The BJP has marched into a legal bind over Kashmir's accession to India

On August 5 2019, while Kashmir was under complete lockdown, the Indian government led by the far-right nationalist Bharatiya Janata Party (BJP), unilaterally, in a series of political manoeuvres, scrapped the special status of Jammu and Kashmir, a UN-recognised disputed region between India and Pakistan.  

India increased its offensive on Kashmir by recruiting tens of thousands of additional armed forces, taking the number to 750,000 soldiers. Kashmir has been put under a complete communication blackout for the last 18 days and counting. There have been about 4,000 arrests, including children, and many are detained without any charges. 

The scrapping of Kashmir’s special status meant that pledges made under Article 370 and 35A of the Indian Constitution no longer apply and that Kashmir comes under the direct rule of New Delhi. This change also made the state flag, the Constitution of Jammu and Kashmir 1957 and hundreds of state laws redundant, and brought Kashmir to a political, administrative and judicial standstill. 

Many, including Indian economist and philosopher Amartya Sen, have called the BJP's actions unconstitutional as it undermines India’s status as a democracy. The BJP’s unlawful actions can simply be understood as a process of implementing the ideology of its founding father Syama Prasad Mukherjee, who wanted to create an undiluted Hindutva in India. 

Before scrapping the special status of Kashmir, the Jammu and Kashmir (J&K) State legislative assembly was not consulted, which was a requirement under Article 370(3). Kashmir’s legislative assembly was dissolved in June 2018, after the coalition between the Peoples Democratic Party and BJP dissolved. 

Kashmir was put under Governor Rule and later under Presidential Rule. There was no elected government in J&K; however, the Presidential Order 2019 paradoxically posits that the governor shall exercise the powers of the legislative assembly and make recommendations to the president in relation to Article 370. 

To make ends meet, the 2019 Presidential Order further amended the term 'Constituent Assembly' to mean 'Legislative Assembly' of the state. This was necessary because Article 370 (3) states that Article 370 can cease to operate by a presidential order but only on the recommendation of the 'Constituent Assembly'. 

For this reason, Article 367 of the Indian Constitution is also amended by adding: “In proviso to clause (3) of Article 370 of this Constitution, the expression ‘Constituent Assembly of the State referred to in clause (2)’ shall read ‘Legislative Assembly of the State’.” 

The trail of constitutional modifications is unconstitutional because Kashmir was already under 'presidential rule' and there was no possibility of acquiring state agreement as claimed in Order 2019.

The immediate consequence of scrapping the special status of Kashmir reopens the historically unresolved issue of the legal validity of accession of Kashmir to India under the Instrument of Accession (IOA), signed on October 26 1947. It was this agreement that was the basis of the relationship between India and Kashmir. 

As history informs us, at the time of partition of British India, J&K was a Princely State that, by not joining the dominions of India or Pakistan by August 15 1947, became independent. 

The IOA guaranteed the special status of people of J&K and the Maharaja Hari Singh acceded to India ceding only three jurisdictions to New Delhi: defence, communications and foreign affairs. The rest were to be under Kashmir’s, independent, administrative control. This was upheld in the Indian constitution through Article 370. 

In order to govern the state, the Kashmir Constituent Assembly was formed and the Constitution (Application to Jammu and Kashmir) Order 1954 (Order 1954) was passed to execute the 1952 Delhi Agreement in Kashmir and extend Indian citizenship to its 'permanent residents’. This also led to the creation and application of Article 35A of the Indian constitution which primarily protected Kashmir residents' rights in relation to immovable property and employment.

As early as 1948, the legal validity of the IOA was questioned by the legal advisor to the British Foreign Office, Sir Gerald Fitzmaurice. 

He wrote in his legal opinion that accession was not capable of finally settling the status of Kashmir. It was because: (1) the Maharaja was not a free agent at the time of the accession to India (October 26 1947) as his actions were inconsistent with Kashmir’s obligations to Pakistan, because the Maharaja had signed the Standstill Agreement with Pakistan via telegrams dated August 12 and 15 1947; (2) he was not in proper control of his state as there were uprisings against his rule and as such he could not, as he had undertaken to do, ensure that due effect was given to the accession in his State; and (3) the acceptance of accession by Mountbatten was conditional to a decision of the people.

It is clear that the 72-year unresolved Kashmir question is accepted as an internationally recognised territorial dispute between India, Pakistan and now China. When India took the Kashmir dispute to the UN in 1948, the international community through various Security Council Resolutions - such as SCR 91 and 122 - clearly accepted that the future shape and affiliation of the whole or any part of Kashmir should be decided by an exercise in the right to self-determination by the Kashmiri people. 

Clearly, the parties to the Kashmir dispute, under the rule of estoppel within international law, are barred from altering this legal position by any unilateral actions. 

UN Secretary-General Antonio Guterres has stated that India should not take any unilateral steps to nationalise this international issue. On August 16 2019, concerned with the humanitarian crisis prevailing in Kashmir, the Security Council convened a closed-door meeting on Kashmir and urged India not to take unilateral action.

By scrapping Article 370 and bifurcating the state (J&K with the legislature and Ladakh province without it), the BJP government in Kashmir has re-opened the question of the legal validity of the accession of Jamme and Kashmir. 

Indian unilateral actions will also affect its regional cooperation with its nuclear neighbours China and Pakistan. 

Clearly, India is playing a destructive role for regional peace and security. Indian actions also ended the future of mainstream politics in Kashmir as its political loyalists have been imprisoned. 

Unfortunately, Kashmir has been pushed into a new era of unabated human rights violations as India will now openly control it through martial law and military might.