Experts question legality of India’s changes in Kashmir

What just happened?

Parliament in India has approved a proposal by the Hindu nationalist-led Government that strips statehood from Jammu and Kashmir, its only Muslim-majority state, splitting the region into two union territories after revoking its special rights under India's Constitution.

What is the impact of this move?

Although India has redrawn its map many times since gaining independence from the British in 1947, the decision to strip statehood from Jammu and Kashmir is likely to raise tensions in the already volatile Himalayan region. India and Pakistan both claim the territory in full and administer portions of it. India's action will further entrench the idea of Hindu-majority rule espoused by Prime Minister Narendra Modi's Bharatiya Janata Party (BJP).

What is Kashmir’s special status?

Article 35A of India’s Constitution permitted the local legislature in Indian-controlled Kashmir to define permanent residents of the region. The article came into being in 1954 by a presidential order under the Constitution’s Article 370, which granted special autonomous status to Jammu and Kashmir state. Article 35A forbade Indians from outside the state from permanently settling, buying land, holding local government jobs or winning education scholarships in the region. The article, referred to as the Permanent Residents Law, also barred female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extended to such women’s children. India's Hindu nationalistled Government has used a presidential order to revoke Article 370, which means 35A has dissolved.

Could the move be challenged?

Clause 3 of Article 370 of India’s Constitution states that the president can make changes to the article or abrogate it only with the consent of the Constituent Assembly of Jammu and Kashmir, which dissolved itself in 1957 after it drafted the state's own constitution, says Aman Hingorani, a lawyer and expert on Kashmir constitutionalism. Given the absence of the Constituent Assembly, the presidential order cannot change the wording of the article or abrogate it, according to some experts. A challenge could be brought to the Supreme Court, which would likely reject the presidential order, legal experts say. “The process by which New Delhi has scrapped the preferential status accorded to [Jammu and Kashmir] by the constitution and split Jammu and Kashmir into two union territories is constitutionally vulnerable,” political analyst Yogendra Yadav said.

What happens next?

The revocation of Article 370 means that Jammu and Kashmir will be largely run by the central Government. Territorial autonomy has largely vanished. With the proposed bill passed by Parliament late on Tuesday, Jammu and Kashmir will become a union territory and the third part of the state — the region of Ladakh — will become a second union territory. Jammu and Kashmir will no longer fly its own flag. The Indian national flag will take its place. With Article 370 revoked, Article 35A, which prohibited outsiders from buying property in the state, has dissolved. Now, Indians from the rest of the country can purchase property and apply for government jobs. Some fear this may lead to a demographic and cultural change in the Muslimmajority region.