Asia Pacific

Removal of Kashmir's special status may face legal challenges, Indian lawyers say

Reuters, AP

India’s move to strip Kashmir 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.

New Delhi’s action also provoked condemnation in Pakistan, which has disputed sovereignty over Kashmir with India for decades. 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, which grants special status to Jammu and Kashmir state and allows permanent residents rights to property, state government jobs and college places.

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 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 fulfill the requirement?” said senior Supreme Court advocate Akhil Sibal. “That to my mind would be the legal fault line.”

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 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 the Buddhist-majority but sparsely populated mountainous territory of 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.

Parliament passed the bill to strip statehood on Wednesday as an indefinite security lockdown kept most of the region’s 7 million people in their homes and in the dark about the changes.

The Modi government’s ideological mentor, the right-wing Rashtriya Swayamsevak Sangh organization, praised the bill, describing it as “brave” and “necessary” for the national interest.

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 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.”

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 socioeconomic 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 destabilize 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 Indian-controlled part of Jammu and Kashmir at 12.5 million, about 68 percent Muslim, 28 percent Hindu and just under 1 percent Buddhist. Within the state, Kashmir is about 94 percent Muslim while Jammu is about 63 percent Hindu and 33 percent Muslim.

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

Residents of the Buddhist enclave have cheered India’s move to hive it off from Jammu and Kashmir state, a change that could spur tourism and help New Delhi counter China’s influence in the contested western Himalayas.

Beijing, though, criticized the announcement. In a statement on Tuesday, China said the decision was unacceptable and undermined its territorial sovereignty.

China and India still claim vast swaths of each other’s territory along their 3,500 km (2,173 mile) Himalayan border. The Asian rivals had a two-month standoff at the Doklam plateau in another part of the remote Himalayan region in 2017.

“The fact that India took this move … can be seen as one way that India is trying to counter growing Chinese influence in the region,” said Sameer Patil, a Mumbai-based fellow in international security studies at the Gateway House think tank.

In a statement, Chinese Foreign Ministry spokeswoman Hua Chunying said China contests the inclusion of what it regards as its territory on the Indian side of the western section of the China-India border.

“India’s unilateral amendment to its domestic law, continues to damage China’s territorial sovereignty. This is unacceptable,” Hua said.

In response to a question about Hua’s statement, Indian Foreign Ministry spokesman Raveesh Kumar said Tuesday the Ladakh decision was an internal matter.

“India does not comment on the internal affairs of other countries and similarly expects other countries to do likewise,” said Kumar, without directly mentioning China.

By announcing it would turn Ladakh into its own administrative district, the Indian government fulfilled a decades-long demand from political leaders there. Ladakh locals were tired of being hurt or ignored because of the many years of turmoil in the Kashmir Valley resulting from separatist militant activity and the Indian military’s moves to crush them.

Local politicians and analysts expect the change to bring Ladakh out of the shadow of Kashmir. It could also help the area pocket more government funding as it seeks to build up its roads and facilities to lure tourists.

“We are very happy that we are separated from Kashmir. Now we can be the owners of our own destiny,” Tsering Samphel, a veteran politician from the Congress party in Ladakh, said on Tuesday. He added the area felt dwarfed by Jammu and Kashmir — which is a majority Muslim area — and that the regions had little in common culturally.

In Ladakh’s city of Leh on Monday, members of Modi’s ruling Bharatiya Janata Party danced in the streets and distributed sweets.

Ladakh will be governed by a centrally appointed lieutenant governor, handing New Delhi stronger oversight over the area.

However, while Ladakh will become a union territory, it will not have its own legislature — a sore point for some locals.

“Hopefully we will be getting that also, slowly,” said Samphel, 71, adding that local politicians would put that demand to New Delhi.

Ladakh’s economy, traditionally dependent on farming, has benefited from tourists visiting ancient monasteries and trekking up mountain peaks.