The following is a guest post by Tariq Ahmad, a foreign law specialist in the Global Legal Research Directorate of the Law Library of Congress. Tariq has previously contributed posts on Islamic Law in Pakistan – Global Legal Collection Highlights, India’s Regulatory Approach to Uber, and FALQ posts on Beef Bans in India and Proposals to Reform Pakistan’s Blasphemy Laws.
This post explains some of the controversies surrounding the recent revocation of the special constitutional status of the state of Jammu and Kashmir under article 370 of India’s Constitution, and the repeal of article 35A, which had allowed the state to define permanents residents of the state and certain special rights and privileges attached to such residency. It also includes a brief historical background of the dispute, the legal steps taken to revoke the special status, and legal challenges to that decision.
1. What is some of the history behind the conflict and dispute over Kashmir?Prior to British India gaining independence in 1947 and the partitioning of the region into the dominions of India and Pakistan, the state of Jammu and Kashmir was one of the 565 princely states that were not under the direct control of the British colonial administration and retained a great degree of autonomy to manage their own affairs (except in the area of defense and foreign relations).
The process of partitioning British India was governed by the 1947 Indian Independence Act. Princely states were not directly incorporated in either dominion, and section 7(1)(b) of the Act provided that “suzerainty of His Majesty” over these states had lapsed and its powers had been returned back to them. They were theoretically granted the option to stay independent or accede to either dominion. However, as described in one journal article, “without British forces available for their defense, independence was not a real option for the princely states, many of which were quite small. The states were encouraged by then-Viceroy Lord Mountbatten to accede to one dominion or the other” and did so based on their geographical position, religious identity, or other factors. The ruler of Kashmir, Maharaja Hari Singh, was wavering between acceding to either dominion and choosing to remain independent and neutral at the time, as noted in another article:
Maharaj Hari Singh in Kashmir inherited a unique conundrum: he was a Hindu, but held dominion over a Muslim majority. In addition, his was the only princely state bordering both India and the newly born Pakistan, giving rise to the possibility of accession to either nation. Further complicating the already tense birth of two nations was Maharaj Hari Singh’s open discussion of an independent Kashmir, which only served to confuse and delay the question of the state’s accession.
However, after an uprising against the ruler in Poonch and an invasion by a Pathan tribal militia from Pakistan, Maharaja Singh decided to turn to India for military assistance and executed an Instrument of Accession to India. The accession was executed with the expectation that a plebiscite or referendum would be conducted to determine the final status of the state.
Eventually, regular Pakistani troops became involved and a direct conflict between the two new countries arose until a UN-brokered ceasefire was signed on January 1, 1949. Later that same year a ceasefire line was agreed upon. The northern and western part of the former princely state was administered by Pakistan as Azad Kashmir and the Northern Areas (now known as Gilgit-Baltistan), and the state of Jammu and Kashmir acceded to India. In 1965, Pakistan and India went through a second war over the status of Jammu and Kashmir, but by the end of the conflict the status quo 1949 ceasefire line was maintained. Terms for a plebiscite could not be agreed to by either side and, by 1954, India dropped the option for a plebiscite.
Some territorial gains in the Kashmir region were made by India in 1971 during the war between the two countries over the secession of East Pakistan (present day Bangladesh), which ended with the signing of the Simla Agreement on July 2, 1972. The Agreement stipulated that the countries are to “settle their differences by peaceful means through bilateral negotiations” and prohibited either country from “unilaterally alter[ing] the situation.” Moreover, the 1949 ceasefire line became the line of control – a de facto border between the areas controlled by the respective countries.
Over the years, the region has been embroiled in many border skirmishes, a high altitude war in 1999 (known as the Kargil conflict) between the countries, and a Pakistan-supported insurgency in Jammu and Kashmir that has existed since 1988. Currently, the Indian government asserts that Jammu and Kashmir is an “integral part of India and is a matter strictly internal to India” and any dispute with Pakistan should be resolved bilaterally. Pakistan, on the other hand, takes the position that India’s recent actions are a “violation of the U.N. Security Council resolutions on Kashmir and bilateral Pakistan-India agreements, such as the 1972 Shimla Agreement and the Lahore Declaration” and wishes to internationalize the dispute in a global forum.
2. What was the legal and constitutional status of Kashmir prior to the revocation of article 370?
Article 370 of the Constitution of India is described as a “temporary provision” that grants the state of Jammu and Kashmir a special autonomous status within the Indian union. Under article 370(1)(b), the Union Parliament can only make laws for the state, “in consultation with the Government of the State,” on certain matters that were specified in the Instrument of Accession – namely defense, foreign affairs, and communications. Other matters in the legislative subject lists can apply to Jammu and Kashmir only with the “concurrence of the Government of the State” through a presidential order. Article 370(1)(d) stipulates that other constitutional provisions may be applied to the state from time to time, “subject to such modifications or exceptions” made by the president of India, also through a presidential order, as long as they do not fall within the matters referred to above and except with the concurrence of the state government.
As a result of this status, the state of Jammu and Kashmir enacted its own Constitution, which was formally adopted by a Constituent Assembly on November 17, 1956, and entered into force on January 26, 1957.
However, the most important part of article 370 for purposes of recent developments is article 370(3), which gives the president of India the power to amend or repeal article 370 itself through a public notification (declaring that this article “shall cease to be operative or shall be operative only with such exceptions and modifications”), provided that “the recommendation of the Constituent Assembly of the State” is given before the president issues such a notification.
3. What is the significance of article 35A?
In July 1952, an agreement was made between the then-prime minister of India, Jawaharlal Nehru, and the prime minister of Jammu and Kashmir, Sheikh Abdullah, which called for India’s citizenship law to be made applicable to the state and allowed the state to regulate the rights and privileges of its own permanent residents. This agreement was codified by the president of India, who issued the Constitution (Application to Jammu and Kashmir) Order, 1954 (made pursuant to article 370(1) of the Constitution), which added article 35A to the Indian Constitution, allowing the state of Jammu and Kashmir to define permanent residents of the state and certain “special rights and privileges” attached to such residency, including the power to restrict settlement to the state and acquire immovable property:
35A. Saving of laws with respect to permanent residents and their rights.— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,— (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.
The rights and privileges of permanent residents are laid down in part III of Jammu and Kashmir’s 1956 Constitution. Proponents of the article state that it aims to preserve the identity and demographic makeup of the Muslim majority state. The national governing party, the Bharatiya Janata Party (BJP), promised to revoke the article as part of its election campaign and stated that it would “fully integrate” the state, with demographic change seen as a means of ending the conflict in the state. The party also believes that the article hampers economic development of the state.
4. What steps have been taken to revoke Jammu and Kashmir’s special status?As stated earlier, the entirety of article 370 can be repealed under article 370(3), but this requires a recommendation from the Constituent Assembly of Jammu and Kashmir. However, the Constituent Assembly was dissolved on January 25, 1957, without recommending the abrogation of the article. Several decisions by the High Court of Jammu and Kashmir and the Supreme Court of India (including State Bank Of India vs Santosh Gupta And Anr) have held that, despite it being referred to as a “temporary provision” in the marginal note, the article “will continue to be in force” and has effectively acquired a permanent status in the Constitution.
On August 5, 2019, the president of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019, C.O. 272, pursuant to article 370(1) of the Constitution of India. Constitutional lawyer Gautam Bhatia states that this “constitutes the basis for everything that follows.” The order stipulates that, with the “concurrence of the Government of State of Jammu and Kashmir,” “[a]ll the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir.” Moreover, since the government could not directly rely on article 370(3) to abrogate other articles, it sought to use its powers under article 370(1) to amend article 367, the interpretation clause of the Constitution, so that references to “Government of the State [Jammu and Kashmir]” in article 370 would be construed as the governor of Jammu and Kashmir (§ 2), and the expression “Constituent Assembly of the State” in article 370(3) will be read as referring to the current legislative assembly of Kashmir. The order also stipulates that it will “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954,” effectively abrogating article 35A as well.
On the same day, India’s upper house of Parliament passed a Statutory Resolution recommending that the president of India abrogate most of article 370 pursuant to article 370(3). The next day, on August 6, the president implemented the resolution and revoked Jammu and Kashmir’s special status through Presidential Order C.O. 273, which stated that, as of August 6, 2019, “all clauses of the said article 370 shall cease to be operative,” and that “[a]ll provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir.”
During the same period, the Parliament of India also passed the Jammu and Kashmir Reorganisation Act, 2019. It passed the upper house on August 5 and the lower house the next day and received presidential assent on August 9, 2019. As noted by a Lawfare blog post,
[t]he goal of this legislation was to reorganize Jammu and Kashmir from being one state—autonomous or nonautonomous—into two union territories (units of governance that are always under direct national control) (¶3–4). One union territory, which would include the Kashmir Valley, would have a legislature, whereas the other, Ladakh (a mountainous region bordering China that has also seen some border skirmishes), would be without a legislature.
The government claims that the revocation was carried out for the “economic development and growth” of the state.
Aiming to avert unrest in the state and prevent protests, the government subsequently cut landline, mobile, and internet communications, and political leaders and activists were arrested under the Jammu and Kashmir Public Safety Act. Reuters reported that, according to a government report dated September 6, more than 3,800 people were arrested, though about 2,600 have since been released. Curfews and lockdowns were also imposed. Reports from late August and early September indicate that India has eased some of the restrictions, including those on daytime movement, and “some landline phone connections have been restored.”
5. Are there any legal challenges being considered by India’s courts?The revocation of article 370 faces a number of legal challenges, according to lawyers and legal experts. First, there is doubt as to whether the concurrence of the government of the state of Jammu and Kashmir has been received. For the past year, the state has been under direct presidential rule under article 356 of the Constitution after the BJP withdrew from an alliance with a regional party and the governor of the state dissolved the state assembly. According to one lawyer, “the Governor is a representative of the Central Government – like the President. In effect, therefore, Presidential Order 272 amounts to the Central Government taking its own consent to amend the Constitution.” Another objection is that article 370(1)(c) (“this Article shall apply in relation to that state”) prevents the president from using his power of amendment in the Constitution (as applicable to Jammu and Kashmir) to amend article 370 itself, even if it is done indirectly. The normal amendment procedure under article 368 would have to be utilized.
According to news reports, the Supreme Court of India is hearing fourteen public interest litigation petitions on the issue of Jammu and Kashmir. Some of the petitions relate to challenging the abrogation of article 370 and Jammu and Kashmir’s special status. The Court is also hearing a number of petitions “that demand an end to restrictions on movement and communication imposed in the Kashmir valley.” On August 28, 2019, the Supreme Court of India stated that a five-member bench will hear the petitions that have been filed to challenge the validity of the government’s decision to repeal the special status given to Jammu and Kashmir under article 370.
On September 16, 2019, according to news reports, the Supreme Court agreed to accept the petition filed by the Jammu and Kashmir People’s Conference (JKPC), a state political party, challenging “the President’s Rule imposed in the state and abrogation of provisions of Article 370,” but declined to entertain any new petitions challenging the order related to article 370. The chief justice of the Supreme Court is also reported to have stated that “[w]e direct Jammu and Kashmir to make the very best endeavor to make sure normal life returns” after a panel of three judges heard several petitions relating to the state.
This week, on October 1, 2019, it was reported that the Court started hearings on the above matter but granted the central government 28 days (until November 14) to reply to all Jammu and Kashmir-related petitions. This has been met with opposition from petitioners as the deadline for implementing the reorganization of the state is October 31. One advocate for the petitioners raised his concern that the “process will be irreversible and the petitions must not be rendered infructuous.”