Kashmir: The impacts of the revocation of article 370

There has been an upsurge in protest and violence in Indian-administered Kashmir since July 2016.

The trigger was the killing of Burhan Wani, the leader of the armed group Hizbul Mujahedin by the security forces in that month.

There have been numerous clashes between the Indian and Pakistani military across the ‘Line of Control’, as the border between Indian-administered and Pakistan-administered Kashmir is called.

Incursions by armed groups into Indian-administered Kashmir from Pakistan-administered Kashmir have also continued. In February 2019, more than 40 Indian soldiers were killed in an attack in Pulwama.

On 5 August 2019, the Indian Government suddenly announced the revocation of Article 370 of the Constitution, which grants the state of Jammu and Kashmir considerable political autonomy.

The Government says this is a long-overdue measure that will help to stabilize the situation by integrating the state fully into India. But there are fears that this move will only add fuel to the flames.

Implications of revoking Article 370

Article 370 was added to India’s Constitution in 1949. It allows Jammu and Kashmir to have its own constitution, a separate flag, and independence over all matters except foreign affairs, defense, and communications. This autonomy has been greatly eroded in practice over recent decades.

During recent national elections, which it won decisively, the Bharatiya Janata Party (BJP), led by prime minister Narendra Modi, promised to revoke Article 370. Except for one clause to which the Government does not object, this happened by presidential order on 5 August.

A Bill has also been rapidly approved by both Houses of Parliament splitting the state of Jammu and Kashmir into two federal (also known as Union) territories.

One will be called Jammu and Kashmir, which will have a state legislature. The other is Ladakh, which will be ruled directly from New Delhi.

The revocation of Article 370 extends to a key provision added under it, known as Article 35A. This gives special privileges to permanent residents, including state government jobs and the exclusive right to own property in Jammu and Kashmir.

It is intended to protect the state’s distinct demographic character as the only Muslim-majority state in India. Others, including the BJP, view it as discriminatory against non-Muslims and harming development. It was introduced in its current form in 1954 but a similar law was in place prior to Indian independence in 1947.

Thousands of additional soldiers were sent to Jammu and Kashmir prior to the 5 August announcement. A curfew is still in force. At least two senior Kashmir opposition politicians and former Chief Ministers, Omar Abdullah and Mehbooba Mufti, have been detained and there is a communications ‘lockdown’. It is hard to find out what is happening on the ground.

Is revocation legal under Indian law?

Many acknowledge that Jammu and Kashmir’s political autonomy has been greatly eroded in practice since Article 370 was introduced. But is the act of revocation legal under Indian law? There are many differing views.

Constitutional expert Subhash Kashyap, has said the order was “constitutionally sound” and that “no legal and constitutional fault can be found in it.”

But some lawyers assert that constitutional change of this kind requires a two-thirds majority in both Houses of the Union Parliament. Others suggest that it requires the approval of a body – the Jammu and Kashmir Constituent Assembly – which no longer exists, having been abolished in 1957 after the state constitution was agreed.

In addition, the Supreme Court has previously declared that, contrary to those who believe it was only supposed to be a temporary measure, Article 370 has become a permanent provision of the Indian Constitution.

This has led some to question whether it can ever be legitimately revoked.

The Supreme Court will very likely be asked to rule on the constitutionality of the BJP-led government’s latest actions. But this could take some time. The Court is already considering a constitutional challenge to Article 35A.

Many critics of revocation regard it as breaching the contractual basis upon which the Maharaja of Kashmir decided to join India in 1947.

Some lawyers think that this means there could be an international law dimension too.

Could international law apply?

Constitutional law expert Faizan Mustafa has characterized the 1947 agreement (known as the Instrument of Accession) under which the Maharaja of Kashmir decided to join India as one between two sovereign states – in other words, it has the character of an international treaty. He says that by revoking Article 370, the Indian Government can be interpreted as returning Kashmir to its pre-agreement status as a sovereign state.

For him, this might also conceivably lead to the reopening of the possibility of a plebiscite in Kashmir to decide its future.

This is endorsed by UN resolutions upholding Kashmir’s right to self-determination following the first war between India and Pakistan over Kashmir in 1948.

Other experts may disagree with Faizan Mustafa’s interpretation. Lawyers for the BJP-led government will certainly do so. One line of argument will be that the UN resolutions were superseded by provisions for the bilateral resolution of disputes set out in the 1972 Simla Agreement, which brought the third war between India and Pakistan (over the creation of Bangladesh) to an end.

However, Mustafa’s is not a lone voice. There has already been talk of taking a case to the International Court of Justice (ICJ). But given that the Indian Government is very unlikely to accept the ICJ’s jurisdiction in this matter, the court may only be able to respond to a request for a non-binding ‘advisory opinion’.

International reaction

Pakistan’s reaction has been one of outrage. Its foreign ministry was quick to say that India’s move violates UN resolutions.

Its army chief, General Qamar Javed Bajwa said: “Pakistan army firmly stands by the Kashmiris in their just struggle to the very end…We are prepared and shall go to any extent to fulfill our obligations in this regard.” Pakistan’s Prime Minister Imran Khan said: “…incidents like Pulwama are bound to happen again… I can already predict this will happen. They will attempt to place the blame on us again. They may strike us again, and we will strike back.”

On 7 August, Pakistan expelled India’s High Commissioner and recalled its own top diplomat from New Delhi. It also announced the suspension of bilateral trade.

China has said it supports Pakistan’s stance, highlighting its opposition to the establishment of Ladakh as a separate territory ruled from New Delhi. China currently controls territory which India claims as an extension of Ladakh.

The policy of Western governments (including the UK) on Kashmir since the 1950s has been not to get involved in discussions of sovereignty and international law, but simply to urge all parties to resolve the dispute peacefully. There will be heightened anxiety that the revocation of Article 370 might trigger another full-blown conflict between India and Pakistan, both of which are nuclear-weapon states.

The Western response to the revocation of Article 370 has so far been low-key. The US has called on all parties to “maintain peace and stability along the Line of Control”. At the time of writing, there have been no official statements by the UK or EU.

The UN Secretary-General has called for “restraint”.

In 2018 the UN called for the establishment of an international commission of inquiry into human rights abuses since 2016 on both sides of the Line of Control. India rejected this call.