India's removal of occupied Kashmir's special status may face legal challenges: lawyers

Published August 5, 2019
Indian security personnel stop people during restrictions in Srinagar on Monday, August 5. — Reuters
Indian security personnel stop people during restrictions in Srinagar on Monday, August 5. — Reuters

India's move on Monday to strip occupied Kashmir (IoK) of special rights is likely to face legal challenges, constitutional experts and Supreme Court lawyers said, with some questioning the legality of the route used to make the change.

India's revocation of the Himalayan territory's special status is a bid to fully integrate its only Muslim-majority state with the rest of the country.

Indian Home Minister Amit Shah said the government would scrap the constitution's Article 370 that grants special status to Jammu and Kashmir state and allows permanent residents rights to property, state government jobs and college places.

See: 'Day of shame': Indian opposition slams BJP move to revoke occupied Kashmir's special status

To do so, it used a provision under Article 370 of the constitution that allows the law to be tweaked by a presidential order — provided there is consensus in the constituent assembly of Jammu and Kashmir.

One problem, though, is that the constituent assembly of the state was dissolved in 1956.

The government has tweaked another constitutional article so that a reference in Article 370 to “constituent assembly of the state” becomes “legislative assembly of the state”. The legality of that move, the lawyers said, could be questioned in court.

Furthermore, New Delhi said all the changes were agreed to by the state government. And that, some lawyers say, could be another issue for the government of Prime Minister Narendra Modi as there currently is no government in Jammu and Kashmir.

For the past year the state has been under presidential rule, after Modi's Bharatiya Janata Party (BJP) pulled away from an alliance with a local Kashmiri party and dissolved the state assembly.

“If there is president's rule, then how does that work? Does it fulfil the requirement?” said senior Supreme Court advocate Akhil Sibal. “That to my mind would be the legal faultline.”

Malavika Prasad, a constitutional lawyer, said: “How did the government of Jammu and Kashmir concur with the changes if the state has been under presidential rule for a year now?”

Shah said earlier on Monday that the changes would pass “every legal scrutiny”. But lawyers said they expect several petitions challenging India's changes to Article 370. One group of lawyers in New Delhi is already working on a possible petition, an attorney said.

India's Supreme Court is the likely venue for petitions against the government's revoking of the state's special rights, they said.

There could also be legal objections to related government legislation concerning the division of Jammu and Kashmir into two entities, including a separate Buddhist-majority but sparsely-populated mountainous territory, Ladakh. That law will rely on the constitutional changes made on Monday.

Critics of Modi's government and the BJP have accused it of changing the constitution to shift Jammu and Kashmir's demographics — it is currently majority Muslim — as well as to pander to many in its Hindu nationalist base that have long demanded the right to own property in Kashmir.

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