach-out and prosperity.

KL: Is there any possibility of having NC and BJP together in the state?

HM: When NC was there it was not BJP but more than 20 parties together. It was not BJP of Modi and Amit Shah. That was of Vajpayee, who was respected everywhere. But at the time of PDP, it had already made that switch over; Vajpayee’s era was over, it was a new era.

I don’t see NC and BJP together except for they are at Centre and NC in State after the Assembly elections because we have two different agendas, manifestoes, viewpoints.

We are for total autonomy, resolution of Kashmir issue through tripartite dialogue. We don’t have any chance of being together in the State.

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