The movement for national Self-determination as an anti-thesis to colonialism reached its climax post World War II. However, there are some nations like Kashmiris and Palestinians, entitled to self-determination yet lingering under the ghastly shadows of colonialism or more aptly settler colonialism. Characterized by oppression and ascendancy over the natives, colonizers’ motivation to rule is driven by enslaving the indigenous people to work for colonizers while settler colonialism is driven by displacing the natives from their own land. In this sense, Indian policies in Indian Illegally Occupied Jammu and Kashmir (IIOJK), since 5 August, 2019 with the abrogation of Article 35A of Indian Constitution comes more under the purview of settler colonialism than the classical category of colonialism. The process which unleashed with Article 35A’s abrogation highlights the crucial role of law in facilitating the erasure and elimination of indigenous communities in settler colonial projects, in this case IIOJK. In this regard, law not only establishes and re-establishes the allocation of land and resources but also controls the distribution of violence by the oppressive Indian settler regime.
As 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 indigenous people 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. However, if one is to analyse the pattern of Indian rule in IIOJK since partition; military impunity, arbitrary detention and displacement reveals how the settler colonial mindset animated India’s relationship with Kashmir long before the events of 5 August.
It also started the process of altering Kashmiri identity by displacing them from their own land and reducing them to a minority. Thus, in settler colonialism, tinkering with law serves not only as a displacement tool but also as an identity marker. Article 35A vested Kashmir’s legislative assembly with the sole authority to define permanent residents. Hence, IIOJK’s local government was able to protect and confine the special privileges such as the ability to purchase land to permanent residents only. Resultantly, only Kashmiris could own property in a region that India has long claimed as its own. In revoking Article 35A, Indian government unearthed a fear that Kashmiris had been wrestling with since Independence: that India would settle non-Kashmiris in the region to dilute regional ethnic and religious composition.
An example of setting new Hindu identity in the occupied region is the Amarnath pilgrimage through increased institutional support. Recently, the pilgrimage has attained new fervor, designed to make Kashmir a place non-Kashmiri Hindus can feel entitled to, and claim it as their own. It affords them the intellectual space to reimagine a Kashmiri identity that excludes its Muslim population. Militarization in the region has gained currency to such an extent that Human rights groups estimate that there is 1 armed person for every 17 civilians and roughly 7 armed personnel to every square kilometer of land in the region, making Kashmir as one of the world’s most densely militarized regions. These facts also bring down the Indian chant of increasing militancy and rationale of more troops’ deployment in the region. Given the extent of militarization, it is no wonder that the region is rife with human rights abuses.
The legal aspects of Kashmir issue as the most significant element in the settler colonial toolkit, helps in propagating Indian colonizers to do away with the basic rights of Kashmiris. In the wake of international community’s silence, it is pertinent we must not forget our Kashmiri brethren in their quest for self-determination. In addition to building the case of Kashmir on normative foundations of international human rights law, establishes the understanding of the issue on legal basis as a way forward in recognition of the issue in the first place, then its resolution.
