India's legislative actions in Jammu and Kashmir — legal or illegal?

A challenge could be brought to the Supreme Court, which would likely reject the presidential order, experts say.
Published August 7, 2019

India’s Hindu nationalist-led government on Monday used a presidential order to revoke the special constitutional status of Muslim-majority Jammu and Kashmir under Article 370. The Bharatiya Janata Party (BJP) government also had a bill passed to downgrade Jammu and Kashmir into a union territory instead of a state and turn a third region of the state, Ladakh, into a separate union territory.

The immediate implications are that occupied Kashmir will lose its flag, criminal code and constitution.

The big question being asked by experts, journalists and international organisations is: are India’s actions legal?

“This move is a violation of the procedure in any case and can be challenged by the Supreme Court. Article 370 can only be managed by the government of Jammu and Kashmir. So, this Parliament cannot abrogate it. This is what the law says,” said A.G. Noorani, a constitutional expert who has written extensively about Kashmir, including the 2011 book “Article 370: A Constitutional History of Jammu and Kashmir”.

Many constitutional experts say the provision that allows Article 370 to be altered by presidential order requires the consent of the constituent assembly of Jammu and Kashmir and is therefore void because the assembly was dissolved in 1956.

“This clearly means that it [Article 370] cannot be revoked, because the only body which could have recommended it has ceased to exist,” said Yogendra Yadav, a political analyst.

“There is no Constituent Assembly. That clearly means that it cannot be revoked because the only body which could have recommended it has ceased to exist. Even if you change the meaning and say it is tantamount to the Legislative Assembly of the state, even then the state assembly does not exist.”

A challenge could be brought to the Supreme Court, which would likely reject the presidential order, experts say.

“The process by which New Delhi has scrapped the preferential status accorded to [Jammu and Kashmir] by the constitution and split J&K into two union territories is constitutionally vulnerable,” said Aman Hingorani, a lawyer and expert on Kashmir constitutionalism.

Read: ICJ condemns legislative steps taken by India in Kashmir, says 'all eyes on Indian SC'

'A plan to crush identity of Kashmiris?'

Critics have already likened Kashmir’s proposed new arrangement to the West Bank or Tibet, with settlers — armed or civilian — living in guarded compounds among disenfranchised locals.

“The decision [to split the region] will reduce Kashmir to a colony,” said Noorani, adding: "Kashmiris will oppose the Hindu feeling in the region.”

Dibyesh Anand, a social scientist at the University of Westminster, said “the fear of settler colonialism is not a specter but a reality, given the approach of both the government and a large number of Indians”.

Anand said there will a major transformation of the socio-economic landscape in Kashmir, where Hindu Indian settlers will be “presented as patriotic pioneers braving Kashmiri Muslim resentment”.

Human rights activists and residents of the troubled state have long feared such a move could destabilise the region and plunge it into chaos by redrawing sectarian lines.

Still, the main worry for many is that the central government’s actions will set in motion a plan to crush the identity of the people of Kashmir.

Indian census data puts the total population of the occupied part of Jammu and Kashmir at 12.5 million, about 68% Muslim, 28% Hindu and just under 1% Buddhist. Within the state, Kashmir is about 94% Muslim while Jammu is about 63% Hindu and 33% Muslim.

The remote mountainous Ladakh region has a population of just 274,289 people, with 46% Muslim and about 40% Buddhist.

Before the region’s special rights were revoked, New Delhi needed the regional government’s approval to apply all other laws — except in defense, foreign affairs, finance and communications.

Turning Kashmir into a union territory means the central government will gain much more control over the area’s affairs, including its courts. Electoral constituencies will be reorganised using 2011 census figures. This could further inflame the region if more power is shifted to Jammu, where Modi and his Hindu-nationalist party enjoy strong support.