Scroll interview: Why Kashmiri MP Hasnain Masoodi thinks J&K delimitation is unconstitutional

This month, the Jammu and Kashmir Delimitation Commission is expected to submit a much-anticipated report. It is the new electoral map of the Union Territory of Jammu and Kashmir.

Drafts of the report created a furore in the Kashmir Valley earlier this year – it had allotted six additional assembly seats for Hindu-dominated Jammu and only one for Muslim-majority Kashmir.

Critics pointed out the new distribution did not seem to be based on any of the premises for seat allocation, whether it was population or the remoteness of a region. In the Valley, many accuse the commission of doing the bidding of the ruling Bharatiya Janata Party, which has a large base in Jammu, and of disempowering Muslims in the Valley.

Jammu and Kashmir has not had an elected government since 2018. In August 2019, the former state was stripped of autonomy under Article 370 and split into two Union Territories. The Jammu and Kashmir Reorganisation Act of 2019 also mandated the delimitation exercise. The Centre has suggested delimitation could be a precursor to elections in the Union Territory of Jammu and Kashmir.

The three-member commission, which was formed over two years ago and submitted its report after two extensions, is headed by Justice Ranjana Desai. Chief Election Commissioner Sushil Chandra and Hirdesh Kumar, the chief electoral officer of Jammu and Kashmir, are also members. There are also five associate members – the members of Parliament from Jammu and Kashmir – who were invited to give their recommendations.

Scroll.in interviewed Hasnain Masoodi, an associate member of the commission, a member of Parliament from Kashmir, a National Conference leader and a former judge. Masoodi and his party have gone public with their objections to the report. Masoodi was also one of the first to petition the Supreme Court against the reorganisation act and other legislative changes introduced in August 2019.

Masoodi spoke about why he thinks the commission’s new electoral map is unfair, why the National Conference chose to engage with the process despite its reservations and his experience of dealing with the three-member commission.

Here are excerpts from the interview:

The delimitation commission has proposed six more seats for Jammu and one for Kashmir. Could you explain why this was seen as unfair?

Our [the National Conference’s] issue with the delimitation commission is fundamental. It is a delimitation for the Union Territory assembly. But our stand is that the bifurcation of the erstwhile state of Jammu and Kashmir is unconstitutional in the first place.

Second, we have thrown a challenge to the basic law under which the exercise is taking place. Once that challenge is under judicial scrutiny, you are expected to stay your hand in a democracy, [according to] the ethics of the Constitution and constitutional morality. But you are still going ahead with it. Let’s leave that aside for a while.

The fundamental criteria to decide the distribution of seats in the delimitation is population but that criteria is not being observed and respected. Suppose, we have assembly segment A. And it has a population X. Assembly segments B, C, D must also have the same population so that once they elect their members…, everyone has a feeling that they have equal say in the government.

Now, what’s happening in Jammu and Kashmir? According to the 2011 Census, the average population of an assembly segment amounts to 1,33,600. Ideally, this number of people must have a representative in the assembly.

According to the commission’s draft report, we have at least five assembly segments in Jammu where the population is around 70,000 per constituency. Here in Kashmir, we have assembly segments where the population is around 2 lakhs.

Apart from population, everybody acknowledges that there are some segments which are disadvantaged because of connectivity, tough terrain and other disadvantages. The idea given to us by the commission was that these seats will be given 10% concession. But when we saw the draft, it’s 60% [less people per constituency] in places.

Given the Kashmir region’s population, we were entitled to have four additional seats in Budgam, Anantnag, Kupwara and Srinagar.

Other considerations have been applied selectively. Go to Samba in Jammu. It’s a suburban area and has all the advantages – railway tracks, connectivity, industrial complexes, and people aren’t so disempowered. It’s adjoining the international border – that’s being taken as a factor by the commission.

Now, go to Baramulla, we have 100 kilometres of the district spanning the Line of Control. So, the disadvantage is similar but that again is not respected in the latter’s case. [The commission has proposed an additional seat in Samba but not in Baramulla].

[Other] subsidiary criteria for delimitation are contiguity, convenience and compactness. How can you have a parliamentary constituency [including] areas in South Kashmir like Anantnag and Kulgam and Rajouri in Jammu region? It means someone living in Frisal or Kapran in [South Kashmir] has to go all the way to Nowshera in Jammu to meet his representative. The road between the two regions is closed for months in winters. Where’s the compactness and convenience for an individual in such a distribution?

You were among the three associate members from Kashmir who engaged with the commission. How did they take your suggestions and comments about their series of proposals?

Let me make clear that an associate member doesn’t have the right to veto or overrule any decision of the commission.

When we got the first invitation from the commission, we [said] that this exercise could be unconstitutional since the parent act is under judicial scrutiny and the top court of the country is examining the matter.

We expected that they would appreciate our stand and say let’s wait for a while. They didn’t stay it. Notwithstanding our objections, they visited Srinagar. Our delegation and other parties met them and reiterated [our] stand. Then they went to Jammu. Then there came a draft.

Then we went to meet the commission at their office [in Delhi] and said this is against the fundamental criteria of the delimitation process. I [told] the chairperson of the commission, who’s a legal luminary, that going ahead with the exercise will be kind of pre-empting the Supreme Court’s judgement.

When the second draft came, we again reiterated our stand. We don’t know what the final report will be but we have put on record all our objections, including the constitutional and legal objections.

The commission was independent and headed by a retired judge along with two other members. But the commission’s final report has been accused of favouring a particular political party. Do you feel that is a correct assessment?

If the basic criteria and principles are not followed, people will make inferences that there’s something up their sleeve.

Let’s say 55 lakh people deserve 51 seats and they are instead given five to six seats less than that. That means these people are being disempowered and are being deprived of their right to be equal participants in the governance.

When the commission was announced in March 2020, many had asked the National Conference to stay away from it as their presence would legitimise the exercise. Do you now feel they were right?

Our first decision was to stay away. We informed the commission as well. Then every political party and everyone on the political horizon said — why don’t they go and put across their point. They said, you people are in the parliament.

I think it was a good decision to go because people also wanted us to go and we just put across our viewpoint.

The electoral map of Jammu and Kashmir has been altered by the delimitation commission. How do you think it will impact traditional political players in the Valley, such as the National Conference, Congress and Peoples Democratic Party?

These are a series of steps to ultimately disempower people and have their [the government’s] own way. If the rules of the game are followed and there’s a level playing field, we will just go to people and they will decide.

In the district development council [local bodies that form the apex of the three-tier panchayati raj system in Jammu and Kashmir] elections, we didn’t even issue a manifesto, we didn’t even make an appeal. None of our leaders actually went to people and asked for votes. But people knew what they had to do and you know what was the result [a conglomeration of traditional Kashmiri parties, including the National Conference, won most seats].

What’s painful is the rules are not being followed or are being selectively followed.

What do you think the delimitation commission has achieved in Jammu and Kashmir?

I don’t think they can claim to have made many achievements in J&K. Ultimately, if you push people into this kind of atmosphere, where they feel that they are being wronged or dealt with unfairly, it has an impact on [future] generations.

We gave our objections and viewpoints, in writing, three times. That was unfairly excluded from consideration.

Some historically significant constituencies in the Valley have now got new names. Many protested that it was an attempt to erase Kashmir’s history. What was the commission’s logic for changing the names?

We had objections to that. We said now it’s being used as a tool of cultural assault. In other parts of India, the focus is to find old names of places and here old names are being erased.

Amira Kadal assembly constituency is now Chanapora. [Srinagar’s Amira Kadal] bridge was built by Amir Khan, who was one of the governors and known as a good builder and architect. These are part of our culture.

We have always respected Kashmir’s traditional names. That’s what I told the commission. In the heart of Srinagar city, the most important healthcare facility is named after the Dogra ruler, Maharaja Hari Singh. Some distance from there, we have two main colleges named after Dogra rulers. Although there was a big struggle against the autocratic rule [of the Dogras], we respected their names. Because it’s history and history is everything.

How many of your suggestions and objections were accepted by the commission?

That will be clear only after the final report is out but largely all of our suggestions were ignored, given what we saw in the drafts.

Our argument was convincing. It had a legal basis. They could have very well stayed the process and said we shouldn’t go ahead with it. It would have been a statement, that look, we have a constitutional system in which values are so strong that this is unacceptable. That should have happened. But it didn’t.

The BJP has promised the restoration of statehood to Jammu and Kashmir elections. Given its objections to the new allocation of seats, will the National Conference still be part of electoral politics?

All of these questions will come later. Nothing can be said with certainty at this moment. Elections are not in sight. We will be able to deliberate on it only after there’s something concrete.

It can also mean you won’t participate in elections?

We don’t know. These decisions are taken at the highest level of the party. I am not part of that decision-making within the organisation.

Do you think the commission made enough effort to talk to other sections of society, such as activists, social workers and other opinion makers?

In our objections to the draft reports, we had asked how the commission carved out new constituencies on a map without actually going on the ground. Did they go to Poonch? Did they see for how much of the year the road is closed? That’s why we had suggested the commission engage the people on ground and seek their viewpoints too.

Reportedly, civil society people and others weren’t given a patient hearing. It wasn’t possible to hear all of them in a single day.