Neither Abrogated Nor Removed: The Ploy Behind Centre’s Article 370 Move

On August 22, veteran journalist Karan Thapar sat with NALSAR law university vice-chancellor Faizan Mustafa, to discuss the constitutional legerdemain in Kashmir and the consequences, both foreseen and unforeseen, that has and will follow. Below is the full text of the interview. A video of the discussion is available here.

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Karan Thapar: Hello and welcome to a special interview for The Wire.in.

Even almost three weeks after government acted, there is a lack of clarity about what exactly has happened to Article 370. Has it been abrogated or has it been deoperationalised? Even more importantly, there is lack of clarity about what powers Delhi now exercises over Jammu and Kashmir. Have they been enhanced or paradoxically have they been in fact in some critical areas diminished? The answer to these questions are complicated and difficult and sometimes even hard to follow because they involve understanding the intricacies of constitution.  But it is critical we come to grips with them  because only then we can understand what happened in Kashmir. Most importantly what  impact it has on our democracy? With me to shed light on this critical issues is a gentleman who’s taught law for 25 years, he is perhaps one of the greatest exponents of the Indian constitution. He is presently the vice-chancellor of the NALSAR University of Law, Professor Faizan Mustafa. Professor Mustafa, let us start with Article 370 it’s not been abrogated as many people believe, but its provisions have been used to deoperationalise Article 370 itself. Now it is a complicated two or three step procedure. So can you start by explaining to the audience how exactly this is being done?

Faizan Mustafa: Article 370 permits President of India to make modifications and exceptions in other Articles while they are made applicable to Jammu and Kashmir.  So they used   this power to insert a clause in Article 367 and change the meaning of some of the crucial words which have been used in Article 370. One is ‘constituent assembly of Jammu and Kashmir’ which they said will now mean Legislative Assembly, the other is ‘Government of State’ which will now mean Governor acting on the advice of Council of Ministers. So basically the text of 370 largely remains the same but when we will interpret them, we will use 367 to arrive at an entirely different interpretation.

 Karan Thapar: And because they reinterpreted the word constituent assembly means legislative assembly when they apply that interpretation back to 370, it means they can deoperationalise Article 370 not with the concurrence of the Constituent Assembly but now with the concurrence of the Legislative Assembly and this reinterpretation has permitted them to deoperationalise Article 370.

Faizan Mustafa: It was a very innovative way. I think we must compliment the Government for finding a way to deoperationalise 370 without deleting 370 from the constitution.

Karan Thapar: I come to this innovation that they have done but the first point is that you agree that Article 370 has not been abrogated and it remains on the statute.

Faizan Mustafa:  Very much.

Karan Thapar: it has simply been deoperationalised.

Faizan Mustafa: Correct.

Karan Thapar: As a result of what you called innovative reinterpretation.

Faizan Mustafa: Yes.

Karan Thapar: Let’s come to this innovative interpretation.  As you pointed out, Article 370 permits the Central government to enforce other Articles of the constitution in Jammu and Kashmir with modification or amendments. Did the framers of the constitution ever intend that this power to modify or amend could be used to modify 370 itself?

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Faizan Mustafa: No, because words used in 370 are ‘other provisions.’ So there are provisions mentioned in Article 370 which are Article 1 and 238. 238 does not exist anymore so it is only Article 1.  So they cannot use it to change 370 itself.

Karan Thapar: So the very phraseology of 370 makes it clear that the power of 370 to amend exists to amend ‘other provisions’ not to amend itself

Faizan Mustafa: Because the expression used is ‘other provisions’ which the President of India with such modifications and exceptions would like to apply to Jammu and Kashmir

Karan Thapar: So then this attempt to use 370 to modify or amend 370 itself  is actually a form of constitutional  slight of hand

Faizan Mustafa: Yes, you can say that.

Karan Thapar: One other thing. In 1973 in the Keshav Nand Bharati judgement, the Supreme Court rules that the Parliament cannot amend what was called the ‘basic structure’ of the constitution. This was a limit placed on Parliament’s capacity   and power to amend the Constitution.  Does a similar statute of limitation exist about the extent to which 370 can be used to amend the constitution?

Faizan Mustafa: Whatever  Parliament can do will be much more than what President can do. President is executive, Parliament is legislature. If the limitation applies on Parliament- how can President not be bound by basic structure?

Karan Thapar: So in their words in addition to the slight  of hand that we discussed, there is also a statute of limitations which determines the extent to which you can use 370 and the government has ignored that as well?

Faizan Mustafa: I would say at least the implied limitation should apply because 370 is not just an ordinary Article of the Constitution.  It is an outcome of agreement between two sovereign states.

Karan Thapar: Now clearly the government decision to use Article 370 to amend Article 370 will be challenged in the Supreme Court. As one of the India’s leading exponent of law- do you believe that there is a chance that the Supreme Court could strike this down as unconstitutional.

Faizan Mustafa: No one can predict what will be the outcome of the legal challenge in Supreme Court, but our experience has been that when you have governments with massive majorities, courts stay away from political questions. When there are coalition governments, they assert their power little more and I have a feeling that when it comes to their own powers, they jealously guard them.  But when it comes to constitution, citizen’s liberties,   same kind of anxiety is not demonstrated by the courts.  So at best the court will refer this question to the constitution bench and the matter will be decided after 2-3 years, by that time it will become redundant.

Karan Thapar: You are saying a very interesting thing and I am repeating it for the audience – you believe that in major important political decisions taken by majority governments, courts are reluctant to overturn them.  And therefore what the court will do is- refer this matter to the constitution bench that will take 3-4 years to set up because there is a long waiting list of subjects waiting for constitution benches to be set up and by that time this will be a fiat accompli and therefore it will be accepted regardless of what verdict the court comes out with.

Faizan Mustafa: Yes.  Because court is not showing any anxiety even to issue notices. So many petitions were put up before the court.  Court is talking of defects. You know in Public Interest Litigations, even a postcard has been treated as a petition.

Karan Thapar: So a very interesting conclusion is what we come to, in this case something a slight of hand something that clearly was not intended by the framers of our constitution will end up becoming a fait accompli because the court will dilli dally setup a constitution bench which won’t give its verdict in two three or four years and by then it would be a fait accompli.  So lack of diligence on the part of the Court will make sure this just happens.

Faizan Mustafa: We cannot say diligence because it is a constitutional question, they will say this question requires 5 Judges.

Karan Thapar: Lack of Urgency.

Faizan Mustafa: Ideally, they should show some urgency because they must ideally pronounce on this before October.

Karan Thapar: And that looks very unlikely

Faizan Mustafa: To me it looks unlikely.

Karan Thapar: Lets come  to a second critical aspect of what happened- the manner in which the Central Government has split Jammu and Kashmir into two and then demoted both parts into Union Territories. Ordinarily, the constitution requires that this can only happen after first seeking the opinion of the State Assembly. As you know the State Assembly doesn’t exist, the Government has said that under President’s rule, the powers of the State Assembly stand transferred to Parliament and as a result the Government can consult Parliament rather than have to consult the State Assembly.  Do you agree with that line of logic?

Faizan Mustafa: Not entirely because you have to look at the timeline.  The timeline is that the Presidential order is coming on 5^th  of August.  5^th of August in Rajya Sabha, this bill is introduced and passed. Now before 5th of August, you had Article 3(1) one exception created for Jammu and Kashmir which said ‘concurrence’ is needed of the Legislative Assembly. Not ‘ascertainment of views’.  So when was before 5th of August, this bill referred to the Legislative Assembly? Two, the expression used say after 5th August, it becomes an ordinary State and like any other State, views of the Legislative Assembly are to be a ascertained.  Now ‘views’ are not ‘powers.’ There is a distinction between views and powers. Parliament can exercise the ‘power’ on behalf of the Legislative Assembly.  But here public expression of ‘views’ of peoples representatives of that state must come to public fore.

Karan Thapar: And that hasn’t happened.

Faizan Mustafa: That hasn’t happened.

Karan Thapar: You are  making a very important distinction- under President’s rule Parliament can exercise the powers of a Legislative Assembly but Parliament cannot express the views of the Legislative Assembly.  And since the constitution requires before you change the borders or the status of a state that you ascertain the views of the Assembly, those views have not been ascertained and what the government claims as a process for doing so is therefore a second slight of hand?

Faizan Mustafa: Definitely. Just recall about Telangana.  The bill was referred in 2013 December to Andhra Assembly.  84 members in Assembly, 54 members in Council participated.  9000 amendment bills were moved.  They rejected it.  Still Parliament enacted the Law.  But there was an expression of views.  There is a difference between individual’s freedom of speech which is subject to reasonable restrictions and Parliament or Assembly’s privilege to speak which is absolute.

Karan Thapar: And in this particular instance, the assembly’s privilege to speak has not been exercised and more importantly the requirement of ascertaining the views of the Assembly has not been fulfilled.

Faizan Mustafa: Correct.

Karan Thapar: And the important distinction is under President’s rule Parliament can assume the powers of an Assembly but it cannot express the views of the Assembly and if the Constitution requires the views of the Assembly be expressed that has not been fulfilled.

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Faizan Mustafa: Just give me half a second. ‘Power’ means your capacity to change the legal relation.  Say you have a power to arrest or not arrest, power to pass a law or not pass a law. Assembly’s expression of views is not power because those views cannot change anything.  Parliament can ignore its opinion.  It is an opinion.

Karan Thapar: It is an opinion and that opinion has not been expressed

Faizan Mustafa: Yes

Karan Thapar: This opens up even wider question.  Can in the first instance Parliament, assuming the powers of an Assembly act in such a way as to actually abolish the state.  And if it can, then it follows the all the other states of the Indian Union are in potential danger of the arbitrarily reduced to union territories if Parliament so wants to do.

Faizan Mustafa: Yes. They will first impose the President’s rule, then Parliament will act as a State Assembly but I don’t think that this is as per the spirit of the constitution.

Karan Thapar: Once again therefore this will be challenged in the Supreme Court. What are the chances that the Supreme Court will strike this down.

Faizan Mustafa: If court makes a distinction between expression of views and power, it must be struck down.  And already there was a talk two days before in Deccan Chronicle- there was a big news that Hyderabad is going to become next Union Territory.

Karan Thapar: So tell me something do you believe the Supreme Court will make this distinction between powers and expression of views?

Faizan Mustafa: It will depend on how lawyers who are challenging this Re-organisation of Jammu and Kashmir argue their case.

Karan Thapar: When I spoke  to you about the challenging in the Supreme Court about the way 370 has been deoperationalized, you said it is unlikely that the Supreme Court would act with urgency because they are reluctant to challenge a major political decision taken by government with the majority and it would be referred to the constitutional bench which  would take 4-5 years to  be set up.  Would the same happen here- the similar lack of urgency, the similar delay?

Faizan Mustafa: There is a difference.  Our courts are increasingly becoming positivist. Positivist means they think of law as a command of sovereign, if Parliament passes a law, they think that it is valid.  In fact there is a presumption of every parliamentary law being constitutional.  So about 370 they may say that President had this power, he exercised it.  Here if this expression, views and powers are distinguished, then Article 3 condition has not been met and they may say that it is not right. Now in that case, what will happen, there will be elections and after the elections, the Assembly will express its views, central government will ignore those views, as they did in respect of Telangana and re-enact this law.

Karan Thapar: So even in this instance even if Supreme Court  finds it objectionable and uphold that objection it would actually not stop Kashmir being divided and reduced to union territory status because new elections will be held, that Assembly would express an opinion, it will be ignored as it can be and the same thing will happen again.

Faizan Mustafa: That’s what I feel.

Karan Thapar: Lets at this point, step back in history- in 1947 the princely states including Jammu and Kashmir acceded to India, they all did so by way of the same Instrument of Accession.  The important question I want to put is this-  whilst all the other States subsequently merged, Jammu and Kashmir did not- is that therefore the critical difference between Jammu and Kashmir  and the other states?

Faizan Mustafa: Jammu and Kashmir’s relationship with India is sui generous. It is a unique relationship.  We need to understand that British Government about the Princely State did not have ‘sovereignty’, it had just ‘suzerainty’.  It had some control about their external relations. Indian Independence Act restored it so they all became fully sovereign.  So when they agreed with us they said that we are signing an instrument of accession on certain items, we will accept you, but they retained their sovereignty and  Raja Hari Singh even did not sign the privy purse thing.  They did not merge.  They did not accept privy purses.  Even their citizens during even British time were differently treated, that’s why you have Article 35A.  So, there is a difference between ‘merger’ and just ‘signing’ of instrument of accession.  But even those who merged there was an agreement that they will be paid privy purses. When we abolished privy purses, Supreme Court struck it down.

Karan Thapar: In fact the only privy purse that was not abolished, when privy purses was abolished was of Karan Singh, he chose to give it up voluntarily because he was a member of the Government of that time.  But leaving that aside, you made a critical point that the difference between Jammu and Kashmir and the other State is that the others subsequently merged, Jammu and Kashmir did not.  It only acceded in terms of the instrument of accession. Let us come to that instrument of accession.  That accession happened in terms of three critical subject defence, foreign affairs and communication.  All the other powers were retained by Srinagar. Did the instrument of accession have any provision whereby the Indian Government could unilaterally or arbitrarily amend the terms of accession?

Faizan Mustafa: No. In fact on the contrary, there is an assertion in Clause 7.  As many as 9 clauses were there.  Clause 7 clearly says that it will not fetter the powers of the King to have future agreements with India, he is not bound to accept future constitution of India and his sovereignty will remain intact in respect of that State.  And then 370 as you know, whenever you want to make a change, you need concurrence of the Constituent Assembly

Karan Thapar: This is very clear. Now these terms of accession have to be incorporated into the Indian constitution and Article 370 was devised for that purpose

Faizan Mustafa: Right

Karan Thapar: I am therefore right in believing that Art. 370 is first of all the link that connects Delhi with Srinagar and secondly is the clause which defines the relationship between Kashmir and the rest of India?

Faizan Mustafa: Yes,

Karan Thapar: In which case why Art.370 part of the section of the constitution which is described as temporary transitional and special provision?

Faizan Mustafa: Because when we drafted 370, by that time, Constituent Assembly of Kashmir had not met. It was temporary in the sense that till the Kashmir’s Constituent Assembly takes a view on it. Once Kashmir’s Constituent Assembly has taken a view, then nothing can be done about it because they have finalized the relationship with Indian Union’.

Karan Thapar: So the term temporary referred to that period till the Constituent Assembly in Kashmir had been convened. Till the Assembly was convened, the Government in Kashmir was with whom the Government in Delhi had to concur in any changes they made to the status of Kashmir. After the Constituent Assembly was convened, you needed the Assembly’s concurrence.  That’s why this Clause was called temporary.

Faizan Mustafa: No Constituent Assembly’s concurrence. Temporary would mean temporary in terms of time. I give you three examples. (1) Reservation in Parliament for SCs and STs, it was for 10 years, (2) English as official language for 15 years. Thus when a period is mentioned, then it is called temporary.

Karan Thapar: (3) Article 369 which is the preceding Article is only for 5 years,

Faizan Mustafa: For five years. Yes

Karan Thapar:  What is Art.369 just to have more clarity.

Faizan Mustafa: It is talking about trade within a State and the Parliament was given a power to legislate on it for 5 years with the matter being treated as one as mentioned in concurrent list.

Karan Thapar: So you are making a very important point where in fact the constitution intends something to be temporary, it specifies the number of years for which it would apply. 5 in one instance, 10 in  another, 15 in the third.  But as far as Article 370 is concerned, they did not specify the time for which it would apply.  And as you explained it is only temporary because of the nature of its relationship with the Constituent Assembly. Till the constituent Assembly of Kashmir was appointed, the powers could be enforced with the concurrence of the State Government. After the Constituent Assembly was convened, it required   Constituent Assembly’s concurrence that’s why the word temporary is there.  Is that right?

Faizan Mustafa: Because even State Government had the power to give its concurrence under 370 till the Constituent Assembly met.

Karan Thapar: And no further.

Faizan Mustafa: No further.

Karan Thapar: Article 370 may have been devised to reinforce and   protect the Kashmir’s autonomy.  But the truth is since 1950 a number of Articles of the Indian constitution have been extended and applied in Jammu and Kashmir.  I am talking about the Supreme Court, CAG, Election Commission, Article 356, the concept of the President’s Rule.  So, today, how much of the Indian constitution actually applies in Kashmir?

Faizan Mustafa: Almost the  entire Constitution. This has not been discussed in media. You see more than 260 Articles have been applied to Jammu and Kashmir. Out of 97 items on which Parliament can legislate, 94 have already been extended and about remaining 130, there is a Constitution of Jammu and Kashmir which is identical with Indian Constitution on powers of Speaker, powers of Deputy Speaker, Legislative Assembly, Governor, Governor’s oath, Privileges, Anti-defection Law. It is absolutely identical with Indian Constitution.

Karan Thapar: So in a very real sense this is what people mean when they say overtime 370 had hallowed out?

Faizan Mustafa: I feel so that the celebrations on 370 being abrogated or scrapped or diluted are out of proportion. Similarly the grief in Jammu and Kashmir is also out of proportion. Delhi has not got something very substantial and great and Kashmiris have not lost something very great.

Karan Thapar: But the important point you are making is virtually, virtually all the Articles of the Indian Constitution either have been made in the last 40 – 50 years applicable to Jammu and Kashmir or were identical to Articles that already exist in the Jammu and Kashmir’s constitution.

Faizan Mustafa: True.

Karan Thapar: Lets then at this point, come to what the de-operationalization of 370 means today. First of all, Law Minister Ravi Shankar Prasad has gone on record to say that there are several Laws and Acts of Parliament which he believes did not apply before 370 was operational and will apply now. He is talking specifically about the Prevention of Corruption Act, The Right to Education Act, The Right to Information Act, The Prohibition of Child Marriage Act as well as the Law of Preventing Manual Scavenging. To what extent is he correct and to what extent is he misleading?

Faizan Mustafa: Difficult to say anything against the  Law Minister. But the fact is they had Manual Scavenging law from 2010. On RTI, they had a law in 2004, in 2009 entire Indian Law was made applicable to them. They enacted their own law but it is identical with our Right to Information Act. On Prevention of Corruption, they had a law which in certain aspects is better than our law. And if you look at State Re-Organisation Bill, 166 of their laws in fact have been retained, about 164 of laws have been repealed and 106 laws have been extended and what have been repealed are the laws which were already applied to them. Say, the Hindu Marriage Act it was already applied to them. Minority and Guardianship Act, it was applied to them, now we are re-applying to them.

Karan Thapar: But you are saying a very important thing. There are some measures which Mr. Prasad believes will apply for the first time in Jammu and Kashmir and you are pointing out that actually as far as those measures are concerned, Kashmir’s own laws are probably better, one example is Right to Information Act. Kashmir’s own Right to Information Act has less exemptions than the new Indian Law which will apply and

Faizan Mustafa: RTI   was already applied in 2009

Karan Thapar: Secondly the status of State Information Commissioners in Jammu and Kashmir was greater than it is under the Indian Law. In Kashmir they were equated with High Court judges, in India they were equated with  the Chief Secretary in the State. Here, although there is a change, it may not be a change for the better.

Faizan Mustafa: Take Education for instance, their Right to Education, their Constitution itself talks of free education up to university level. Our Right to Education gives free education only between 6 to 14 years.

Karan Thapar:  This is another example, where the Law Minister claims that in fact RTE, the Right to Education will be applying in Jammu and Kashmir insisting it did not apply earlier. You are pointing out that their own constitution had better terms and in free education up to University.  So, in both these instances, the Law Minister is wrong?

Faizan Mustafa: You can say so. But on number of things we have not studied their constitution. Say words secular and socialist in their Constitution occur in 1956.  In our constitution, it will come in 1976.

Karan Thapar:  In other words, they have committed themselves to secularism and socialism in their own constitution 15 to 20 years before the Indian constitution committed us to it.

Faizan Mustafa: Yes

Karan Thapar: That’s very interesting. However, the government lays a lot of stress on its claim that women’s rights have been enhanced in Jammu and Kashmir by de-operationalizing Article 370 and in particular they point to the fact that the Triple Talaq Act will now apply in Jammu and Kashmir.  Do you believe this been a significant enhancement in human rights or once again is this a mixed picture?

Faizan Mustafa: It’s a mixed picture, because before 2007 the Shariat Application Act,1937 was not applicable to Jammu and Kashmir and Muslims there were governed by Shri Pratap Consolidation of Laws of 1930’s. Now, under that law, if there is a difference between custom and statutory law, the custom shall prevail. And Kashmiri Muslims were not governed by Muslim Personal Law but were governed by customs and some of these customs were at variance with Islamic law. I give you one example, in Islamic Law they don’t make a distinction between married daughter who is living with husband and married daughter living with her father. There is a difference in Kashmir they have Dukhtarekhana Nashin and Dukhtarekhana Berun.  Now this Dukhtarekhana Nashin  is married daughter who lives with his father used to get share equal to son. Similarly, in Islamic Law, adoption is not allowed but in Kashmir Pisare Parwardar  used  to get a share in property. So there are things where they were, say Muslim Marriage Registration Law were ahead of rest of the country. In rest of the country, Muslim Marriages’ Registration is not compulsory. But in Kashmir it was compulsory.

Karan Thapar: So you are saying to me that because customary law in  Kashmir took precedence over statutory laws and because women’s rights in customary law were a lot greater. Kashmir actually had very strong women’s rights, particularly giving rights to unmarried daughters equivalent to those of married daughters.

Faizan Mustafa: Married daughter, who is living with father getting a share equal to son, otherwise you know in Islam  the daughters will get half a share. There they were getting the same share. But interestingly, this 2007 Application of Shariat Act has now been repealed. So we do not know as of now by what law Kashmiri Muslims are going to be governed.

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Karan Thapar: Until the 2007 complication came in, actually women’s rights in Kashmir which were determined by customary law in some senses much stronger, is that correct.

Faizan Mustafa: It is correct in few senses, I will give you one example. It is said that a married daughter who is the permanent resident of Kashmir if she marries an outsider, then she or her children will not get the right to property. It’s a myth. If you look at that 1920 law, it’s the other way round. If an outsider male marries a Kashmiri girl, this male cannot become permanent resident. But if a Kashmiri permanent resident female marries an outsider and this man dies then she gets everything.

Karan Thapar: This is very interesting because one of the claim is that the government has made that rights will have been increased as a result of de-operationalising 370 is to do with the right of Kashmiri women to inherit. I want you to clarify this, because this is very important. The government says when 370 existed, if Kashmiri women married non-residents, they couldn’t inherit property. You are saying that was wrong they always could, it is the man who could not but they could.

Faizan Mustafa: No. Kashmir’s High Court in 2016 in the Sushila’s case  had clarified it, that this is a myth, that she does not inherit, she indeed inherits,  it’s an outsider male who marries a Kashmiri girl who was at a disadvantage.

Karan Thapar: So on the specific issue of Kashmiri women inheriting, if they marry non-residents, you are saying a wrong picture has been understood.

Faizan Mustafa: Yes.

Karan Thapar: Kashmiri women always has the right to inherit, it was the non- resident male who would not have inherited. But the woman who is Kashmiri would inherit regardless of whether she is married a fellow Kashmiri or a non- resident.

Faizan Mustafa: correct

Karan Thapar: So this was clarified by the court in 2016.

Faizan Mustafa: In Susheela’s case.

Karan Thapar: But the impression outside Kashmir is a misunderstanding and when the Law Minister says that this is one area where rights have been increased he is going by the misunderstanding and is not going by the real situation

Faizan Mustafa: because truth has become irrelevant. We live in post truth world.

Karan Thapar: There is one of the claim that government makes as a result of 370 being de-operationalized, there will be increased rights they claim that now there will be reservations in Kashmir for the Scheduled Castes and for the Backward Class, is that claim correct or is that exaggerated.

Faizan Mustafa: It is exaggerated because already there is a reservation for SCs, STs and BCs and they have their Reservations Act and this reservation law was also very progressive. For instance it says reservation shall be in proportion to population. It says reservation will not be more than 50%. It says if the seats are not filled in one year, they will carry forward.

Karan Thapar: progressive in all these respects

Faizan Mustafa: yes

Karan Thapar: The reservation law in Kashmir is better than the reservation law in the rest of India

Faizan Mustafa: yes

Karan Thapar: I am just saying that actually reservations for Schedule Caste and Scheduled Tribes did exist in Kashmir

Faizan Mustafa: Yes there is a Reservation Act 2004

Karan Thapar: So the government’s claims that the de-operationalisation  of 370 makes reservations applicable in Kashmir for the first time again is  wrong ?

Faizan Mustafa: You see.

Karan Thapar: Yes, it is wrong isn’t it.

Faizan Mustafa: I would say that they are not really appreciating what was the law existing at that point of time.

Karan Thapar: and because they haven’t appreciated it, that claim is wrong.

Faizan Mustafa: I am telling you under Article 341 and 342, the President of India notifies certain castes as SCs for a particular state and  tribes as STs, so 13 castes had been notified as Schedule Castes for Kashmir and 11 tribes had  including Gujjars and Bakkarwals already been so notified. They are already there since 1989.

Karan Thapar: and they already had reservations

Faizan Mustafa: Yes

Karan Thapar: So the claim the Law Minister makes that now for the first time there would be reservation for SCs, STs and the Bakkarwals is wrong

Faizan Mustafa: there is a

Karan Thapar: Why you are hesitating to say wrong

Faizan Mustafa: I am hesitating because the question is whether outsiders will get reservation, now there are Supreme Court judgements which say that Schedule Castes and Scheduled Tribes should be in relation to the state, if it is to be in relation to the State, outsider SCs and STs may not get the jobs in Kashmir. In fact in Jammu already BJP people themselves are saying we don’t want outsiders to come over here.

Karan Thapar: I understand but this is a fine point to do having understand rulings of Supreme Court on whether outsider SC and ST get reservations in a state but the real point which the Law Minister made is that prior to the de-operationalisation of 370, there were no reservations for SCs and STs and Bakkarwals that point was wrong.

Faizan Mustafa: There were reservations.

Karan Thapar: And so there the Minister is wrong.

Faizan Mustafa: Yes

Karan Thapar: Now I want to come at this point  to a very interesting paradoxical point and its one that I indicated  in my introduction to this interview – there are several critical instances where as a result of de-operationalising 370,  Delhi’s powers in J&K have actually reduced and the reason is that when  370 existed, Delhi had more powers in J&K then it does in all the other states, I am taking with specific reference to the fact that 370 made it easier to repeatedly extend President’s Rule in J&K compared to any other State.  370 made it easier for the Delhi government to take over the state’s powers in terms of subjects mentioned in the State List of the Constitution, again 370 made it easier to impose an emergency in J&K on ground of  ‘internal disturbance’ and finally 370 made it easier to impose additional restrictions on freedom of speech- additional to those mentioned in Article 19 compared to the other States. These are far critical areas where 370 gave Delhi greater powers in J&K compared to all the other States.  Now that ceases to be the case.

Faizan Mustafa: Karan this is the best question raised on the entire controversy of 370 in last three weeks.  Let me answer it in some details.  In fact we have lost more power because of what has happened in last three weeks.

Karan Thapar:  By ‘we’, you mean Delhi?

Faizan Mustafa: Delhi…Yes of course. I identify myself with Delhi rather than with Kashmir. So say we can impose national emergency and it can be imposed in a part of a country also, only on the ground of ‘armed rebellion or external aggression’. In Kashmir we can impose national emergency on ground of ‘internal disturbance’, this was the ground on which Indira Gandhi had imposed emergency in 1975 and this was the ground which 44th  amendment had deleted but it was not extended to Jammu and Kashmir. Similarly, after the 44th Amendment, now even during Emergency my right to life and personal liberty cannot be derogated at all but we did not extend it to Jammu and Kashmir. You talked about freedom of speech, now reasonable restrictions on freedom of speech can be imposed which are given under Article 19(2)  but for Kashmir, we made a modification under 370 and what did we say that the restrictions which ‘appropriate legislature thinks reasonable’ so there is no judicial review of denial of freedom of speech in Kashmir. Similarly about your right to reside and settle anywhere in India, the restriction under Article 19 can be imposed in the interest of Scheduled Tribes but for Kashmir the expression is in the interest of ‘security of a state’.

Karan Thapar: And similarly the Delhi Government could with much greater ease exercise authority on subjects that existed in the State List in the case of Jammu and Kashmir than it could in the case of any other State

Faizan Mustafa: Article 249 that permits Parliament to legislate on a subject given in state list if a resolution is passed by the Rajya Sabha. Now for rest of the States the resolution of Rajya Sabha must mention an item given in State List. For Jammu and Kashmir, resolution can mention any subject so the powers of the Parliament to legislate are much wider in respect of Kashmir.

Karan Thapar: So in all these critical areas and some of these are very very important critical issues, they are not ordinary issues. What the de-operationalisation of 370 has done is to actually take away the special status of Delhi rather than the special status and Kashmir

Faizan Mustafa: Yes one more I am reminded of President’s rule- maximum limit for other states is three years, for Kashmir it is seven years.

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Karan Thapar: So this is another area where Delhi’s powers over Kashmir because of de- operationalisation of 370 have reduced, they haven’t enhanced.

Faizan Mustafa: Yes we have lost lot of power because of this move.

Karan Thapar: And this also means,  I am reiterating  the point that 370 didn’t just create special status for Kashmir in critical areas, it actually created special powers and special status for the Central Government, i.e., for Delhi.

Faizan Mustafa: I think that is the central point which we missed in this debate that 370 was all about special powers of the Centre, it was not about special powers of Srinagar because all these years through Presidential Orders Article 370, you know, has almost emptied its contents, it was a shell which had emptied its contents and therefore it was much more useful for us than for Kashmir.

Karan Thapar: This is a misunderstanding of Article 370 that has led many to believe, special status of Kashmir has been abolished- actually  what was been abolished or de-operationalized  was the special status, special powers that Delhi had.

Faizan Mustafa: Definitely, except the symbolic and sentimental value, it had for Kashmiri people which is important, I am not denying its value but legally speaking in terms of power, we had much greater powers under 370 than Srinagar.

Karan Thapar: This is again a very important point, for Kashmiris, Article 370 was important for sentimental symbolic reasoning, for Delhi it actually was important because it conferred the real power on Delhi.

Faizan Mustafa: Just to give an example…

Karan Thapar: I am yet to finish, power that Delhi could exercise in Jammu and Kashmir which it cannot exercise in other states, in other words Delhi’s control was disproportionately greater over Jammu and Kashmir, now that’s gone.

Faizan Mustafa: Yes. I agree with you, for instance, if Parliament amends constitution it becomes applicable in rest of the country. Now it is the will of the Parliament but President which is an executive, may not extend it to Jammu and Kashmir so while we will get the benefit of the constitutional amendment but Kashmir will not get the benefit.

Karan Thapar: Now it has to be extended.

Faizan Mustafa: And  that is the reason this is the reason why they made it Union Territory.

Karan Thapar: This is very important and this is why I want to reiterate the point that far from the de-operationalisation, actually removing or abolishing the special status of Kashmir, it only happened in terms of the sentimental importance of this measure for the Kashmiris, the real reduction has been in the special status of Delhi.

Faizan Mustafa: Yes

Karan Thapar: Delhi’s powers have been reduced.

Faizan Mustafa: Yes.

Karan Thapar: Let’s talk on to one last point as we are coming to the end of this interview, Article 370 has been de-operationalised but Article 371 which confers the whole range of  special concessions and special powers on other states continues and the states that benefit from 371 are States like Maharashtra, Gujarat, Uttarakhand, Himachal Pradesh, Telangana and Andhra, the whole of the North East and the Adivasi areas  that are  designated as scheduled territories. What do you make us the fact that 370 has been de-operationalised, but 371 continues?

Faizan Mustafa: The whole idea of uniformity that we have one law, one country, one language, one religion is not constitutionally correct. Therefore, centre’s relationship with state may differ from state to state. So, about Nagaland, any Parliamentary Law which will be passed, it will not be extended to them till their Assembly endorses it.

Karan Thapar: Which is precisely what 370 did for Kashmir.

Faizan Mustafa: Yes, even criminal law has not been extended there. Naga custom will prevail over our laws. Special status is there for as many as eight other states. So, I feel this is good that we don’t have one uniform relationship with all this.

Karan Thapar: because this reflects the reality

Faizan Mustafa: Yes, and the diversity

Karan Thapar: But you are making a very important point. Several powers or concessions that Kashmir enjoyed under 370 are also enjoyed by Nagaland.

Faizan Mustafa: In a  different sense.

Karan Thapar: One is the laws passed by Parliament do not become  applicable in Nagaland unless accepted by the Legislative Assembly of the State precisely that applied in Jammu and Kashmir but that  now seems  not to  be the case of Jammu and Kashmir but it continues in the case of Nagaland.

Faizan Mustafa: Yes,

Karan Thapar: Isn’t that unfair?

Faizan Mustafa: It looks unfair but more than that even Assembly, Naga Assembly cannot pass laws for all districts.  So even at the district level there is autonomy. I think the name of the district is Tuensang or something. There is a Ministry of Tuensang Affairs. So federalism is all about the different people having different kinds of autonomy when they come together.

Karan Thapar: Secondly, something else seems to be irritating people is that Article 370 permitted Article 35A which restricted non-residents acquiring property in Kashmir. But you have several restrictions on outsiders acquiring property in Himachal Pradesh and Uttarakhand and those continue. So, once again isn’t that an amount of unfairness you remove it in one case and allow it to continue in another.

Faizan Mustafa: That’s why Jammu’s BJP chief, I think one Kuldeep Singh has said we don’t want that outsiders come and purchase properties in Jammu. We want similar kind of restrictions being re-imposed in Jammu and Kashmir.

Karan Thapar: So, here is the chief of the BJP in Jammu actually saying I am terribly scared now that you have removed 35A, outsiders  will come and acquire property we don’t want that please re-impose the restrictions that originally existed anyway?

Faizan Mustafa: Yes, because, if you look at number of states have domicile reservations as well.  Now recently Jagan in Andhra Pradesh said 75% jobs should go to locals.  In most National Law Universities, we have 50% reservation for the State in which that University is located.

Karan Thapar: Let me interrupt and ask you this. Why is it that special provisions for Jammu and Kashmir have been removed, but almost identical special concessions exist for Nagaland? And by the way according to the newspapers, the peace negotiations that the  government is carrying on with the NSCN according to newspaper reports could even include giving them their own constitution and their own flag. Two things that they  have removed from Jammu.  Why is it that in one case it has been removed and in the other it exists or it might even be expanded? Is it because Kashmir is Muslim?

Faizan Mustafa: I really don’t know but I personally feel if some states have special status and they feel being an integral part of India, it is better if our states are satisfied.  You know those countries which do not concede power to the states and don’t believe in federalism, there secessionist activities increase.

Karan Thapar: Surely, that will be the case in Jammu and Kashmir when they become aware that the very provisions they lost either still exist in the case of Nagaland or may be expanded if newspaper reports are correct to give the Nagas their own constitution and their own flag.  That will fuel anger in Jammu and Kashmir and possibly fuel secession.

Faizan Mustafa: Possible. Possible but who knows that protection to Nagas and other States will really continue forever.

Karan Thapar: That’s also possible. Now, let me give the explanation that law minister has given for the differential treatment of 370 versus 371. He says 370 in his eyes is a temporary provision. 371 was a special provision, which is why 370 has been de-operationalised but 371 continues.  Do you accept that distinction?

Faizan Mustafa: Not really, because you see, Supreme Court has said that Kashmir’s 370 is special and permanent. So, two are not entirely distinct. Any differential dispensation is a special dispensation. So, Kashmir had that different dispensation. So, it was a special status.

Karan Thapar: Let me raise this point a very important concern which you touched upon when you mentioned the Supreme Court.  The Supreme Court has frequently ruled that Article 370 cannot be abrogated  unless you get the concurrence of the Constituent Assembly and most recently this was done by Rohinton Nariman, a Supreme Court judge recently in 2016. The Government in acting has gone in violation of what the Supreme Court has repeatedly said. Could that become a problem for the Government?

Faizan Mustafa: It won’t. We think that the only case in which Parliament has over turned a Supreme Court judgment was Shah Bano. As to SC, ST Atrocities Act, there was a judgement last year of the Supreme Court, then Parliament overturned it. So, Parliament does have the power to overturn the Supreme Court judgement including in this case and that is exactly what this amendment did that the Constituent Assembly will now mean Legislative Assembly.

Karan Thapar: So, in other words, Parliament has the power to overturn and disregard what Rohinton Nariman, a Supreme Court judge said and there is very little the Supreme Court can do about it.

Faizan Mustafa: Yes, that’s what the parliamentary democracy is all about.  One last point, in the entire process of our discussions on 370, we have missed, that Governor who will take over the powers of the state government under 356 as a state government, he has to act on the advice of Council of Ministers. There is no Council of Ministers. So, mere Governor’s concurrence will not mean concurrence of the state government.

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Karan Thapar: And in critical areas in either amending 370 or splitting the State and demoting the two parts in Union Territories, the Central Government has acted with what they call the concurrence of the Governor and you are now pointing out that concurrence of the Governor is invalid because it doesn’t have the support of the Council of Ministers behind it.

Faizan Mustafa: Even as per the latest amendment that is what I am saying.

Karan Thapar: So,  this is yet another problem.

Faizan Mustafa: And on which day that concurrence was given.

Karan Thapar: This is yet another problem. Now, we have a whole list of problems.  Some that we discussed at the beginning of the interview and now that we discussed just now. The first is to do that the fact that we don’t have the concurrence of the Governor the earlier one was the fact that the Supreme Court even has recently in 2016 has said you can’t abrogate without the concurrence of the Constituent Assembly. You still believe despite these four reasons, that the Supreme Court would effectively step in and overturn things. It will not show urgency as you said earlier and it will push the matter to a constitution bench which could take 3-4 years to be formed and by then everything will be fait accompli. You still stand by that?

Faizan Mustafa: I am inclined because the way the court operates, they have very  important matters already listed before the Constitution Bench so that is a routine wait.  But I am really thinking of this, that since the Assembly is not there, Parliament is acting as Assembly. Now can Parliament acting as Assembly do such a drastic thing.  I think this is absolutely against the text as well as the spirit of the Constitution.

Karan Thapar: If the Supreme Court doesn’t accept the challenge, and strike this down, many will argue this is proof of Supreme Court’s cowardness that they are reluctant to challenge or overturn a decision of majority that won’t show up Supreme Court in  good light.

Faizan Mustafa: Yes, but we had such incidents you know you had ADM Jabalpur you had A.K.Gopalan.

Karan Thapar: You could see ADM Jabalpur being repeated over again in this instance.

Faizan Mustafa: I think so that probably we are heading in that direction unfortunately. It may not really happen, you know sometime the judges do surprise us.  Indira Gandhi was all powerful and one single Judge in Allahabad struck down her election.

Karan Thapar: We need something similar if the principles and the spirit of the constitution is to be upheld.  Spirit and Principles as you have elaborated them earlier on.

Faizan Mustafa: No, I would say as a student of law that at least I would like to see that kind of debate happening in the Supreme Court. Parliament was asserting its power to amend any provision of the Constitution and Nani Palkhivala  stood up and said that there are implied limitations on the power of the Parliament.  So, in this case also I would like to see whether Supreme Court really upholds the constitution and believes it is not enough that there is a law passed by the Parliament but that law is just, fair and reasonable.

Karan Thapar: My last issue.  the government tells that the real reason to strike down or de-operationalise 370  is because it was permitting  even encouraging corruption and terrorism. How do you respond to that?

Faizan Mustafa: Possible.Government may be in know of that information.  But you have naxal terrorism as well.  Now as many as 18 states are affected by that.  So they don’t have any special status or Article 370. I am reminded of Paul Wilkinson.  He says that the settled strategy of terrorists world over is that they would like to see that a civilised state indulges in state terrorism. When a state indulges in a state terrorism, then they will go to their constituency, people who have been adversely affected and convince them that you have been unjustly treated and then people fight against those injustices so if we really want to curb down terrorism, we must ensure that there are no injustices anywhere in our country.

Karan Thapar: You are making a very important point. If naxalism can exist in 18 states where there is no 370 then it’s hard to say conclusively that 370 is the reason why you have terrorism in Jammu and Kashmir.  There could be a lot of other reasons including the point you made injustice, mis-handling, political interference etc. What about corruption?

Faizan Mustafa: Even on corruption, take PDS leakage in Gujarat, in UP, you have it, in Delhi even more than 70% leakage is there. In Kashmir you had about 7% or 8%. So you have corruption all over.  India’s ranking in the transparency index is not very high.

Karan Thapar: Once again you are saying 370 is not the actual reason why we have corruption.

Faizan Mustafa: It may not be the only reason I am saying.

Karan Thapar: And you are also pointing out that in terms of leakage of PDS, its a lot lot higher in states like Gujarat than it is in Kashmir.

Faizan Mustafa: No, on number of parameters, Kashmir has been doing better than other States.

Karan Thapar: Particularly including corruption?

Faizan Mustafa: You can say.

Karan Thapar: Finally, the government has also said that Article 370 was an obstacle to development. Was it?

Faizan Mustafa: I really don’t know, possible, because this is not a legal question. So, I may not give you an answer.

Karan Thapar: People make is that under Article 35A outsiders in the industry could not acquire land but from the Farooq Abdullah’s government onwards, Kashmir made it clear that they are willing to give 99 to 100 year leases.  The question is that the 100 year or 99 year lease is sufficient to encourage industry or is it a discouragement because they don’t have an outright use of land.  Do you have any sense of that?

Faizan Mustafa: I am not the right person to answer this question because I don’t really know how corporates make their investment decisions. But generally I think 99 year lease should be good enough.

Karan Thapar: Finally, I am going back to the issue which we began.  As I think it is very important, as you pointed out, Article 370 has not been abrogated.

Faizan Mustafa: Correct.

Karan Thapar: It exists on the Statute Book.

Faizan Mustafa: Yes.

Karan Thapar: It is still part of the constitution.

Faizan Mustafa: Yes.

Karan Thapar: All that’s happened is that is been de-operationalised.

Faizan Mustafa: Yes.

Karan Thapar: Doesn’t this mean that theoretically if there is a government in the future with the majority and secondly with the will to do so it can re-operationalise Article 370, it can use precisely the same procedure to reverse, what this government has done.

Faizan Mustafa: Theoretically, yes.  But, no Government would like to do that.

Karan Thapar: But theoretically the option is open.

Faizan Mustafa: Option is open but no central government would want  to lose its tight control over state.So no central government would like to give autonomy to a state

Karan Thapar: But theoretically, because Article 370 is not abrogated the same process by which it has been de-operationalised can be used by future Government to re-operationalise it.  The only question is will central government want to do it? The question is will it be done?  That’s in doubt.  Theoretically, it could be.

Faizan Mustafa: It could be.  But, I don’t think any central government would like to do it.

Karan Thapar: Prof. Faizan Mustafa thank you very much for clarifying in detail with such insight an issue that is quite complicated and difficult for people to understand.  I think now most people’s understanding of exactly what has happened in Jammu and Kashmir, the extent to which it is  legal and legitimate and where it is the relationship between the state and the rest of the country will be far clear up.

Faizan Mustafa: Thank you so much Karan.