The Expelled and the Excluded: Kashmiris Under India’s New Citizenship Laws

In Kashmir, the state of emergency is quite literally permanent. Indian legislation, from the 1953 “Presidential order” to the 2019 “Reorganization Bill” have been organizing the settler-colonial land dispossession, as well as the severe repression of Kashmiri revolts. 

Let nothing be called natural 

In an age of bloody confusion, 

Ordered disorder, planned caprice, 

And dehumanized humanity, lest all things 

Be held unalterable!

Bertolt Brecht, The Exception and the Rule (1937).

In 2004, news spread in Kashmiri villages along the India-Pakistan border, ominously called the “Line of Control,” that “Divided Kashmiris” were gathering across the banks of Neelam river that runs almost parallel to the border. A ceasefire in the years-old pattern of artillery exchanges between Indian and Pakistani forces had unexpectedly opened this moment. With the roaring river between them, dozens of families looked across earnestly trying to identify their long-separated kin. But they were nervous, for things could quickly take an ugly turn. As one of the world’s most militarized borders — which, for all practical purposes, is a 460-mile-long zone of impunious killing — a simple misunderstanding between the militaries closely watching from their bunkers could trigger a massacre. Yet, for these families — traumatized by a history of ethnic cleansing, forced displacement, and incessant Indian military assaults — this moment to see each other, even from a distance, had arrived after too many years to be missed. 

An Associated Press photojournalist captured the poignancy of the moment in several videos showing people sobbing and consoling each other. They spoke loudly, but the river drowned their voices. They simulated hugs and kisses. Some lifted newly-born children over their heads to share family news. Others, following Kashmiri tradition, sought to rekindle kinship ties by exchanging bags full of dried almonds — except, the bags flung over the roily waters never reached the opposite bank. The moment didn’t last long. After half-hearted attempts to allow divided Kashmiri families to meet, Indian forces restarted shelling and raiding what they claimed were “terror pads,” but which were, in reality, no more than Kashmiri villages, many with refugees from Indian-controlled Kashmir systematically expelled over the previous decades. Especially since Narendra Modi-led BJP came to power in India in 2014, attacks on Kashmiri villages across the Line of Control increased in frequency and intensity. A past-master at igniting Hindu nationalist passions using spectacular violence against Muslims, Modi projected the assaults as proud achievements of a “New India,” the unabashedly bullying avatar of India. 

Modi’s New India is buttressed by the Hindu-Right Rashtriya Swayamsevak Sangh (RSS), the world’s largest fascist paramilitary. Inspired by Nazism and its own brand of Aryan supremacist ideology, RSS sees Kashmiris, who are mostly Muslims, as squatters on a “Hindu territory.” Their longstanding project has been to expel or subdue Muslims into an invisible minority and settle Indians in Kashmir. While all Kashmiris are enemies in New India’s eyes, Kashmiris living across in border villages are already invisible to them. They are an expendable population that can be raided and shelled without moral compunction. 

As India turned the border into a war zone, in August 2019, the Modi regime violated a 70-year old treaty to annex and territorially break up the state of Kashmir. Along with Articles 370 and 35A, which marked Kashmir’s semi-autonomy and protected Kashmiri citizenship rights, another law called the Jammu Kashmir Resettlement Act of 1982, meant to allow displaced Kashmiris to return, was summarily abrogated. India revoked these laws unilaterally while putting millions of Kashmiris under a military siege and communication blockade. As Indians publicly celebrated these assaults on Kashmiris, Modi’s ministers demanded the annexation of the part of Kashmir under Pakistani control. 

Political theory has often struggled with defining “states of emergency.” In popular conception, “emergency” means exceptional measures arising out of periods of political crises. Yet, there is general ambiguity about whether to understand it from a legal/constitutional or a political point of view.

Given states of emergency have also been declared internationally for “interventions,” the idea has acquired a moral veneer, further blurring its politics from public view. As Italian philosopher Giorgio Agamben points out, however, experts find themselves in the “paradoxical position of explaining legal measures that cannot be understood from a legal point of view, and the state of emergency presents itself as the legal form of that which can have no legal form.” In places like Kashmir that are historically constituted as spaces of exception under colonial occupations and permanently in crisis, the law does not arise out of momentary crises but is meant to reproduce it. Here the state of emergency, to paraphrase Brecht, acts as an “ordered disorder,” in which the colonizer’s law is a “planned caprice” but presents itself as “natural.” 

Right after abrogating laws in Kashmir, India passed the Citizenship Amendment Act (CAA) allowing non-Muslims from Pakistan, Bangladesh, and Afghanistan to acquire Indian citizenship, and specifically excluding Muslims from doing so. Accompanied by Indian Supreme Court-mandated “National Register of Citizens,” which aims to locate and expel undocumented people in India, the new citizenship law is bound to create millions of stateless refugees in South Asia. Modi claimed the CAA would help non-Muslims wishing to leave Muslim-majority South Asian states and was not an assault on secular citizenship. He neither acknowledged the fate of India’s Muslim citizens who have been subjected to extreme violence under his regime, nor those forcibly expelled Kashmiri citizens on whom the doors of return have been permanently shut. 

The fate of divided Kashmiri families tells us, as I show below, that we must understand citizenship through its historical exclusions, and that in contemporary spaces of colonial occupation, the occupier’s law by its very logic reproduces colonial hierarchies. In this essay, I argue that the cascade of legal changes, from Article 370 to CAA, has the RSS’s ideological imprimatur on it, and is particularly devastating for Kashmiris. With the revocation of Articles 370 and 35A as part of the RSS’s settler-colonial agenda, Kashmiris have come under an existential threat as a people. The revocation of the Resettlement Act alongside the instituting of CAA further deems that in Kashmir the expelled must become permanently excluded. The chequered path of the Resettlement Act, in particular, shows how, even before Modi’s new citizenship law, India’s claims of secular citizenship had a hollow ring to it. 

Formalizing an Annexation: Article 370 and the Question of Kashmiri Sovereignty ///

On August 5, 2019, India’s Parliament passed the “Jammu and Kashmir State Reorganization Bill.” Without consent from the people of Kashmir, the Act cleaved the historic state into two downgraded “Union Territories” to be directly controlled by India’s central government. It also took away most of the legislative agency from the people of these “territories.” The Bill was in contravention of the terms of the “Instrument of Accession” signed in October 1947 between India and the last of Kashmir’s Dogra rulers, a Hindu dynasty ruling over a mostly Muslim subject population. It also shattered the last illusions of autonomy India had promised its loyalist clients in Kashmir. To understand these transformations and their impact on Kashmiris, let me trace a short background to the “Kashmir Question” in light of the August 2019 events. 

Typical accounts describe Kashmir as a territorial dispute between India and Pakistan, and unresolvable because the status quo favors a militarily stronger India. Others see it through the Muslim-Hindu prism of the 1947 Partition, and Kashmir as essentially a leftover question from British colonialism — per the Partition logic, a Muslim-majority Kashmir should have become part of Pakistan. Such accounts erase the questions of democracy, economic justice, and popular sovereignty in Kashmir, which were central to Kashmiri political imagination even before India and Pakistan were created, and, since 1931, part of Kashmiri mass movement against the feudal Dogra rule. 

India had no legitimate claim on Kashmir. Yet, two-thirds of Kashmir came under India’s control in 1947 when it invaded and annexed the region. Consequently, the anti-feudal movement in Kashmir became the national independence movement against Indian occupation. The movement was based on the fact that “Accession” did not reflect the popular will of Kashmiris, who would have preferred Kashmir to stay independent. The accession had interrupted Kashmir’s historical progress toward freedom and full sovereignty. Under the Instrument of Accession, India took powers over matters of defense, external relations, and communications in Kashmir, yet even the Dogra ruler understood the arrangement to be temporary, requiring the assent of Kashmiris.

Negotiated in the early 1950s, Article 370 of the Indian Constitution was meant to reflect the limited terms of Accession and guarantee Kashmir’s “autonomy.” Kashmir was to have its constitution, prime minister, president, and flag. Kashmiri leaders, like Sheikh Abdullah, who came to play a prominent role during these negotiations, understood Article 370 to be unchangeable — at least until the final status of Kashmir was determined through a plebiscite which his Indian counterparts had pledged, and which the UN, recognizing the Kashmiri right to self-determination, had called for. For Kashmiris, Article 370 was only a place-holder for that plebiscite-to-come. As it turned out, India also saw Article 370 as a place-holder, but one to be used to formalize the annexation of Kashmir and to be discarded when it no longer served that purpose. 

Despite its contested origins, Article 370 initially allowed Kashmiris some degree of sovereignty. Between 1950 and 1953, for instance, Kashmir was able to carry out a radical land redistribution program called “Land to the Tiller,” which gave tens of thousands of historically-dispossessed Kashmiri Muslims and caste-oppressed Dalits ownership rights over the lands on which they had toiled for generations. But when India backtracked on the plebiscite pledge, Article 370 became a double-edged weapon. On one side, it consecrated the foundational violence that had accompanied India’s control over Kashmir — including military invasion, crushing of the anti-feudal movement, and, as I describe ahead, the ethnic cleansing of the Muslims of Jammu. On the other side, Article 370 became a symbolic hook to the Kashmiri aspiration for freedom from Indian rule. So while India wanted 370 to go to formalize the annexation, Kashmiris wanted 370 to go only to achieve national liberation. 

Kashmir’s sovereignty was always a thorn in the side for the Indian state. In 1953, India arrested Sheikh Abdullah, who was Kashmir’s Prime Minister and until then Nehru’s close friend. Nehru accused Abdullah of conspiring to free Kashmir, but the pressure for his arrest came from the Hindu Right, which demanded “full integration” and an end to Kashmiri autonomy. The Hindu Right assembled a coalition of former feudal and upper-caste elements whose power and privileges had weakened in the aftermath of the Land to the Tiller. After 1953, India systematically eroded Kashmiri autonomy using the mechanism of “Presidential Orders” built into Article 370. It violently suppressed dissent and nurtured pliant client regimes to give Indian institutions control over vast domains of Kashmiri public life beyond the Instrument of Accession. India’s machinations in Kashmir eventually led to mass rebellions, most prominently in 1990, which became the immediate background to the establishment of military occupation in Kashmir. In that year, tens of thousands of Indian soldiers once again rolled into the region, occupying public spaces and imposing emergency laws. 

Land and Citizenship:
Article 35A and the RSS’s Settler-Colonial Agenda ///

The question of citizenship and land was central to popular sovereignty in Kashmir and had hung heavily over the negotiations around Article 370. Under the Dogras, permanent residents of the state were called the “state subjects.” In principle, state subjects could own land and apply for state employment, however, these were privileges granted mostly to upper-caste Hindus. For Muslims, state subjecthood had historically meant subjection to exploitation, including heavy taxes and compulsory forced labor. In calling for secular citizenship, Abdullah saw Land to the Tiller as key to turning landless subjects of the Dogra monarchy into full citizens of Kashmir. As land redistribution progressed in fits and spurts, India had conceded this demand in the form of Article 35A, which allowed Kashmir’s elected Legislative Assembly alone to define permanent residency in Kashmir. Article 35A secured the gains of the Land to the Tiller, preventing non-Kashmiris, especially big Indian companies, from owning Kashmiri land.

As far as the RSS was concerned, however, the ability of Indians to own land in Kashmir was key to Kashmir’s “integration” with India. RSS openly called for setting up settler colonies in Kashmir, starting with the families of Indian military personnel. That is why in “reading down” Article 370 in August 2019, the Modi regime’s main goal was to revoke Article 35A. The revocation formally allows Indian citizens and corporations to settle and own land in Kashmir. Since Kashmir was simultaneously demoted into a Union Territory, India would have exclusive control over how land in Kashmir shall be used. Along with 35A, another 138 laws passed by Kashmir Assembly, mostly about land-use and environmental protection, have been made defunct, and Indian companies are already at work ransacking Kashmiri forests and mineral resources.

No settler colonialism proceeds without expulsion and genocide. Since 1947, RSS and its affiliates had already started the process of expulsion in Kashmir. Accordingly, their politics was centered on two intertwined axes: settling Indians in Kashmir; and, preventing resettlement of Kashmiris they had forcibly expelled. Hence their opposition to Article 35A and the Resettlement Act of 1982, as I explain below.

Jammu Massacre:
The Originary Wound and Abdullah’s Moral Failure ///

In trusting India, Sheikh Abdullah made the cardinal mistake of thinking the British Indian empire’s successor state won’t act as an empire toward Kashmiris. Despite his progressive socioeconomic agenda, Abdullah’s biggest moral lapse during his negotiations with India was ignoring the fate of Muslim state subjects killed or expelled from Kashmir’s southern Jammu province. He had failed to persuade Nehru in 1947 to prevent the ethnic cleansing of Jammu’s Muslims at the hands of RSS and the Dogra army. Suppressed in Indian accounts, the ethnic cleansing in Jammu became the originary wound in the Kashmir story.

About to lose control over Kashmir, Dogra army disarmed and assaulted Jammu’s Muslim residents in August and September 1947. In this, the Dogra army was aided by RSS cadres from India. The programmatic expulsions started in October 1947 when Indian military poured in and the Dogra ruler acceded to India. RSS became further emboldened and the ethnic cleansing of Muslims spiked. Thousands of Jammu’s Muslims were transported in lorries to the surrounding forests and hills and shot. In a matter of weeks, the Muslim majority Jammu became a Hindu majority area.

Reports in British newspapers and a refugee census carried out in Pakistan in early 1948 stated the number of Muslim refugees from Jammu and Kashmir to be about 250,000. Citing a survey of the International Committee of the Red Cross, anthropologist Cabeiri Robinson points out that by June 1949 the number of Muslim state subject refugees had grown to 535,000. A hundred thousand Hindus and Sikhs displaced from Pakistan also made their way to Jammu. Based on a census in Jammu in 1941 and Kashmir government’s Land Committee report of 1951, it was clear that more than 200,000 Muslim state subjects — as British newspapers had feared — had been killed in what came to be called the “Jammu Massacre.” India put the homes and lands of the dead and the expelled under its custody. 

The half-a-million Muslims from 1947 were not the only state subjects of Kashmir expelled. In India-Pakistan wars of 1965 and 1971, 50,000 additional Muslim state subjects were forced out, this time from Kashmir Valley. From 1990 to 2004, India’s counterinsurgency war in Kashmir created further 35,000 Kashmiri Muslim refugees. Around 40,000 Kashmiri Hindu families also left fearing for their lives as the mass protests for Kashmiri independence turned into an armed movement. Muslim refugees ended up in camps in Pakistan-administered Kashmir or informal colonies of urban Pakistan. A conservative estimate would suggest that the migrants and their descendants — who together constitute the “Divided Kashmiris” — number more than a million now.

The Resettlement Act: How India Slowly
Killed Kashmiri Refugees’ Right of Return ///

Decades later, after his rehabilitation in a diminished position as chief minister of Kashmir, Abdullah finally sought to address the question of divided Kashmiris. He had bartered the plebiscite demand for his rehabilitation and lost much credibility in Kashmir as a consequence. Nevertheless, under his guidance in 1982, a Kashmiri legislator Rahim Rather introduced the Resettlement Bill as a “comprehensive road map” for those Jammu and Kashmir state subjects who were forced to leave the state from March 1, 1947, to May 14, 1954, and had been unable to return. The bill faced intense opposition from the Indian government. The legal trajectory of this bill shows how far the RSS agenda had become the Indian state’s position long before Modi came to power.

The Resettlement Bill included provisions specifically meant to ease India’s nationalist anxieties. The returnees were to take an oath of allegiance to both Indian and Kashmiri Constitutions before their permanent residency would be restored. The bill passed in Kashmir Assembly and was sent to Kashmir’s Indian governor, who returned it for “reconsideration.” The Assembly passed it the second time, and the governor, forced by rule, approved. The law came to be called the “Jammu Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Act 1982.”

The law mobilized into action Hindu nationalist parties in Jammu, demanding its annulment. Prime Minister Indira Gandhi, campaigning in Jammu for re-election, gave hostile speeches against the Act. Bhim Singh, a former Dogra princeling and leader of a newly-created Panthers Party, filed a case against it in India’s Supreme Court. BJP’s national president and future PM of India, Vajpayee also challenged the law in court. Abdullah died the same year, leaving no one with a strong enough will to implement the law in the face of Indian opposition. 

Under Article 35A, India had no locus standi in the matter, yet it did intervene. Its Supreme Court kept the case pending for 19 years and stayed its implementation. In 2001, it set up a 5-member constitution bench, only to return it to India’s President. By this time, the Indian counterinsurgency war in Kashmir was in full swing, and Kashmiri governments acted rather more like native collaborators than representatives of their people. 

As the desperation of divided Kashmiri families grew, Kashmir’s government in 2001 half-heartedly argued that the Act was in pursuance of Section 6 of the Kashmir Constitution and the second provision to Article 7 of the Indian Constitution which would allow refugees to return. In 2011, Panthers Party filed another petition to have the act annulled. In August 2016, Indian Supreme Court said it might consider the return of “original migrants,” but not their descendants. The court knew full well that 69 years later only a few of those “original migrants” were alive. In December 2018, a Supreme Court judge contemptuously asked the Kashmir government about the number of applications received for resettlement. The answer was “not a single application,” as the court had never allowed the law to be operationalized. In August 2019, the Resettlement Act, already dead in letter and spirit, finally met its end along with Article 35A.

While the divided Kashmirs had been in a hopeless limbo, India created a set of privileged migrants who were allotted “custodial lands” in Kashmir and granted Indian citizenship. These were mostly Hindu migrants from Pakistan. It is here that Indian state’s historical legal deceit reveals its real intent: as CAA along with the revocation of the Resettlement Act denies citizenship and land rights to the expelled Muslim state subjects of Kashmir, the revocation of Article 35A allows migrant Hindus a permanent resident status in Kashmir.

Emergency and the Settler-Colonial Citizenship ///

As the world struggled with the COVID-19 pandemic in April 2020, India found it appropriate to pass a new “Domicile” law, which not only enables Indians to claim permanent residency in Kashmir but, by opening employment for them in Kashmir, also incentivizes their settlement in the region. Under lockdown — this time for the pandemic — Kashmiris were again denied a voice in the matter. Yet again, an emergency, even a supposedly benign one, has proved not simply to be a temporary suspension of normal laws, but a moment to institute a permanent new reality through colonial law-making. 

India’s conduct in Kashmir since 1947, its revocations of Article 35A and Resettlement Act, and its instituting of the Domicile Law constitute clear violations of the Fourth Geneva Convention’s Article 49, which clearly states that “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. And that, “The Occupying Power shall not deport or transfer parts of its civilian population into the territory it occupies.” 

Over the years, Indian belligerence has worn down Kashmiri border villagers. New citizenship laws and territorial changes effectively extinguish the possibility of a reunion for these families, at least for as long as India controls Kashmir. Perhaps, the Neelam river drowning the voices of divided Kashmiri families was a sign of the times ahead. India has swept these families away in a deluge of settler colonial legality that creates privileged citizens while expelling and dominating others. As Kashmiris face an uncertain future, RSS’s project of taking control over Kashmiri land and denying Kashmiri refugees’ right of return is fast materializing — and behind that project stands the entire majoritarian nationalism in India. ■