Experts question legality of India's changes in Kashmir

• By Mariya Amrayeva, Associated Press
• India's Hindu nationalist-led government has used a presidential order to revoke the special constitutional status of Muslim-majority Jammu and Kashmir state. It 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.

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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.

The Hindu nationalist-led government of Prime Minister Narendra Modi issued a presidential order replacing the words "Constituent Assembly" with "Legislative Assembly." However, for the past year Jammu and Kashmir has been ruled by a governor appointed by New Delhi after the ruling Bharatiya Janata Party pulled out of an alliance with a local Kashmiri party and dissolved the Legislative Assembly in June 2018.

Since there is no state government, or state legislative assembly, the central government and Parliament have taken power to remove the article. Following the release of the presidential order, Parliament introduced a resolution recommending that the president abrogate Article 370.

Then, Home Minister Amit Shah proposed a Reorganization Bill that would break up the state of Jammu and Kashmir into the union territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature).

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IS THIS LEGAL?

Given the absence of the Constituent Assembly, the presidential order cannot change the wording of the article or abrogate it, some experts say.

"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," political analyst Yogendra Yadav said.

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," Hingorani said.

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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 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 Muslim-majority region.