On August 5, 2019, the Indian government revoked the autonomous status of Jammu and Kashmir1 by abrogating Articles 370 and 35A of the Indian Constitution.2 Although many saw Article 370 as largely symbolic, Article 35A of the Constitution had a practical function for preserving Kashmiri identity. Article 35A vested Kashmir’s legislative assembly with the sole authority to define “permanent residents.” Significantly, the local government was able to affix special privileges — such as the ability to purchase land — to permanent residents. The effect was that only Kashmiris could own property in a region that India has long claimed as its own. In revoking Article 35A, the Indian government unearthed a fear that Kashmiris had been wrestling with since Independence: that India would recruit non-Kashmiri settlers to dilute the region’s ethnic and religious makeup.
August 5, then, marked a critical turning point in the Kashmir dispute. Although the colonial lens has been applied to Kashmir in the past, the abrogation suggests that the settler colonial lens may be more fitting. Settler colonialism is premised on the recruitment of a settler class whose goal is not only to occupy indigenous land but also to eliminate the indigenes who stand in their way. Thus, as non-Kashmiris flood the region as new residents, India’s identity as a settler state comes to the fore.
The law often plays a crucial role in facilitating the erasure and elimination of indigenous communities in settler colonial projects. Exploring features of the post-Partition legal regime — especially military impunity, arbitrary detention, and displacement — reveals how the settler colonial mindset animated India’s relationship with Kashmir long before the events of August 5th.
This Note uses settler colonial theory to explain how the August 5 abrogation came about. It begins by laying out a theoretical framework for understanding settler colonialism. Next, it contextualizes and documents the legally momentous events of August 5, 2019, highlighting both the thwarted promises of Kashmiri autonomy and the growing settler colonial desire to control Kashmir and its land. It concludes by analyzing the legal regime that facilitated the full emergence of the settler project today. While August 5 may have been the tipping point for the settler colonial project in Kashmir, it was in no way the start.
I. Settler Colonialism as a Lens
For some, August 5 will join the unfortunate list of days of colonial and “post-colonial” violence: Australia Day, Waitangi Day, Yawm an-Nakba, and Columbus Day.3 Scholars and commentators fear that abrogation of Articles 370 and 35A will precipitate India’s “settler colonial project” in Kashmir: India can now recruit non-Kashmiris to dilute the region’s predominantly Muslim population.4
Settler colonial studies is a relatively new field of interest in post-colonial literature. Traditionally a school of anthropological and political thought, settler colonialism has often been applied to dissect the struggles of indigenous communities in the United States, New Zealand, and Australia.5 Scholars have also extended the framework to explain the twentieth-century settler projects waged against Palestinians.6
Colonialism and settler colonialism are distinct, yet intertwined, modes of oppression. While both entail migration and a relationship of ascendency, their ultimate desires are fundamentally different.7 Colonizers say, “[Y]ou, work for me,” settler colonizers say, “[Y]ou, go away.”8
Classic colonialism is “a system of domination” facilitated by territorial acquisition.9 The colonizers, in dominating an indigenous majority, act to fulfill the interests of their distant metropolis.10 Their goal is not to stay in their newly sought territory, but rather to exploit profits to “sustain the permanent subordination of the colonised.”11
The primary objective of settler colonialism, by contrast, is to permanently occupy the colonized territory: settler states recruit settler classes that “bring with them a purported sovereign prerogative to establish a new state on someone else’s land.”12 To sustain their dominion, settler states — with the help of a local administration13 — will spin narratives of a unique cultural identity, create independent structures of law and order, and rely on both military and economic power.14 Law, in particular, often cements and expands a settler colonial project.15 The law not only establishes and reestablishes the allocation of land and resources but also controls the distribution of violence in a settler regime.16
In settler colonialism, territory is fetishized.17 Land is the object of desire; the place where settlers can imagine a society of their choosing on land perceived as their own.18 In the heat of this desire, settlers rationalize the elimination of the indigenous who complicate the realization of their imagined polity.19 It is the synchronization of these forces that gives the project its distinctive feature: replacement.20
To replace is to eliminate the indigenous population. This replacement is driven by the “logic of elimination.” The “logic of elimination,” famously coined by Professor Patrick Wolfe,21 does not necessary entail violence. To eliminate the indigenous equally includes displacement, forced assimilation, and the induced disappearance of indigenous heritage and institutions.22 Whereas classic colonialism is marked by a vicious cycle where the freedom of the colonized is perpetually postponed, true settler colonialism will “extinguish itself,” so there is no indigenous community to stand in distinction from the realized settler one.23 The indigenous identity, unlike the colonized one, is entirely dispensable.24
II. The Denial of Autonomy
To understand the nature of the abrogation, one first needs to understand the autonomy promised to Kashmiris in the aftermath of the Partition of British India. This Part details that history, noting not only how Article 370 came to be but also how it was subsequently whittled to a legal fiction. It shows that Kashmir’s autonomy was hollowed by no small coincidence — a growing settler desire for Kashmir and its sacralized land facilitated the modern settler colonial project in the region.
A. The Making of Article 370
The recent changes to Kashmir’s legal framework trace back to the region’s contested story in the Partition of British India.25 In August 1947, Jammu and Kashmir was one of the largest “princely states” in the Indian subcontinent.26 The region was culturally and topographically heterogeneous, and uniquely abutted both Indian and Pakistani frontiers.27 It included what is now the largely Hindu, low-hilled region of Jammu; the majority-Muslim valley of Kashmir; and the Buddhist and Shia Muslim, high-peaked Ladakh.28 Notably, the princely state, although predominantly Muslim, was ruled by a Hindu king, Maharaja Hari Singh.29
How would Kashmir’s future manifest in a free Indian subcontinent? For other princely states, the question reduced to one of religion: majority-Muslim states would follow Pakistan and the rest, India.30 However, given its geographic and demographic complexities, Jammu and Kashmir did not fit neatly into this binary.31 Both the Maharaja’s own preference for an independent Kashmir32 and a growing movement of Kashmiris revolting against the Maharaja33 only complicated this arithmetic further.
Thus, when confronted with the question of accession, the Maharaja opted instead for “standstill agreements” that left Kashmir’s sovereignty intact.34 But such agreements did not last very long. In what is a largely contested history,35 the arrival of armed groups from Pakistan forced Maharaja Singh’s hand: he signed the Instrument of Accession in exchange for India’s defensive support.36 Despite assurances for a plebiscite from Indian government officials37 and later the United Nations,38 an inquiry into the desires of the people never took place. Instead, what resulted was the first of three wars between India and Pakistan over Kashmir39 and the drafting of Article 370 of the Indian Constitution.
Article 370 set out to create an expansive, explicit, and sui generis semi-autonomous regime for the state. First, Article 370 curtailed the powers of the central government over Kashmir to three domains: defense, external affairs, and communication.40 Only Article I of the Indian Constitution and Article 370 itself would apply to the state of their own force,41 though other constitutional provisions could be applied through presidential orders, provided they received the “consultation” or “concurrence” of the state government.42 Lastly, it provided that the President could render the article inoperative “by public notification,” but only with “the recommendation of the [state] Constituent Assembly.”43 In effect, Jammu and Kashmir became the only state empowered to block the application of federal legislation by not passing it in the state legislature.44
One of the most critical exercises of Article 370 powers was the adoption of Article 35A to the Indian Constitution via Constitution (Application to Jammu and Kashmir) Order, 1954.45 The order empowered the state legislature to both define the “permanent residents” of the state and attach specific privileges to such residency, including the ability to settle in the state and purchase land and immovable property.46
With this legal regime as the backdrop, the Constituent Assembly adopted its own state constitution to further define the relationship between the region and the government of India.47 Building on the prior order, the Constitution notably limited “permanent residents” to long-time residents in the State.48 The effect of this provision was to safeguard Kashmir from outsiders — a movement initially launched by Kashmiri Hindus hoping to keep “Kashmir for Kashmiris” in the 1920s.49 Although the Constituent Assembly later dissolved, the Supreme Court maintained that Article 370 “continue[d] to be in force.”50
B. A Hollowed Autonomy
Article 370’s “force” proved to be de minimis. Just as the plebiscite was a “pledge not redeemed,”51 Article 370’s promise of autonomy was largely unfulfilled. In the years following Partition, forty-seven presidential orders extended 260 of the Indian Constitution’s 395 articles to Kashmir.52 India removed Kashmir’s unique legal features — like the Prime Ministership.53 Litigation “to remove destructive provisions of the Article 370” is not a present-day anomaly;54 even where litigation was unsuccessful, the article’s dilution was not.55 The federal and state administrative apparatus — from elections to Indian central rule over the state — has largely facilitated this dilution.56 In particular, elections have largely been criticized as “showpiece[s] of [Indian] legitimacy” in Kashmir.57 The introduction of national parliamentary elections eroded the distinction between Kashmir and the rest of India.58 As for state elections, an interventionist central government often uninstalled, reinstalled, and hand-picked local leaders.59 The result? A gradient of “pro-India” state political parties.60
The use of Governor’s61 and President’s62 Rule in Kashmir has repeatedly subjected the region to the political whims of the central government. Both machineries effectively accomplish the same ends63: where the state government is perceived as inoperable, Kashmir is put under central rule of the Indian government via a federally appointed governor.64 Having entered central rule eight times65 and having faced the longest duration of President’s Rule of any state in India,66 central rule has particularly silenced Kashmiri political voices. During Kashmir’s longest spell of President’s Rule, the problematic67 Armed Forces (Jammu and Kashmir) Special Powers Act68 and the Public Safety Act69 were respectively extended to and expanded in the region.70 And indeed, it was the use of President’s rule that enabled the 2019 abrogation.71
As India chipped away at Kashmir’s autonomy, a Kashmiri freedom struggle was amplified. The movement has taken on rich unarmed forms, including protests, boycotts, graffiti, rap, and marking Indian Independence Day as a “Black Day.”72 But it also has had its armed moments, which resulted in the forcible removal and killing of members of the Kashmiri Hindu minority following controversial elections in the late 1980s.73
Parallel to the freedom movement is an Indian-launched counterinsurgency strategy, framed around terrorism and facilitated by the deployment of hundreds of thousands of troops to Kashmir.74 Human rights groups estimate that there is one armed person for every seventeen civilians and roughly seven armed personnel to every square kilometer of land in the region,75 securing Kashmir’s title as one of the world’s most densely militarized regions.76 These numbers stand in stark contrast to India’s estimates of perceived “militants,” which are only in the hundreds.77 The militarization has spawned a valley rife with human rights abuse.78
Ultimately, Article 370 was much more a symbol of Kashmir’s desired autonomy than the mechanism for implementing it. To the extent that Article 370 had more than symbolic weight, it was manifested in Article 35A, which remained largely untouched by the federal government. By safeguarding the rights to owning land, Article 35A served as Kashmir’s primary line of defense against outside interference. To tinker with these articles, then, would be “to set a powder keg on fire.”79
C. Cultivating a Settler Desire
The erosion of Kashmir’s autonomy paralleled — and perhaps stemmed from — a growing narrative of desire for Kashmir. While Kashmir’s land was long “prize[d]”80 for its fertile soil and strategic geographic location,81 this India-crafted narrative had a more intimate fervor. Kashmir — said the first Prime Minister of India — was a “supremely beautiful woman, whose beauty is almost impersonal and above human desire.”82 It is ultimately this desire that has furthered the settler colonial project today.
The lopsided emphasis on Kashmir’s Hindu heritage has supplied non-Kashmiri Hindus with both the reason to desire the region and the justifications to do so.83 In particular, the promotion of the Amarnath Yatra — a Hindu pilgrimage to an ice formation believed to represent Lord Shiva84 — has grown increasingly over the years through increased institutional support.85 Such support has been particularly effective where it has equated the pilgrimage with national pride — where the “yearning for Moksha (salvation)” was also “a befitting gesture of solidarity with . . . soldiers . . . fighting the enemy to defend our borders.”86
By bringing Hindu temples and relics to the fore, the Indian state and its proponents have only fueled the idea that it is Muslim Kashmiris who are the “exogenous ‘Others.’”87 In fact, India has crafted Kashmir’s public identity into a Hindu one, as more and more highly romanticized pilgrimages emerge in the Kashmir Valley.88 Indeed, it was the Amarnath pilgrimage that the state heavily advertised in the months leading up to the abrogation.89 Ultimately, where India is depicted as the Hindu imaginary “Bharat Mata” (Mother India), Kashmir, in India’s eyes, is her head.90
Kashmir’s militarization is designed to make Kashmir a place non-Kashmiri Hindus can feel entitled to claim as their own, and to reimagine a Kashmiri identity that excludes its Muslim population. The Amarnath pilgrimage is a full exercise of militarized tourism, packaged neatly under the title “Operation Shiva.”91 By emphasizing the danger in the Valley with each annual pilgrimage,92 the military is there to remind pilgrims not only that this is their land but also that they can feel safe in it.93 India has similarly used the military in proposals for returning the Kashmiri Hindu diaspora back to the region, suggesting enclosed, heavily guarded colonies equipped with their own amenities.94 This ahistorical vision of a Kashmiri society without Kashmiri Muslims underscores the state’s investment in eliminating the aspects of Kashmiri identity that challenge its settler colonial narrative.
This settler narrative, like most, was still intimately linked to the land, with the Indian state having illegally seized Kashmiri territory well before the abrogation. As of 2018, military forces had illegally grabbed nearly 54,000 acres of land in Kashmir.95 Included in this occupied land is not just strategic borders but civilian infrastructure like hotels, sports stadiums, university facilities, and hospitals.96 Occupied land has also frequently, and perhaps conveniently, overlapped with resource-rich regions, like those known for saffron production.97 Although unsuccessful, the central government had even attempted to transfer forest land to construct temporary shelters and facilities for Amarnath pilgrims.98
India’s settler-like desire has infected every aspect of life in Kashmir. Signs greeting Indian tourists in Kashmir emphasize not only that Kashmir is atoot ang — an “integral part” — of India, but also that it is “India’s crown,” and that to “[l]ove Kashmir, [is to] love India.”99 Development projects, like the Kashmir Railway Project, underscore attempts to further Kashmir’s assimilation into the nation.100 Bollywood cinema has also exploited Kashmir’s landscape for nationalist ends, first portraying it as “a pastoral space emptied of popular unrest or political aspirations”101 and later “chastiz[ing] the Valley” for forgetting this imagined past.102 Those same movies regularly depict romance between the Indian male tourist and the Kashmiri woman103 — a not-so-subtle allegory for assimilation and replacement.
India’s settler desire was most pronounced with the 2014 election, and then 2019 reelection, of the Hindu nationalist Bharatiya Janata Party (BJP). Kashmiris, in BJP’s India, were “contrapuntal symbols — of terrorist violence, illegitimate religious impulses, and sedition — for contriving [their] mythical Hindu nation.”104 Realizing the Hindu nation required the abrogation of Article 370, an explicit promise made by the BJP in their 2019 election manifesto.105
III. A Settler Colonial Project Realized
Before launching their legal attack on August 5, the Indian government waged a familiar psychological one.106 It began with the further militarization of the region.107 Then, the government evacuated thousands of Hindu pilgrims and tourists on August 3, citing a Pakistani-backed terrorist attack.108 Non-Kashmiri students attending Kashmiri universities were also ordered to leave.109 When pressed, Indian officials explicitly assured state political leaders that abrogating Articles 370 and 35A was not in question; any reports otherwise were “rumor mongering.”110 Their assurances, later exposed as lies, launched Kashmiris into a familiar cadence: canceling family events, moving ill family members near hospitals, and stockpiling essentials.111
By August 5, the siege was in full swing. India imposed a curfew and officers patrolled barbed-wired streets.112 Former heads of state and pro-freedom leaders were arrested.113 Both internet and cell phone services were suspended.114 Before India even made its incendiary attack, Kashmir and its people were left in the dark.
With the political backdrop of President’s rule in Kashmir,115 the President of India issued Constitutional Order 272.116 Pursuant to Article 370, the order amended Article 367 — which enshrines the Constitution’s interpretative framework117 — as it relates to Jammu and Kashmir.118 Although Article 370 requires the state government’s concurrence to make such a change,119 the President took the Governor’s consent as a sufficient substitute.120
C.O. 272 had two key consequences. First, it streamlined the process to amend and abrogate Article 370, requiring only consultation with the Governor.121 Second, by superseding122 the constitutional order from which Article 35A germinated, it made Article 35A inoperative.123
The legal changes that flowed from C.O. 272’s groundwork were swift. On August 5, the upper house of Parliament passed a statutory resolution recommending the President of India proceed with Article 370’s abrogation.124 Later that day, Presidential Order C.O. 273 acted upon the recommendation, causing Article 370 to “cease to be operative” and affixing all provisions of the Indian Constitution upon Kashmir.125 In parallel, the Parliament also passed the Jammu and Kashmir Reorganisation Act, 2019.126 The Act fractured the state into two union territories,127 which would be under the direct control of the central government. One union territory included Jammu and the Kashmir Valley; the other, Ladakh.128 Thus, over a few days, the Government of India not only revoked Kashmir’s special autonomous status but also erased its identity as a state altogether. While screams in opposition rang through the chambers of Parliament,129 the deathly silence in Kashmir was more stifling. The entire map of Kashmir had changed without its people knowing.130
On August 15, 2019, India would simultaneously celebrate its seventy-third Independence Day and forcibly hold Kashmiris under lockdown.131 What seemed like a sinister irony became the norm. In the seven months that followed,132 Kashmiris would spend Eid,133 weddings,134 medical emergencies,135 and funerals136 in an eerie blackout. The economic loss — an estimated $2.4 billion — would pale in comparison only to the human one.137 Kashmiri lives were inundated with reported army-instigated torture of children, sexual violence against women, disappearing of young men,138 and arbitrary detention of civilians.139 Twenty-three petitions challenging the abrogation of Articles 370 and 35A are pending in the Supreme Court of India, but the Court’s pattern of avoidance on the Kashmir issue does not bode well for Kashmiris.140
IV. The Legal “Elimination” of the Kashmiri
The use of the settler colonial lens in Kashmir largely emerged in the aftermath of the abrogation. Critical Kashmir Studies have typically focused on the paradigms of illegal occupation,141 armed conflict,142 self-determination,143 and colonization.144 Even then, discussions of the settler colonial model in Kashmir have either focused primarily on a socio-political analysis or given a cursory legal one.145 This Part focuses on the Indian and Kashmiri state law that has facilitated the gradual “elimination” of the indigenous Kashmiri. While the events of the abrogation were critical in making the purchase of land possible for new settlement communities, exploring Kashmir’s post-Partition legal infrastructure reveals how the settler colonial mindset has animated India’s relationship with the region long before the events of 2019. In particular, a military impunity regime, arbitrary detentions, and displacement are key facilitators of the project. In the words of Kashmiri scholars, “5 August was . . . not a beginning, not a diversion, not a rupture,” but the extension of seventy years of mass killings, blindings, torturings, disappearances, and rape,146 all of which advanced the mission to — physically and symbolically — “eliminate” the Kashmiri.
A. Abuse and Impunity
In Kashmir, settler colonial and military machinery have “intertwine[d] with great and familiar intimacy.”147 The latter has ultimately enabed the goal of the former: to erase. Although an official number has never been released, activists conservatively estimate that almost 700,000 members of the Indian army are stationed in Kashmir.148 Intense human rights abuses have flowed from the militarization of Kashmiri soil. From 2008 to 2018 alone, an estimated 1,081 Kashmiri civilians were “eliminated” by security forces in extrajudicial executions.149 Since the start of the pro-freedom uprising in 1989, activists estimate that at least 8,000 Kashmiris have been disappeared.150 These tragedies are compounded by thousands of unknown, unmarked, and mass graves and incalculable cases of torture and sexual violence.151
A regime of military de jure and de facto impunity has perpetuated abuse against Kashmiri bodies. At the heart of this impunity is the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) of 1990. AFSPA in Jammu and Kashmir is modeled off the national Armed Forces Special Powers Act152 and was passed at a time when the state was under Governor’s Rule.153 Similar legal regimes have been enacted in “disturbed areas” across India.154 Although the definition of what constitutes “disturbed” is vague, the determination is the central government’s authority and is not subject to review.155
The legislation emerged in Kashmir following a declaration that the Kashmir Valley had become “disturbed” in 1990, and has applied ever since.156 AFSPA vests officers with sweeping authority: they can use deadly force in instances where they are not at imminent risk.157 AFSPA grants armed forces the broad power to destroy property from which “armed attacks” are “likely” or “attempted” to be made;158 arrest without warrant;159 enter and search without warrant;160 and stop, search, and seize vehicles.161 In short, actions that would otherwise be an abuse both of Indian criminal and human rights law are now simply a “use” of AFSPA.162 Through AFSPA, the Indian state is not only empowered to exert “free and ruthless force”163 against Kashmiri bodies but also is invited to do so within the law.
Notably, AFSPA includes an explicit immunity clause: “No prosecution, suit or other legal proceeding shall be instituted, except with previous sanction of the Central Government” against officials acting under AFSPA.164 The realities of the immunity clause have been devastating. In the last twenty-eight years, neither the Home Secretary nor the Defense Secretary has approved a single prosecution under AFSPA.165 Moreover, there is concern that AFSPA’s immunity has bled into proceedings against police officials, making them nearly impossible to launch.166 Although activists throughout India have challenged the AFSPA’s constitutionality, the Court has held that the army’s powers are not “unreasonable” or “arbitrary.”167
If the impunity regime created by AFSPA does not reveal India’s attempts to silence the indigenous, the AFSPA’s origins perhaps do. AFSPA took its inspiration from a British colonial ordinance — the Armed Forces (Special Powers) Ordinance of 1942 — utilized to suppress the “Quit India Movement” in India’s battle for independence.168 The rationales for the modern-day AFSPA are not far from the colonial ones: upholding the “sovereignty and territorial integrity of India” and combating “terrorist acts.”169 This kind of parallel is not unique to the Kashmir case — “colonial and settler colonial forms often coexist and mutually support each other.”170
In addition to the problems created by impunity, an arbitrary detention regime has also erased Kashmiri voices from civil society. Described with other Indian detention laws as “lawless” by the Supreme Court,171 the Public Safety Act (PSA) enables a preventative detention regime that operates largely outside the typical criminal justice system.
The state government introduced the PSA in 1978, “ostensibly to crack down on timber smugglers” in the region.172 Since then, the PSA has been applied to a variety of perceived “dangers,”173 including the entrance of unauthorized persons into prohibited places,174 the circulation of documents “likely to affect public order,”175 and, of course, individuals who “act in any manner prejudicial to the maintenance of public order.”176 The PSA permits the detention of individuals for one year if they’ve acted “prejudicial[ly] to the maintenance of public order,”177 and for up to two years if they’ve acted “prejudicial[ly] to the security of the State.”178 The detaining official must only be “satisfied” that the facts presented meet this threshold, and no criminal charge or suspicion of criminal activity is required.179
The PSA does not include the traditional protections bestowed by the criminal justice system. For example, detaining authorities can delay communicating the grounds of detention for up to ten days, and even then, authorities have broad discretion regarding which facts they must disclose.180 Detainees are also entirely without access to judicial authority, facing bars on accessing legal representation, judicial review of the grounds of detention, and judicial appeal.181
The only legal remedy for arbitrary detention under the PSA is to petition the high court of the state or the Supreme Court through habeas corpus.182 Unfortunately, habeas corpus in Kashmir is obsolete,183 resulting in the figurative and literal disappearing of Indigenous Kashmiri bodies. At the height of India’s counterinsurgency operation in the 1990s, the concerned relatives of disappeared persons filed thousands of habeas petitions.184 The majority went unheard due to “pervasive patterns of delays, non-compliance with judicial directions by executive and military authorities, and judicial normalization of impunity.”185 Habeas has been no more promising in recent years. One year after the abrogation, over 400 people — including former heads of state, pro-freedom leaders, and lawyers — were detained via the PSA.186
As with AFSPA, the PSA’s rationale illuminates a settler desire for erasure. Formally, the PSA takes a “holistic approach” to “overcome the menace of terrorism and secessionism” that “challenge[s] the integrity and sovereignty of the state.”187 Informally, as described by a former state politician, the aim is to keep recalcitrant Kashmiris “out of circulation.”188
The PSA has not only depicted the Kashmiri as dangerous but also, in collaboration with AFSPA, established a legal “death zone”189 critical to the operation of the settler regime. It is in this zone — where impunity and detention run rampant — that Kashmiris are caged “as existential and demographic threats.”190 The veneer of terrorism-based justifications does little to change this reality. The intense militarization of indigenous soil and the “spatially differentiated policing of populations” suggest that “the ‘terrorist’ stands in for the ‘Native.’”191
While the laws discussed above are animated by the settler colonial logic, Article 35A’s abrogation makes the recruitment of a settler community on indigenous land a reality.192 The abrogation secures “settler colonialism’s specific, irreducible element”: “territoriality.”193 Without Article 35A, India can now use the territory of Kashmir for investment, natural resources, and a new community of residents.
While India continued its clampdown in Kashmir, the downstream effects of the abrogation continued to materialize. The government earmarked land for non-Kashmiri investors194 and planned an investment summit to facilitate the bidding.195 The August 5 abrogation has also paved the way for exploitative resource extraction in the region. Kashmir’s special status ensured that nonlocal businesses were barred from operating in the region without a lease agreement with the government.196 Starting in January following the abrogation, all mining bids were solicited online at a time when internet connectivity was still restricted in Kashmir.197 The result was a “death blow to [Kashmiri] business”198: for the first time, almost seventy percent of mineral extraction contracts in Kashmir were procured by non-Kashmiris.199
The Indian government also introduced a new domicile order200 that expands the definition for residency and allows a new class of non-Kashmiris to move into the region. This legal maneuver mirrored the use of “registration by title” to facilitate the expropriation of indigenous lands in Palestine and Australia.201 The order now permits Indian citizens who have lived in the region for a set period of time to claim a “domicile certificate.”202 The children of those domiciled can also claim their own certificates, even without ever having entered the region.203 These provisions extend to armed forces stationed in Kashmir and their children as well,204 making the hundreds of thousands of armed forces in Kashmir a potentially new class of settlers themselves. By claiming domicile, these non-Kashmiris can now apply for all local government jobs, including those in police or administration, that were previously reserved for Kashmiris.
However, a new land order may have already superseded the domicile laws in importance, having repealed twelve former state land laws and amended fourteen others.205 The order erased Article 35A’s vestiges, largely removing the “permanent residency” clause across Kashmir’s land regime.206 Notably, it did not limit land transactions to newly defined domiciliaries. The law also empowers non-Kashmiris to repurpose agricultural land, which constitutes ninety percent of the region, for nonagricultural purposes.207 Similarly concerning is the government’s ability to designate “strategic area[s]” for military use without the previously required consultation with local government.208 While the full effects of these reforms are unknown, one thing is clear: “J&K is now up for sale . . . .”209
Although the government has justified its actions in the name of development,210 such pretexts have been laid bare in the American regime: “There was never a time when the white man said he was trying to help the Indian get into the mainstream of American life that he did not also demand that the Indian give up land . . . .”211
Mahjoora des sonuy, Mahjoor, our motherland,
baagah chhu nundabonuy, Is the loveliest on earth!
ath lol gatghi baronuy, Shall we not love her best?
gulshan vatan chhu sonuy… A garden is our land!
— Ghulam Ahmad Mahjoor212
This Kashmiri freedom verse, first written in the 1980s, perhaps best evinces the threat that the abrogation poses: the loss of Kashmiris’ motherland. By giving an expanded class of non-Kashmiris access to new forms of livelihood and land, India has made the settlement of a new class of residents viable and attractive. The abrogation of Article 35A and the laws that have followed it are quintessential settler colonial violence, but so too are the legal regimes that came before the abrogation. Fueled by a growing settler narrative around Kashmir, India has long utilized the law to not just colonially oppress Kashmiris but erase them altogether.