case study of kashmir

Unveiling Purpose and Agency in Kashmiri Women’s Participation in Militancy

• October 31, 2023
• Asia Pacific , Security & Conflict

The Kashmir conflict between India and Pakistan traces its origins back to the partition of British India in 1947, marking the beginning of a longstanding dispute that continues to ignite violence and unrest in the region.¹ However, a pivotal turning point emerged in the late 1980s when Kashmir experienced a notable surge in militancy.² Despite numerous efforts to foster peace, including negotiations and ceasefires, finding a lasting resolution has remained an elusive goal.³ One crucial element that has been overlooked throughout these peace-building endeavors is the active participation of women in militancy.⁴ The substantial presence of women in supporting and auxiliary roles within the militant movement has largely gone unnoticed by those striving for peace. The contributions of these women have been undervalued due to prevailing gender stereotypes that deny their agency and decision-making in supporting militancy. Overlooking their agency in militancy has directly translated to overlooking their agency in peacebuilding.

For example, in discussions about Kashmiri women involved in militancy, there is a tendency to overlook their active roles and reduce them to fulfilling maternal duties.⁵ , ⁶ This limited perspective fails to acknowledge the complexity of their engagement. Swati Parashar, a renowned scholar specializing in gender and militancy in South Asia, sheds light on this issue by examining a slogan from the 1990s: “ ay mard-e-mujahid jaag zara, ab waqt-e-shahadat aaya hai  (O holy warriors rise and awake. The time for your martyrdom has come).”⁷ The slogan calls upon holy warriors to embrace martyrdom, while women, assuming various roles, implore men to fight for the cause.⁸ Parashar’s analysis reveals a prevailing narrative that portrays women primarily as sacrificing mothers and their sons as heroic figures, disregarding the fact that not all women involved in the movement have male relatives affiliated with militant groups. By restricting their participation to maternal roles, these representations overlook the diverse experiences and agency of women in the region. To truly comprehend their contributions and challenges within the conflict, it is imperative to challenge and expand beyond traditional gender roles and narratives. By doing so, we can gain a comprehensive understanding of the multifaceted dimensions of their involvement.

Some sources also explore how the absence of organized women’s groups advocating for gender justice and equality in Kashmir has had significant consequences, giving rise to militant-led women’s groups like the Dakhturan-e-Millat (DeM).⁹ These groups hold considerable influence over women’s support and involvement in militant organizations. In her analysis, Manisha Sobhrajani, a journalist based in Kashmir, sheds light on how fundamentalist women’s groups entice Kashmiri women into militant organizations by providing them with community and livelihood resources.¹⁰ Building upon this perspective, Urba Malik, a scholar specializing in gender and identity in the Kashmir conflict, highlights the struggles faced by half-widows, the estranged wives of missing or deceased militant fighters, in her article, “Democracy, Gender, and Armed Conflict: Exploring Women’s Narratives of Resistance in Contemporary Kashmir.”¹¹ Half-widows face numerous challenges, such as the denial of compensation and abandonment by their in-laws and families, compelling many who search for their missing husbands to turn to the DeM for solace and support.¹² As a result of this reliance, they become indebted to the group, eventually becoming involved with the Mujaheddin.¹³ This intricate web of circumstances illustrates the complex dynamics that drive women’s participation in militant activities in Kashmir, revealing the urgent need for organized women’s groups to work towards gender justice and equality to counterbalance the influence of such militant-led organizations. At the same time, it propagates a narrative of women as victims trapped into militancy for survival– portraying their association with militancy as one driven by haplessness rather than conscious ideological reasons.

Similarly, the depiction of Kashmiri women by the Indian security forces often paints a distorted picture, presenting them as passive victims coerced into hiding or supporting militants.¹⁴ According to this portrayal, these women lack agency in their decision-making and hold no ideological sympathy for the militants.¹⁵ Their actions are simply attributed to fear of retribution or violence.¹⁶ This one-dimensional narrative is widely propagated by media outlets, including the internet, TV, and newspapers, which frequently depict these women as being duped into their involvement.¹⁷ This representation was further amplified in the 2000 Bollywood film  Mission Kashmir , where a Kashmiri girl is manipulated by her childhood friend, a militant seeking revenge.¹⁸ Eventually, she cooperates with the police to expose his intentions. This cinematic portrayal reinforces the prevailing image of the Kashmiri woman caught in the crossfire between conflicting ideologies and victimized by the forces surrounding her. However, by reducing their involvement to indirect, involuntary, and circumstantial roles, these representations fail to acknowledge the multifaceted nature of women as conscious political actors. They overlook the complexity of women’s motivations and the diverse range of reasons that lead them to participate in militancy, thus offering an incomplete and limited perspective.

Therefore, this essay aims to bridge the understanding gap regarding women’s participation in militancy in Kashmir by asserting that their involvement is a means of social and political empowerment. It begins by highlighting the marginalization of women in social and political spheres within Kashmir. The essay then explores their auxiliary roles within militancy, arguing that these roles serve as a pathway to empowerment. However, the essay also recognizes the limitations of empowerment within the context of militancy. As a result, it indicates the potential for the government to capitalize on these limitations by establishing alternative avenues that foster female empowerment through non-violent means. By addressing this gap in understanding, the essay contributes to a more comprehensive understanding of women’s portrayal and participation in militancy and offers pathways for empowering women in Kashmir.

Marginalized Voices: Women’s Struggles within Kashmiri Society

In Kashmiri society, women experience marginalization across various aspects of their lives, particularly concerning the gendered consequences of security forces’ misconduct. One significant event that exemplifies this is the Kunan Poshpora incident of 1991, where Indian security forces subjected women in the village to mass sexual assault.¹⁹ Extensive documentation, including survivor testimonies²⁰ and investigations by human rights organizations, underscores the targeted and gendered nature of the violence, revealing the systematic subjugation of women.²¹ More notably though, it is the aftermath of the Kunan Poshpora incident that sheds light on the gendered treatment of women and their subsequent marginalization within society. Apart from the immediate consequences of the violence, the women in the village faced societal backlash and stigma²² as their honor and reputations were called into question due to the assaults they endured.²³ This is exemplified by the experiences of Shakeela Dar, a rape victim who struggled to find a suitable husband for her daughter.²⁴ In interviews with Urba Malik, she recounts how prospective in-laws deliberately provoked, insulted, and mistreated her daughter based on her status as the child of a rape victim.²⁵ These social responses reflect deeply ingrained patriarchal norms that place the burden of responsibility on women, reinforcing gender inequalities and perpetuating their marginalization. The women of Kunan Poshpora continue to suffer from the stigma associated with being from a village where such violence occurred.²⁶ They face immense challenges in their daily lives while concealing their pain and trauma, leading to tragic cases of suicide.²⁷ While it is essential to recognize the experiences of men who may have also suffered mistreatment and human rights abuses in the Kunan Poshpora incident and other instances of security forces’ misconduct, the lived experience of the female survivors of the Kunan Poshpora incident highlights a targeted and gendered impact on women and not men.²⁸ This underscores the unique nature of female marginalization within the context of these incidents.

The subjugation of women in Kashmir is also exemplified by the marginalization faced by half-widows—women whose husbands have gone missing during the ongoing conflict, leaving them in a state of ambiguity regarding their marital status—in Kashmiri society.²⁹ One form of marginalization experienced by half-widows is social stigmatization and isolation within their communities.³⁰ They are often labeled as “unfortunate” or “cursed,” leading to their ostracism.³¹ Within their own families, they are denied inheritance rights and excluded from decision-making processes.³² The experiences of Atiqa and Tahira, two half-widows who were unjustly denied their rightful share in the family property, highlight this exclusion.³³ Despite the existence of inheritance laws that entitle women to a portion of the family estate, male relatives took advantage of their vulnerable position to exploit them and claim the property for themselves.³⁴ This denial perpetuates economic instability and exposes the deeply ingrained gender biases prevalent in Kashmiri society, reinforcing the marginalization of half-widows.

On a more political front, the denial of government assistance based on the alleged associations of their disappeared husbands with terrorism adds another layer to the marginalization faced by half-widows.³⁵ Khalida’s story serves as a vivid example of this struggle.³⁶ After her militant husband disappeared, Khalida faced numerous unsuccessful attempts to secure job opportunities.³⁷ In desperation, she turned to the government’s Special Recruitment Order (SRO) program, which promised job opportunities to all Kashmiri citizens.³⁸ However, Khalida was denied a job through this program.³⁹ When she sought support from her local political representative, Minister Ali Sagar, hoping for assistance with the SRO, she was met with disdain and derogatory comments regarding her husband’s alleged involvement with a militant group.⁴⁰ By denying government assistance to half-widows based on the actions of their disappeared husbands, the authorities contribute to their continued marginalization. This perpetuates a cycle of discrimination that hinders their ability to rebuild their lives and maintain their dignity, further emphasizing the marginalization faced by half-widows in Kashmiri society.

Moreover, the Indian government’s recent revocation of Article 370 in Kashmir, integrating a previously more independent Kashmir more directly under the central government, has further marginalized women in the region.⁴¹ This is reflected in the remarks of politicians who suggested that Indian men could now easily find Kashmiri brides, reducing women to mere objects of desire and reinforcing harmful stereotypes.⁴² Such misogyny did not confine itself to offline spaces but spread virulently across various social media platforms.⁴³ Disturbingly, the removal of Article 370 coincided with a surge in online searches for phrases like “How to marry a Kashmiri woman” on search engines like Google,⁴⁴ further emphasizing the dehumanization of Kashmiri women and reducing them to mere commodities. These demeaning attitudes and the widespread objectification of Kashmiri women highlight the deep-rooted marginalization they face, perpetuating a culture of inequality.

From Grievances to Empowerment: Unraveling the Gendered Dimensions of Female Militancy in Kashmir

When delving into the gendered dimensions of female grievances in Kashmir, it is crucial to examine how these specific concerns influence women’s decisions to join the ranks of militancy. As women assume supportive roles within these movements, their motivation to participate may stem from a desire for increased social standing and empowerment. Within the context of militancy, women contribute by providing vital assistance such as provisions, shelter, secure routes, and medical aid to militants.⁴⁵ Additionally, female wings within militant groups aid the families of combatants, file petitions to search for missing militants, and recruit politically active women from educational institutions.⁴⁶ By assuming these roles, women have gained public trust and credibility within society, a stark departure from their previous confinement to the domestic sphere as homemakers. This transformation is exemplified by Asiya Andrabi, a member of the Mujahideen’s (militant organization) women’s wing, who recounts how senior militants regularly sought her input to mobilize auxiliary support from women before implementing major combat strategies.⁴⁷ Furthermore, Andrabi often found herself approached by widows of the Mujahideen seeking socio-economic assistance.⁴⁸ Through their interactions with both men and women in their communities, women’s engagement in militancy enables them to become trusted figures,⁴⁹ elevating their social status and granting them positions of authority.

Therefore, in exploring the gendered aspects of female grievances in Kashmir and their impact on women’s decisions to participate in militancy, it is possible that women might engage in these movements to seek higher social status. However, it is important to consider alternative perspectives that suggest women primarily take up auxiliary roles due to the predominance of men in direct combat. But even if this were the case, the organized and sustained nature of female participation across Kashmir indicates a broader ambition and a desire for social transformation among women. This can be seen in the long-standing presence of women’s wings in militant organizations such as the Muslim Khawateen Markaz (MKM) and DeM, which have gathered a membership of over 500 women throughout Kashmir over a span of 35 years.⁵⁰ While ideological motivations, familial pressures, and coercion by militants are significant factors for women’s involvement in militancy in Kashmir, it is crucial to integrate a gendered perspective without disregarding other motivating factors. Thus, rather than invalidating any specific motivations, the aim is to add a new dimension that acknowledges the gendered aspects within the broader discussion.

In addition to seeking higher social status, women in Kashmir may participate in militancy as a means to attain political agency and empowerment within a society deeply rooted in patriarchal norms and traditional gender roles. From a political perspective, their contributions to the movement encompass acting as human shields and guards, utilizing burqas to smuggle arms and militants, and providing support during raids.⁵¹ By fulfilling these supportive roles to men engaged in direct combat, they establish themselves as political agents actively contributing to the cause of militancy. This status as political agents is particularly significant in a patriarchal society like Kashmir, where cultural and religious traditions confine women to caregiving roles and limit their involvement in political activities.⁵² Furthermore, women often assist militants by engaging in attacks on security forces and facilitating the escape of militants.⁵³ Employing tactics such as stone pelting, organizing protests, and participating in civil disobedience, female participants are depicted as agents entrusted with the protection of their male counterparts, diverging from the stereotypical portrayal of women as passive figures in need of rescue.⁵⁴ Notably, news reports often highlight the roles of female participants in militancy, providing them with publicity, holding them accountable for their actions, and acknowledging their roles as conscious political agents.⁵⁵ , ⁵⁶ Therefore, women may willingly choose to support militancy and actively assume the status of political agents. This desire is explicitly expressed by a Kashmiri college teacher who describes her decision to act as a human shield for militants as a conscious choice to embrace a “public role.”⁵⁷

Here, it is crucial to understand why women might perceive militancy as the most viable path to attain political agency and empowerment. In the context of Kashmir, militancy emerges as a significant avenue for Kashmiri women to assert their political agency and pursue empowerment precisely because mainstream channels offer limited opportunities for political representation and growth.⁵⁸ With minimal gender-based political reservations in state assemblies or similar councils, except for the  panchayat  (village council), women find in militancy a pathway to exercise their agency, advance in ranks, and even provide strategic counsel to senior militants.⁵⁹ Female militant groups actively promote increased participation and empowerment for women, with women assuming leadership roles within their respective wings.⁶⁰ Anjum Zamarud Habib, leader of the MKM, contends that women’s participation in militancy enables them to “take forward the  jazba  (zeal) for  azaadi  (freedom).”⁶¹ The use of the term “take” implies active movement and underscores women’s agency in making decisions. This perspective underscores how women proactively shape their roles as political agents in militant organizations. This also becomes particularly attractive in societies like Kashmir, where women are often denied political agency. In contrast, the promises offered by the government may appear less appealing, further strengthening the appeal of militancy as a channel for political empowerment for women in Kashmir.

Unveiling the Constraints: Women’s Limited Agency in Kashmir’s Militant Groups

While it may initially appear that militant groups in Kashmir offer women opportunities for empowerment and increased agency, it is crucial to recognize that these organizations also impose limitations on the expression of such agency. Despite aspiring to be active political participants and protesting against oppressive regimes, women often find themselves confined by militant groups to auxiliary roles or limited indirect combat roles.⁶² Mothers and wives shoulder the societal responsibilities of their male family members and may assist them as human shields during military confrontations.⁶³ When assigned the role of suicide bomber, women are treated as mere instruments, outfitted with explosives and directed by male militants to detonate themselves.⁶⁴ These prescribed roles , strip women of agency and reduce their identity and political involvement to serving as tools controlled by men. Even in more direct combat roles, women are relegated to using their bodies as shields without being recognized as conscious political agents capable of making independent decisions, including the selection and targeting of adversaries. This paucity of female physical autonomy underscores the hesitancy of militant organizations to acknowledge women as conscious political actors capable of making informed military choices on the ground.

Furthermore, it is notable that militant organizations are gradually veering away from involving women in combat-centric roles.⁶⁵ This shift is evident in the diminishing number of female bombers since the early 2000s, as highlighted by Swati Parashar, a political scientist specializing in female insurgency in South Asia.⁶⁶ Parashar’s observation becomes intriguing when juxtaposed with the views expressed by Asiya Andrabi, a prominent female militant. Andrabi argues that it is “against the dignity of a Muslim woman that the parts of her body be strewn in a public place. If a combatant or a suicide bomber is a woman, her dead body is bound to fall or be scattered in a place full of men.”⁶⁷ In reducing a woman solely to her physical body, Andrabi undermines the broader capabilities and roles that women can fulfill. Moreover, her claim that it would be disastrous to have a woman’s body in the presence of men implies a sense of shame associated with women, a characteristic that she does not extend to men. This notion of shame creates a gendered distinction, portraying women as shameful and unsuitable to die publicly while disregarding any mention of men or their supposed shame in witnessing the death of a woman. Andrabi’s statement, given her influential position in the Mujahideen’s female wing, exposes the subordinate depiction of women within militant organizations. It also suggests that despite their relatively higher level of empowerment within these organizations, women still lack the means to achieve true equality with men.

Recent intelligence reports suggest that women might participate in militant training camps, such as those operated by militant organizations like Lashkar-e-Taiba.⁶⁸ These camps are said to provide rigorous training in guerrilla warfare.⁶⁹ However, it is important to critically examine the purpose of such training and consider the recipients’ credentials. In many cases, most women involved in these camps are wives or relatives of high-profile militants, and their training duration is significantly shorter than that of men.⁷⁰ Lasting only 21 days, this limited and basic combat-focused training could be seen as serving primarily self-defense purposes.⁷¹ These circumstances raise important questions about the denial of female agency in actively using weapons for offensive actions. The justification of self-defense for the wives of prominent militants raises two significant points. Firstly, it suggests that women are often perceived as inherently passive, resorting to violence solely for personal safety rather than as a means to advance broader ideologies. Secondly, it implies that only women connected to higher-status men are considered capable of employing violence, thus linking a woman’s position to her relationship with a man. These instances demonstrate the constrained agency granted to women, which is also evident in cases of suicide bombing. Women are denied their status as independent military actors and are confined to tightly controlled auxiliary roles. Therefore, while militancy in Kashmir may offer women an opportunity to assert agency through alternative forms of resistance against patriarchal norms, it ultimately subverts these norms in a limited manner.

The struggles faced by women in Kashmir are deeply rooted in societal constraints and marginalization, which demand immediate attention and empowerment. While some women have found avenues for social and political agency through their participation in militancy, it is crucial to acknowledge the limitations imposed within these organizations that restrict their autonomy and perpetuate gender inequality. To address these complex gender dynamics and pursue empowerment, alternative non-violent approaches must be embraced.

For women in Kashmir to truly experience empowerment and for peace to prevail, it is imperative for the government to recognize and address the limitations imposed by militant organizations. Rather than resorting to violence, women should be encouraged to pursue non-violent means to achieve empowerment. The Indian government can draw inspiration from successful examples like Rwanda and Armenia, implementing their effective strategies. First and foremost, creating an environment that values women’s voices and involves them in policymaking is crucial. This can be achieved by implementing a quota system similar to Rwanda’s, which has successfully increased female representation in decision-making bodies.⁷² By actively shaping policies and representing diverse interests, women can contribute to gender equality and empowerment in politics.

Secondly, the government should invest in training programs that enhance women’s leadership skills, following Armenia’s successful example.⁷³ By providing opportunities for leadership development, women can become effective agents of change within their communities, leading to greater participation in decision-making processes. One way of doing so is by enhancing women’s access to economic opportunities. In post-genocide Rwanda, the government prioritized economic initiatives for women, such as establishing cooperatives and microfinance programs.⁷⁴ The government of Kashmir can also support initiatives that provide women with entrepreneurship training, access to credit, and opportunities to participate in the formal economy.

True empowerment lies in valuing women’s voices, experiences, and aspirations, providing them with equal opportunities, education, and the freedom to make choices for themselves. Government plays a crucial role in shaping a society that celebrates women for their strength, intellect, and individuality. By challenging prevailing stereotypes and misconceptions, the government can foster an environment where women are seen as agents of change rather than passive participants. The journey towards empowering women in Kashmir is undoubtedly complex, but it must be undertaken to ensure a just and equitable society. By recognizing the latent potential of women, valuing their contributions, and creating an environment that supports their aspirations, a path can be paved for a more inclusive and peaceful Kashmir. It is only through such efforts that the struggles faced by women can be overcome and a society that embraces gender equality and empowers all its members can be achieved.

¹ Outlook Web Desk, “The History of Kashmir Conflict and Its Various Phases,” https://www.outlookindia.com/, April 3, 2022, https://www.outlookindia.com/national/the-history-of-kashmir-conflict-news-189840.

⁴ Tehmeena Rizvi, “Kashmiri Women for a Shared Future,” Policy Perspectives Foundation, November 2, 2020, https://ppf.org.in/opinion/kashmiri-women-for-a-shared-future.

⁵ Swati Parashar, “Gender,  Jihad , and Jingoism: Women as Perpetrators, Planners, and Patrons of Militancy in Kashmir,”  Studies in Conflict & Terrorism  34, no. 4 (March 16, 2011): 309, https://doi.org/10.1080/1057610x.2011.551719.

⁶ Rita Manchanda, “Guns and Burqa: Women in the Kashmiri Conflict,” in  Women, War and Peace in South Asia: Beyond Victimhood to Agency , ed. Rita Manchanda (New Delhi: Sage Publishers, 2001), 53.

⁷ Parashar, “Gender,  Jihad , and Jingoism,” 309

⁹ Sobhrajani, “Women’s Role in the Post-1989 Insurgency,” 79.

¹¹ Malik, “Democracy, Gender and Armed Conflict,” 79

¹² Malik, “Democracy, Gender and Armed Conflict,” 719

¹³ Malik, “Democracy, Gender and Armed Conflict,” 723.

¹⁴ Hafsa Kanjwal, “Women in Kashmir,”  South Asia Graduate Research Journal  20 (season-03 2011): 59.

¹⁸ “Mission Kashmir,” Indian Cinema – the University of Iowa, accessed October 30, 2023, https://indiancinema.sites.uiowa.edu/mission-kashmir.

¹⁹ Urba Malik, “Democracy, Gender and Armed Conflict: Exploring Kashmir,”  AGU International Journal of Research in Social Sciences & Humanities  6, no. 1 (2018): 717.

²¹ Asia Watch and Physicians for Human Rights, “Rape in Kashmir: A Crime of War,”  Human Rights Watch  (HRW India, 2007), https://www.hrw.org/sites/default/files/reports/INDIA935.PDF.

²² Malik, “Democracy, Gender and Armed Conflict,” 717.

²⁹ Aliya Bashir, “Kashmir’s Half-Widows Shoulder the Burden of a Double Tragedy,”  The Guardian , October 11, 2010, https://www.theguardian.com/global-development/2010/oct/11/1.

³⁰ Malik, “Democracy, Gender and Armed Conflict,” 721.

³¹ Sunayana Kachroo and Danish Renzu, “The Half Widows in Kashmir,” Medium, August 31, 2018, https://medium.com/the-wvoice/the-half-widows-in-kashmir-fef80c6b88e9.

³² Safina Nabi Grantee, “How Kashmir’s Half-Widows Are Denied Their Basic Property Rights,” Pulitzer Center, January 26, 2022, https://pulitzercenter.org/stories/how-kashmirs-half-widows-are-denied-their-basic-property-rights.

³⁵ Malik, “Democracy, Gender and Armed Conflict,” 721.

⁴¹ Devina Neogi, “Women’s Struggles in the Kashmir Militancy War,”  Journal of International Women’s Studies , 7, 23, no. 6 (May 2022): 7.

⁴⁵ Husain, “The Other Face of Azadi,” 66.

⁴⁷ Husain, “The Other Face of Azadi,” 65.

⁴⁸ Malik, “Democracy, Gender and Armed Conflict,” 723.

⁴⁹ Husain, “The Other Face of Azadi,” 67.

⁵⁰ Parashar, “Gender, Jihad, and Jingoism,” 304.

⁵¹ Husain, “The Other Face of Azadi,” 66.

⁵² Nusrat Ali, “Women in Kashmir: Caught between Patriarchy and Conflict,”  Kashmir Reader , January 15, 2021, https://kashmirreader.com/2021/01/16/women-in-kashmir-caught-between-patriarchy-and-conflict/#:~:text=Kashmiri%20society%2C%20like%20other%20societies,treated%20as%20inferior%20to%20men.

⁵³ Husain, “The Other Face of Azadi,” 66.

⁵⁴ Neogi, “Women’s Struggles in the Kashmir Militancy War,”1.

⁵⁵ Aaliya Anjum, “The Militant in Her: Women and Resistance,”  Al Jazeera , August 2, 2011, https://www.aljazeera.com/news/2011/8/2/the-militant-in-her-women-and-resistance.

⁵⁶ Masrat Zahra and Peerzada Sheikh Muzamil, “In Photos: How Women’s Roles Are Changing in Kashmir’s Conflict,”  The New Humanitarian , April 1, 2021, https://www.thenewhumanitarian.org/photo-feature/2020/07/14/Kashmir-military-conflict-violence-women.

⁵⁷ Seema Kazi, “Between Democracy and Nation: Gender and Militarisation in Kashmir” (PhD diss., London School of Economics and Political Science, 2007), 48.

⁵⁸ Condoleezza Rice, conversation with author, Stanford, May 12, 2023.

⁵⁹ Iqbal, “Through Their Eyes,” 167.

⁶⁰ Husain, “The Other Face of Azadi,” 66.

⁶¹ Husain, “The Other Face of Azadi,” 67.

⁶² Husain, “The Other Face of Azadi,” 64.

⁶³ Husain, “The Other Face of Azadi,” 66.

⁶⁴ Swati Parashar, “Feminist International Relations and Women Militants: Case Studies from Sri Lanka and Kashmir,”  Cambridge Review of International Affairs  22, no. 2 (July 1, 2009): 235–56, https://doi.org/10.1080/09557570902877968, 248.

⁶⁷ Manisha Sobhrajani, “Jammu and Kashmir: Women’s Role in the Post-1989 Insurgency,”  Faultlines  19, no. 1 (April 2008): 71.

⁶⁸ Pradeep Thakur, “Let Training Women Militants,”  The Times of India , April 6, 2006, https://timesofindia.indiatimes.com/india/let-training-women-militants/articleshow/1862696.cms.

⁷⁰ Manchanda, “Guns and Burqa,” 78.

⁷¹ Thakur, “Let Training Women Militants.”

⁷² UN Women, “Revisiting Rwanda Five Years after Record-Breaking Parliamentary Elections,” UN Women, 2019, https://www.unwomen.org/en/news/stories/2018/8/feature-rwanda-women-in-parliament.

⁷³ “Women in Politics | United Nations Development Programme,” UNDP, accessed October 30, 2023, https://www.undp.org/armenia/projects/women-politics.

Khushmita Dhabhai

Khushmita Dhabhai is an undergraduate at Stanford University. Her areas of interest include studying conflict resolution, peacebuilding, statecraft, political philosophy, constitutional law, and the role of ethics in international affairs. Her regional focus is in the Asia-Pacific.

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Hafeez Ahmed Khan

On the 75th anniversary of the Universal Declaration of Human Rights (UDHR), the ongoing conflict in Kashmir remains a stark reminder of the fragility of human rights in the face of political power. Despite the UDHR’s enshrinement of fundamental liberties like freedom, independence, and self-determination, the Kashmiri people continue to face a brutal reality of oppression under Indian rule.

The Indian government’s revocation of Articles 370 and 35A in 2019 further exacerbated the situation. These articles granted Kashmir a degree of autonomy and protected the region’s unique cultural and demographic identity. Their removal has paved the way for demographic changes, with non-residents now allowed to purchase property and land in Jammu and Kashmir, potentially altering the political landscape and disenfranchising the local population.

The long-standing dispute has been marred by a history of human rights abuses by Indian forces. The UN reports highlight the concerns over impunity, limited access to justice, and the implementation of draconian laws that impede accountability. The Kashmir Public Safety Act and the Armed Forces (Jammu and Kashmir) Special Powers Act provide a legal framework for arbitrary detention, torture, and extrajudicial killings.

The UN resolutions on Kashmir recognize the right to self-determination for the Kashmiri people. However, this right has been denied by India for decades, violating Article 1 of the UDHR, which guarantees the right to freedom for all.

The presence of a large Indian army contingent in Kashmir, estimated at over 900,000 soldiers, has not brought peace or stability. Instead, it has led to extensive human rights violations. The high number of casualties, estimated at over 68,000, and the alarming increase in civilian deaths point to the excessive use of force by the Indian government.

The Indian government’s actions in Kashmir constitute a clear violation of the fundamental rights enshrined in the UDHR. The denial of freedom of movement, expression, and assembly, as well as the arbitrary detention and torture of individuals, are stark examples of human rights abuses. The Indian occupation also impinges upon the right to life, privacy, and protection from discrimination.

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The international community’s silence on the issue of Kashmir is particularly disheartening. Their contrasting proactive approach in other conflicts, such as Ukraine and Israel, raises questions about their commitment to upholding human rights universally.

The Indian government’s actions have had a devastating impact on the lives of Kashmiris, particularly in the areas of education and mental health. The lack of access to quality education and the restrictions on pursuing higher education hinder the development of future generations. The prevalence of mental health issues like anxiety, depression, and PTSD underscores the psychological toll of the conflict on the Kashmiri people.

The Kashmir conflict is a long-standing territorial dispute between India and Pakistan over the region of Jammu and Kashmir. The conflict has its roots in the partition of India in 1947, which led to the creation of India and Pakistan as separate states. The dispute over Kashmir began soon after, with both India and Pakistan claiming the region as their own. The United Nations Security Council (UNSC) passed Resolution 47 in 1948, which called for a plebiscite to be held in the region to determine its future status. The resolution also called for the withdrawal of Pakistani forces from the region, followed by the withdrawal of Indian forces to a minimum level required for law and order.

The resolution was accepted by both India and Pakistan, but the plebiscite was never held. The conflict has since escalated, with both sides engaging in military action and human rights abuses. The people of Kashmir have been caught in the middle of this conflict for decades, with their aspirations for self-determination and peace largely ignored.

It is critical to resolve the issue of Kashmir according to the UN resolution and the aspirations of the Kashmiri people for several reasons. First, the conflict has resulted in the loss of thousands of lives and has caused immense suffering to the people of the region. Second, the conflict has the potential to escalate into a larger conflict between two nuclear-armed nations, which would have catastrophic consequences for the entire region and beyond. Third, the people of Kashmir have the right to determine their own future and should be given the opportunity to do so through a free and fair plebiscite. Fourth, resolving the conflict would help to promote peace and stability in the region, which is in the interest of all parties involved.

The Kashmir conflict serves as a stark reminder of the ongoing struggle for human rights in the face of political power. The Indian government’s actions in Kashmir constitute a clear violation of the fundamental rights guaranteed by the UDHR. The international community’s silence on this issue is particularly disappointing and further fuels the sense of injustice among the Kashmiri people. It is imperative that the international community takes concrete steps to hold India accountable for its human rights violations in Kashmir and ensure the realization of the Kashmiri people’s right to self-determination.

Therefore, the Kashmir conflict is a complex issue that requires a peaceful and just resolution. The UN resolution and the aspirations of the Kashmiri people provide a framework for resolving the conflict and should be taken into account by all parties involved. A peaceful resolution of the conflict would not only benefit the people of Kashmir but would also help to promote peace and stability in the region.

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Falling Through the Cracks: Kashmir’s Resistance Against Settler Colonialism and the Limits of International Law

Feb 26, 2022 | Content , Essays , Online Scholarship

Shaiba Rather *

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This Note centers Kashmir as a case study to illuminate the ways in which the law can and cannot offer respite for those in settler colonial regimes. In particular, it highlights how the international community has failed to accept Kashmir as under occupation and thus refused to extend the protections of jus in bello to its civilians.  While Kashmiris have been pushed out of the protections from international law in the past, this Note presents settler colonialism as an analytical lens that can potentially offer respite. It acknowledges that international law does not explicitly prohibit settler colonial conduct but highlights how advocates can couple their “legal work” with the rights that are established in international law to build their own opportunities for relief outside of the law. This piece provides two contributions to existing literature: it advances the very limited discussion of the international law of settler colonialism and strengthens the current understanding of the modes of oppression that exist in Kashmir.

Introduction

On December 14, 1960, the U.N. General Assembly issued a solemn proclamation in Resolution 1514: that the “speedy and unconditional end [to] colonialism in all its forms and manifestations” was a “necessity.” [1] For the “subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, [was and is] contrary to the Charter of the United Nations and [was and is] an impediment to the promotion of world peace and co-operation.” [2] It was this proclamation that the global community fondly remembers as the start of the decolonization era. Despite the moment’s grandeur, the modern global political climate suggests that this declaration from 1960 was far too ambitious and perhaps altogether deceptive. Traditional colonial empires superficially collapsed. But their undercurrents—the need to dominate the “other”—lingered. The result was that colonialism of the past did not crumble but instead persisted, evolved, and re-clothed itself in nations both new and old.

Settler colonialism is the General Assembly Resolution 1514’s modern enemy. Settler colonialism is premised on the state’s recruitment of a class of settlers whose goal is to not only occupy the land of the Indigenous but also to eliminate the Indigenous who stand in their way. [3] Settler colonialism and colonialism are distinct, yet intertwined, modes of oppression. While colonizers say, “you, work for me,” settler colonizers say, “you, go away.” [4] Still, at the core of both projects are migration and a relationship of ascendency. [5]

Since 1960, settler colonialism has wreaked havoc on a number of global communities: from Indigenous people across the Americas, New Zealand, and Australia, [6] to the Palestinians. [7] And unfortunately, the global expanse of settler colonial forces has not slowed down. With the 2019 abrogation of Jammu and Kashmir’s semi-autonomous status in India, some scholars now fear that India’s relationship with the region has transitioned into a fully settler colonial one. Some, as I have previously argued, [8] contend that settler colonialism narratives in Kashmir have persisted since well before the abrogation.  Regardless of the starting point of India’s settler colonial project in Kashmir, the fears for the future are the same: that India will recruit a class of non-Kashmiri settlers to change the predominantly Muslim demographic of the region.

This Note centers Kashmir as a case study to illuminate the ways in which the law can and cannot offer respite for those in settler colonial regimes. Given a settler state’s interest in preserving itself, domestic law’s use as a shield appears unlikely. [9] This piece thus asks: What, if anything, can we make of international law?

After presenting context on the situation in Jammu and Kashmir in Part I, Part II discusses the ways international law has failed the region in the past. In particular, it highlights how the international community has failed to accept Kashmir as under occupation and has thus failed to extend the protections of jus in bello to its civilians. This Note then proceeds in Part III to present the settler colonialism framework as one that can potentially offer respite for Kashmiris outside of the traditional jus in bello framework.  Although literature on the subject remains limited, the approach offered by Professor Natsu Taylor Saito is a helpful starting point for understanding what tools currently exist in international law. In the final Part, this Note examines the strengths and weaknesses of the existing international legal framework on settler colonialism. While it acknowledges that international law does not explicitly prohibit settler colonial conduct, it recognizes that advocates can couple their “legal work” with the rights established in international law to build their own opportunities for relief outside of the law.

I. The Legacy of Partition

In August 1947, the Indian subcontinent comprised not only the familiar nations of India and Pakistan but also more than 500 “princely states” foreign to modern maps. [10] The princely system relied on nested sovereignty, where princes exercised near-autonomy while still heeding the title of the British monarchy. [11] Each chiefdom confronted a challenging question with the onset of 1947: How would, and should, their future manifest in a free Indian subcontinent?

For the majority of the princely states, the answer to this question was bifurcated: join Pakistan or India. [12] Although the Viceroy of India Lord Mountbatten successfully persuaded nearly all of the princely states to align based on geography or religious demography, three states remained unfettered. Of these three, the snow-capped, Himalayan-crested state of Kashmir stood tall.

At the time, the state of Jammu and Kashmir neared the physical size of the United Kingdom and had a population of just over four million people. [13] The region was culturally and topographically heterogenous, including what is now the predominantly Hindu low-hilled region of Jammu, the majority Muslim Valley of Kashmir, and the Buddhist dominated high-peaked Ladakh. [14] What could have been three distinct states in and of themselves were unified under the regime of Dogra Rajput, a clan who stretched the state’s borders from Afghanistan to Tibet. [15] Together, the heterogenous region was a notable powerhouse in the subcontinent. Prized for its naturally rich land and strategic geographic location, [16] Kashmir captured the interest of both the infantile India and Pakistan.

However, Kashmir did not fit neatly into the framework for alignment. [17] The state was not only predominantly Muslim yet ruled by a Hindu king, Maharaja Hari Singh, but also uniquely abutted both Indian and Pakistani frontiers. [18] The King’s own preference for an independent Kashmir only further muddled the region’s future. [19] Thus, when confronted with the question of accession, the Maharaja opted instead for a “standstill agreement,” leaving Kashmir with free movement and transport across both India and Pakistan without ceding any sovereignty. [20]

What comes next remains as disputed as Kashmir’s present-day story. What is clear however is that the so-called standstill did not last very long. The agreed upon facts are the following: in October 1947, a mass of armed men invaded the region from the north, made their way to the capital, and launched an invasion of an ill-defended Kashmir. [21] Unsettled still, and hotly debated, is why and how these raiders came to Kashmir. [22] Some accounts characterize the invasion as Pakistani-orchestrated to secure Kashmir; others present an independent group rushing to save subjugated Muslims suffering under an oppressive Hindu rule in Kashmir. [23] Regardless, the invasion forced Maharaja Singh’s hand—fearing for his ill-equipped state army, he turned to India for defensive support. India conditioned its support on Kashmir signing the Instrument of Accession, and the Maharaja agreed. [24] Critical to that signing, however, was an agreement between Lord Mountbatten and Maharaja Singh that although India would provide Kashmir with military aid given the invasion, “as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.” [25]

Despite assurances for a plebiscite from the Viceroy and later, the United Nations, [26] such an inquiry never took place. Instead, select Kashmiri political leaders continued their negotiations with the Indian national government, eventually crafting Article 370 of the Indian Constitution in 1950.

Article 370 crystallized Kashmir’s uniquely semi-autonomous status. Notably, Article 370 curtailed the application of the Indian Constitution and the national government’s powers to the domains specified in the Instrument of Accession: defense, external affairs, and communication. [27] While it allowed for other constitutional provisions to discretionarily apply to Kashmir, it required not just the President’s notification but critically the approval from the “Constituent Assembly of the State.” [28] Similarly, Article 370 could only be deemed inoperative with the state assembly’s recommendation. [29] It was with the powers vested in Article 370 that Kashmir adopted Article 35A to the Indian Constitution, [30] which empowered the state legislature to both define the “permanent residents” of the state and attach specific privileges, like the ownership of land, to such residency. [31]

The region’s autonomy grew beyond Article 370, manifesting in the terms of its own state Constitution as well. [32] These terms included the creation of Kashmir’s own Prime Minister-ship and a unique state flag. [33] Ultimately, Kashmir’s legal regime empowered it to block the application of federal legislation in its own boundaries, limit the ownership of land to Kashmiri natives, and safeguard its Muslim majority demographic. [34]

However, Kashmir’s promised autonomy was whittled to a legal fiction. From the reduction of Kashmir’s Prime Minister to a Chief Minister to the extension of a majority of the articles of the Indian Constitution to the state, [35] Article 370 was more a symbol of Kashmir’s desired sovereignty than the sword championing it. This whittled autonomy, apexed by the Indian-rigged state elections in 1989, [36] amplified a Kashmiri freedom struggle that had existed even before Partition. [37] However, it also launched an intense counter-insurgency strategy from the Indian state, one which was facilitated by the deployment of hundreds of thousands of troops that secured Kashmir’s title as one of the most densely militarized zones in the world. [38]

Almost two years ago, the Indian government delivered its final blow to Kashmir’s autonomy. On August 5th, 2019, the Indian government—under the leadership of the Bharatiya Janata Party (BJP)—abrogated Articles 370 and 35A of the Indian Constitution. [39] This legal strike was not without an Indian-orchestrated brutal crackdown in Kashmir, including but not limited to: enforcing a curfew, blockading communications arbitrarily detaining civilians, limiting civilian access to basic necessities like medical care, disappearing civilians, and conducting torture and extrajudicial killings. [40] The move both eliminated the region’s status as a state and overturned provisions that shielded Kashmir from land purchases made by non-Kashmiris. Post August 5th, Jammu and Kashmir was officially “for sale . . . .” [41]

II. Kashimir’s History with International Law

The Third World Approaches to International Law (TWAIL) have highlighted international law’s impotence writ large. In particular, the school has critiqued the regime for its dubious origins: colonialism. [42] Core to states’ imperial project and thus the creation of international law was a “civilizing mission,” where states justified their casting aside of “the other.” [43] This dynamic has only been reproduced in a “supposedly non-imperial world” and its international order. [44] The result—as seen by TWAIL scholars—is that international law is strapped by the sovereignty doctrine, where “states are the principal actors . . . bound only by that to which they have consented.” [45]

The primacy of state sovereignty has been at the root of Kashmir’s tortured history with international law. Following the 1947 invasion, Kashmir was the first inter-state conflict discussed at the United Nations Security Council (UNSC). [46] Brought through Article 35 of the UN Charter, India sought the aid of the UNSC in enforcing the withdrawal of Pakistani troops from “a State which acceded to the Dominion of India.” [47] Pakistan responded with its own counter-claims, accusing India of waging a genocide against Muslims in parts of India and forcing Kashmir’s accession by fraud and violence. [48] Pakistan made a number of requests of the UNSC, but of note, it asked that the UNSC coordinate a cessation of fighting, ordering the withdrawal of outsiders in Kashmir, and hold a plebiscite in Kashmir “as to whether the State shall accede to Pakistan or to India.” [49] Thus, in the aftermath of decolonization, Kashmir was not its own sovereign but rather the home to a “dispute” [50] between warring India and Pakistan.

From 1948 to 1971, the UNSC issued a series of increasingly watered-down resolutions on Kashmir. [51] What began as a firm call for a “free and impartial plebiscite” [52] ended with a jockey game between India and Pakistan over who erred first. [53] Although the “India-Pakistan Question” remains on the UNSC agenda as a matter of which the “Security Council [is] currently seized,” [54] it functions as nothing more than a placeholder. The “Kashmir dispute” is at best a bilateral issue and at worst, an internal one. [55] To this day, no plebiscite has taken place.

Kashmir’s frayed relationship with international law does not stop with hollowed UNSC resolutions. Despite scholars robustly arguing for the application of the law of occupation to Kashmir, [56] the international community has resisted such a classification. As Critical Kashmir Studies scholar Haley Duschinski explains, the stopping block is typically Kashmir’s partition history. [57] Those unwilling to apply the occupation law reason that Kashmir, by way of signing the Instrument of Accession, is integral to the territory of the Indian state. [58]

The denial of the application of international humanitarian law to Kashmir has been a large blow to its freedom struggle generally. The benefits of this regime are clear: unlike other areas of international law, the rules are bright lined and concretized. [59] Without the recognition of the unlawful occupation of Kashmiri soil, India has been able to portray a different narrative on the ground. The intense military presence in Kashmir does not represent occupying powers but rather components of a necessary counter-insurgency strategy. Likewise, the use of force to suppress unrest is, once again, an internal matter rather than one of international import.  India, like other states, has resisted any classification as an occupying force and instead, has promoted what some scholars call a de facto occupational constitutionalism , where foreign dominance and control are legalized through domestic mechanisms. [60] As a result, international law has largely left Kashmiris to fend for themselves within the bounds of the Indian state.

III. International Law’s Existing Tools Against Settler Colonialism

The lens of settler colonialism can shift the focus from Kashmir’s debated accession history to the less disputed threat to their land and people. Thus, where occupation law falters, the lens of settler colonialism can supplant. The question then arises—where are such protections in international law?

Unfortunately, articles discussing the protective value of international law in settler colonial regimes are limited. However, Professor Natsu Taylor Saito has discussed the application of international law as it relates to the settler colonial projects waged against Indigenous persons and people of color in the United States. [61] This part builds on her analysis in the context of the Kashmiri struggle in India. Ultimately, international law, as it currently exists, does not prohibit “settler colonialism” by name. Yet, it does supply key legal principles that offer protections more expansive than those that typically exist within a nation. This part turns to a number of different areas of international law—first, key framing principles; then, the rights of the Indigenous; and finally, the right to self-determination—to present the existing tools available to those colonized in settler regimes today.

A. Framing principles

Human rights law operates with two key principles in the background: the preservation of human dignity and the prohibition on discrimination. Human dignity is often recognized as a precursor to the realization of other rights. [62] This principle strikes at the core of the settler regime: “the coercive rule of one or the few over the many is incompatible with a due respect for the dignity of the person.” [63]

International law explicitly creates a prohibition on discrimination and reaffirms that prohibition across conventions. [64] In particular, the two core human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) [65] and the International Covenant on Economic, Social and Cultural Rights (ICESCR) [66] bind India on this front by way of ratification. [67] The anti-discrimination right extends to a broad category of persons. [68] The ICCPR even goes so far as to enshrine rights protecting against the forced assimilation of minorities, [69] reflecting concerns over erasure. More simply, the principle of anti-discrimination fights the creation of the Indigenous other. [70]

B. Rights of Indigenous Peoples

Following several decades of robust advocacy, the UN passed the Declaration on the Rights of Indigenous Peoples (UNDRIP), [71] which received India’s vote. [72] While there is no authoritative definition of Indigenous populations in international law, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed the following indicators for indigeneity: historical continuity; distinctiveness; non-dominance; and a determination to pass their ancestral territories and culture to future generations. [73] But above all, “self-identification as Indigenous or tribal” is the fundamental criterion. [74] Kashmiris have not only consistently self-identified as a distinct political entity, [75] but they have also organized around Kashmiriyat , a culture which is comprised of a “love of the homeland ( kashir ) and common speech ( koshur ).” [76]

UNDRIP, [77] although a non-binding declaration, [78] rhetorically combats the logic of elimination driving settler colonial projects. It reinforces the right of Indigenous communities to maintain their cultures and prohibits forced assimilation and displacement, [79] both of which, as Saito notes, are powerful for ensuring the protection of Indigenous resources and lands. [80] However, the Declaration is most dilute as it relates to recognizing Indigenous sovereignty—recognizing the explicit right of self-determination for Indigenous people but failing to require the realization of such a right by states. [81]

Although the Indigenous rights framework may not be as comprehensive as the laws of war governing occupation, they are “arguably more comprehensive than international legal instruments associated with minorities” [82] and can therefore be an important resource for Kashmiri advocates. However, UNDRIP, notably, is a declaration and not a treaty, thus giving it no binding power under international law. While some persuasive arguments have been made to UNDRIP’s customary, and thus binding status, they are not widely accepted. [83]

C. Right to Self-Determination

The right to self-determination—that is the peoples’ right to its own sovereignty—is arguably the most crucial element for release from a settler colonial regime. In some ways, international law has glorified this right the most, with its cardinal articulation as one of the “purposes” of the UN Charter itself. [84] This purpose was given muster with the passage of the Declaration on the Granting of Independence to Colonial Countries and Peoples, which called for the “the speedy end [of] colonialism in all its forms and manifestations [to be a] necessity.” [85]

This unabashed right to self-determination has narrowed in its scope since the “Decolonization Era.” Today, the right to self-determination is divided into internal and external forms. The more widely applicable form is the internal one, which entails guaranteeing socio-political rights to ensure autonomy for peoples within a state. [86] External self-determination, where the result is the drawing of new international boundaries, [87] has been limited to the extreme cases of “alien subjugation” and traditional colonial regimes as they existed in the past. [88] Although some jurists suggest that the right may exist where self-determination is blocked internally, [89] there has been no authoritative interpretation on this matter.

As a threshold matter, both internal and external rights to self-determination are limited to “peoples.” Similar to the definition of Indigenous peoples, “peoples” in the context of self-determination is not defined by an international treaty. It is generally accepted that the “peoples” determination is both subjective and objective, often including a shared belief in being a unit as well as actually sharing things like race, culture, and ethnicity. [90] In defending themselves from claims to self-determination, settler states typically argue that the population is not a “people,” that only geographically distinct territories warrant decolonization, and that, regardless, these matters are internal affairs. [91]   However, Saito, by looking at self-determination from the bottom-up, debunks these defenses. [92]

Self-determination is arguably the most crucial element for release from a settler colonial regime. However, its dilution in the law is the product of the tension it straddles. The right to self-determination toes the line between respecting the rights of subjugated people and upsetting uti possidetis juris , the preference for the territorial status quo in the name of stability. [93] Notably, and despite this friction, international law still emphasizes that it is only “by virtue of that right [to self-determination]” that other widely accepted human rights can have meaning. [94]

IV. Working for Remedies

Given international law’s colonial origins, [95] how can we expect the principles laid out above to protect against settler colonial projects? The answer is not an easy one, and it might in fact be we cannot.

Kashmiris, like many in settler colonial states, are trapped in oppressive domestic regimes. Their oppressor states spin narratives of “internal affairs,” escaping the protections and limitations of the law of occupation and jus in bello more generally. International legal principles, like the ones above, may dismiss settler conduct as normatively wrong but fail to provide any remedial bite. The result? Kashmiris and those similarly colonized by settler states have fallen through the cracks of international legal regime.

However, dismissing international law entirely may not be the answer either. While it may be limited due to its origins, the current international legal regime at least evinces this: native peoples combatting settler colonial states are empowered with rights recognized by the international framework. It is a framework that calls for decolonization and recognizes the right to self-determination of peoples. It is one that lifts up the shared culture, identity, and collectively-owned land and calls for their preservation. It is the vesting of these rights that shifts our original question to a more appropriate one—how can Kashmiris use these rights to not just resist but launch their decolonization? And perhaps, how can they reimagine a new regime altogether?

Decolonization of settler colonial states requires, then, what Professor Duncan Kennedy initially coined [96] and Professor Noura Erakat later deploys in the context of Palestine, [97] engaging in “legal work.” “Legal work,” at its core, entails an effort on the part of the worker to mold a legal regime to their benefit. [98] At this stage, the existing international principles described above are embedded in a weak enforcement regime with little binding power. [99] But with “legal work,” as Kennedy explains, the worker can “transform an initial apprehension of what the system of norms requires . . . so that a new apprehension of the system . . . will correspond to the extra-juristic preferences of the interpretive worker.” [100]

While there is no “blueprint” for the decolonization of a settler regime, one thing is clear: it must be crafted from the hands of the oppressed. [101] Kashmiris, by engaging in “legal work” with the principles laid out above, can reinvigorate their struggle at the international stage. For example, by organizing around these rights—of indigeneity and more generally peoplehood— advocates can better illuminate the parallels between the Kashmiri pro-freedom movement and that of the Palestinians or the Indigenous communities in Australia and New Zealand. [102] Both of the movements have received more concretized legal support in the international order, like large recognition for their independent statehood [103] and the benefits of the passage of UNDRIP respectively. Working within the settler colonialism framework can also shift conversations away from the law of occupation, which the international community has resisted. [104] Principles of indigeneity can instead focus the discussion on the less disputed threat to Kashmiri land and people.

Activist can utilize these principles to imbue their work with a newfound sense of urgency. Taken to its end, the settler logic warns of a full, physical and violent elimination of the native. It is this elimination that UNDRIP itself explicitly warns and protects against. [105] As a result, the question of genocide—prohibited by international law [106] —lurks behind any discussion of settler colonialism. [107] Kashmir itself is no stranger to these concerns, particularly in the aftermath of the abrogation. [108]

By repositioning itself in the settler colonial narrative, the Kashmiri freedom movement can use the concerns articulated in UNDRIP to illuminate India’s seemingly normal actions as insidious. These principles provide the language for why emerging “neighborhoods” or changes in title may be problematic. [109] Having this language can also illuminate new acts of resistance that may be necessary, like discouraging Indians from buying land in the region [110] or larger Boycott, Divestment and Sanctions movements like in Palestine. Moreover, exposing this urgency—stopping the settler colonial project before it is too late—can itself “create[] the imperatives of decolonization.” [111]

The fight against settler colonialism has been no stranger to the benefits of the “legal work” of the colonized. Indigenous movements have made great strides in decolonizing domestic legal spaces like those in Canada, [112] and pushed international courts, like the Inter-American Court of Human Rights, to recognizing the principality of land to Indigenous communities as a “material and spiritual element.” [113] In fact, it was only from several decades of intense advocacy that UNDRIP was even born.

Thus, the fact that international law does not itself carry explicit legal remedies may be secondary to the fact that it does vest Kashmiris with rights relevant to settler colonial realities. Indigenous communities do in fact have rights recognized by the law. “[T]aking up the struggle for freedom,” particularly around the framework of settler colonialism, is a fundamental way for Kashmiris to “assert [their] international personality,” and more fundamentally, their identity as people protected by international law. [114] Whether India or other settler colonial states heed activism, their sovereignty, “inherent in every people,” will continue to exist regardless of whether India or the international order is willing to recognize them at this moment. [115] Thus, although creating an international legal order that penalizes settler colonial states may require radical reimagination, creating an international legal order that acknowledges the wrongs of a settler regime and vests rights within the wronged requires much less.

However, as the settler colonized engage in “legal work” to reimagine their own relief, we should ask whether this is how we want our international legal system to operate. Without explicit remedies for settler colonial conduct in existing international law, those suffering under oppressive regimes now have the additional labor of crafting their own relief. They must engage in the legal work while also protecting their culture, their land, and their people. Are these cracks in the international legal system by design? Or the mere reality of true decolonization?

[1]      G.A. Res. 1514 (XV) (Dec. 14, 1960).

[2]      Id.

[3]       See Patrick Wolfe, Settler Colonialism and the Elimination of the Native , 8 J. Genocide Rsch. 387, 388 (2006).

[4]      Lorenzo Veracini, Introducing: Settler Colonial Studies , 1 Settler Colonial Stud. 1, 1 (2011).

[5]      Id.

[6]      See generally A. Grenfell Price, White Settlers and Native Peoples (1950) (comparing the effects of white settler colonialism on Indigenous populations of North America, New Zealand, and Australia).

[7]       See generally , e.g. , Maxime Rodinson, Israel: A Colonial-Settler State? (1973); Nadim N. Rouhana & Areej Sabbagh-Khoury, Settler-Colonial Citizenship: Conceptualizing the Relationship Between Israel and Its Palestinian Citizens , 5 Settler Colonial Stud. 205 (2015).

[8]       See Note, From Domicile to Dominion: India’s Settler Colonial Agenda in Kashmir , 134 Harv. L. Rev. 2530 (2021).

[9]       See Natsu Taylor Saito, Settler Colonialism, Race, and the Law 167 (Ediberto Roman ed., 2020) (“States, as political constructs, have little if any incentive to recognize the rights of minority groups or peoples who are colonized, internally or externally.”).

[10]     Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy 36–37 (2008).

[11]     Id.

[12]     See Neera Chandhoke, Contested Secessions: Rights, Self-determination, Democracy, and Kashmir 19 (2012).

[13]     See Guha , supra note 10, at 59.

[14]    See id. at 37.

[15]     Id.

[16]    See Chandhoke , supra note 12.

[17]     See Matthew J. Webb, Escaping History or Merely Rewriting It? The Significance of Kashmir’s Accession to Its Political Future , 20 Contemp. S. Asia 471, 477 (2012).

[18]    Guha , supra note 10, at 60.

[19]    Id. at 64.

[20]    See Webb, supra note 17.

[21]      The Maharaja’s Letter to the Governor-General of India, Lord Mountbatten (Oct. 26, 1947), reprinted in A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir 41–42 (2011).

[22]    Guha , supra note 10, at 64–65.

[23]    Id.

[24]    Note that the Maharaja’s signing of the Instrument of Accession is also contested, with scholars arguing that the accession was induced through false promises. See, e.g. , Chandhoke , supra note 12, at 101.

[25]     Letters between Lord Mountbatten and Maharaja Singh suggest that although India would aid in Kashmir’s military aid given the invasion, “as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.” Letter from Governor-General, India, Delhi, to Maharaja Sahib (Oct. 27, 1947), reprinted in Noorani , supra note 21, at 43 [hereinafter Letter from Governor-General].

[26]    Infra Part II.

[27]     Constitution of India art. 370, cl. 1(a)–(b).

[28]    Id. cl. 3.

[29]    Id .

[30]    Ministry of Law, Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48 (Issued on May 14, 1954).

[31]      Id. pt. 4, cl. (j). Other states in India have similar restrictions on land ownership as described in Vakasha Sachdev, Despite J&K Changes, You Still Can’t Buy Land in These States , The Quint (Oct. 29, 2020), https://www.thequint.com/news/india/jammu-kashmir-land-laws-amended-other-states-where-outsiders-cant-purchase-property-himachal-sikkim-arunachal-tribal-areas [https://perma.cc/N3ES-U6N9].

[32]    Constitution of Jammu and Kashmir Nov. 17, 1956, arts. 3–5.

[33]    Id. arts. 36, 144.

[34]    Haseeb A. Drabu, Modi’s Majoritarian March to Kashmir ,  N.Y. Times  (Aug. 8, 2019), https://www.nytimes.com/2019/08/08/opinion/modis-majoritarian-march-to-kashmir.html [https://perma.cc/U9W5-W3ZM].

[35]    See Angana P. Chatterji, Kashmir: A Place Without Rights , Just Sec. (Aug. 5, 2020), https://www.justsecurity.org/71840/kashmir-a-place-without-rights [https://perma.cc/G4EB-8695].

[36]    See generally Sten Widmalm, The Rise and Fall of Democracy in Jammu and Kashmir , 37 Asian Surv. 1005 (1997) (detailing notable and perceived-as-rigged elections in Kashmir).

[37]    See generally Mridu Rai, Hindu Rulers, Muslim Subjects 224–87 (2019) (discussing Kashmiri political mobilization against the “Hindu State” under the ruling dynasty).

[38]    See Jammu Kashmir Coal. of Civ. Soc’y, Structures of Violence: The Indian State in Jammu and Kashmir 36–37, 75 (2015).

[39]    India Revokes Kashmir’s Special Status , Al Jazeera (Sept. 4, 2019), https://www.aljazeera.com/news/2019/09/india-revokes-kashmir-special-status-190904143838166.html [https://perma.cc/DN2H-FELR].

[40]     See Kashmir: Curfew-Like Restrictions Imposed on Movement of People , India Today (Aug. 5, 2019), https://www.indiatoday.in/india/story/jammu-and-kashmir-curfew-section-144-imposed-1577218-2019-08-05 [https://perma.cc/8LMP-2KAB].

[41]     Omar Abdullah (@OmarAbdullah), Twitter (Oct. 27, 2020, 4:06 AM), https://twitter.com/OmarAbdullah/status/1321015482544054273 [https://perma.cc/TSN7-994N].

[42]    See Antony Anghie, Core Imperialism, Sovereignty and the Making of International Law 3 (2005).

[43]     Id. at 311–12.

[44]     Id. at 310–11.

[45]     Id. at 33.

[46]     Rakesh Ankit, Britain and Kashmir, 1948: “The Arena of the UN” , 24 Dipl. & Statecraft 273, 273 (2013).

[47]     Stephen P. Westcott, The Case of UN Involvement in Jammu and Kashmir , E-Int’l Rels. 1, 4 (2020), https://www.e-ir.info/pdf/81046 [https://perma.cc/F2SC-DS2S].

[48]     Brian R. Farrell, The Security Council and Kashmir , 22 Transnat’l L. & Contemp. Probs. 343, 346 (2014).

[49]     Minister of Foreign Affs. of Pakistan, Letter dated Jan. 15, 1948 from the Minister of Foreign Affairs of Pakistan to the Secretary-General, U.N. Doc. S/646 (Jan. 15, 1948).

[50]     S.C. Res. 39 (Jan. 20, 1948).

[51]      See generally Farrell,  supra note 48 (for a detailed history of Security Council action on Kashmir).

[52]     S.C. Res. 47 (Apr. 21, 1948).

[53]     See Farrell,  supra note 48, at 354–55.

[54]     Ghulam Nabi Fai, Kashmir and the UN Security Council , Anadolu Agency (Sept. 12, 2020), https://www.aa.com.tr/en/analysis/kashmir-and-the-un-security-council/1971039 [https://perma.cc/N4BJ-3L29].

[55]     Geeta Mohan, Kashmir a bilateral issue, India tells US after Trump offers help , India Today (Jan. 22, 2020), https://www.indiatoday.in/india/story/kashmir-a-bilateral-issue-india-tells-us-after-trump-offers-help-1639126-2020-01-22 [https://perma.cc/YC3P-6SXU].

[56]     See generally Nosheen Ali et al., Geographies of Occupation in South Asia , 45 Feminist Stud. 574 (2019); Mona Bhan et al., “Rebels of the Streets”: Violence, Protest, and Freedom in Kashmir , in Resisting Occupation in Kashmir 1, 5 (Haley Duschinski et al. eds., 2019); Haley Duschinski & Shrimoyee Nandini Ghosh, Constituting the Occupation: Preventive Detention and Permanent Emergency in Kashmir , 49 J. Legal Pluralism & Unofficial L. 314 (2017).

[57]     Duschinski & Ghosh, supra note 56, at 315–16.

[58]     Id.

[59]     See Breven C. Parsons, Moving the Law of Occupation into the Twenty-First Century , 57 Naval L. Rev. 1, 5–8 (2009) (discussing the law of occupation’s robust treaty framework but noting how it’s been practically undermined).

[60]     Duschinski & Ghosh, supra note 56, at 318.

[61]     See generally Saito , supra note 9.

[62]    See International Covenant on Civil and Political Rights, preamble, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic, Social, and Cultural Rights, preamble, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR] (“[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”).

[63]    Oscar Schachter, Human Dignity as A Normative Concept , 77 Am. J. Int’l L. 848, 850 (1983).

[64]    See U.N. Charter art. 1(3); ICCPR, arts. 2, 7; ICESCR, art. 2(2).

[65]    ICCPR, arts. 2(1), 26.

[66]    ICESCR, art. 2(2).

[67]    Ratification Status for India , https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN [https://perma.cc/9BZZ-M8VW] (last visited May 2, 2021).

[68]    ICCPR, art. 26 (protecting “discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”)

[69]    ICCPR, art. 27 (“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”)

[70]    See Veracini, supra note 4, at 2.

[71]     G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples (Sep. 13, 2007) [hereinafter UNDRIP].

[72]    Ratification Status for India , supra note 67.

[73]    José R. Martinez Cobo (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Prot. of Minorities), Study of the Problem of Discrimination Against Indigenous Populations , U.N. Doc. E/CN.4/Sub.2/1986/7 and Adds. 1–4 (1987).

[74]    ILO Convention (No. 169) concerning Indigenous and Tribal Peoples Convention in Independent Countries, art. 1(2), June 27, 1989, 1650 U.N.T.S. 383.

[75]    Rattan Lal Hangloo, Kashmiriyat: The voice of the past misconstrued , in The Parchment of Kashmir 28 (N. Khan ed., 2012) (citing the use of revolutionary phrases — “choun desh meun desh, Koshur Desh! Koshur Desh! (Your country, my country, Kashmir! Our country, Kashmir!)” — well before 1975).

[76]    Id. at 38.

[77]    UNDRIP, arts. 5, 8–15.

[78]    While some persuasive arguments have been made to UNDRIP’s customary, and thus binding status, they are not yet widely accepted. See Office of the High Commissioner, Indigenous Peoples and the United Nations Human Rights System 8 (2013), https://www.ohchr.org/documents/publications/fs9rev.2.pdf [https://perma.cc/JLK8-3WGF].

[79]     UNDRIP, arts. 5, 8–15.

[80]     See Saito , supra note 9, at 173. The Inter-American Court of Human Rights has also stressed the importance of protecting Indigenous land in particular, noting that: “relations to the land are not merely a matter of possession and production but a material and spiritual element.” Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 149 (Aug. 31, 2001).

[81]     UNDRIP, arts. 3–4.

[82]    See Office of the High Commissioner , supra note 78, at 3.

[83]    Id. at 8.

[84]    U.N. Charter art. 1(2).

[85]     The UN Charter includes guaranteeing respect for the “self-determination of peoples” as one of the UN’s core “purposes.” G.A. Res. 1514 (XV), supra note 1, preamble (emphasis added).

[86]    Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶¶ 130–135 (Can.).

[87]    G.A. Res. 2625 (XXV) (Oct. 24, 1970).

[88]    Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 136.

[89]    Id . at ¶ 134; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403, 618, ¶ 16 (July 22) (separate opinion of Yusuf, J.).

[90]    Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings , 31 Denv. J. Int’l L. & Pol’y 373, 373–79 (2003).

[91]    See Saito , supra note 9, at 192–93.

[92]    See id . at 193 (highlighting five principles: “Territorial integrity is a legal fiction;” “Peoplehood is constructed and defined by the people, not the state;” “Self-determination cannot be constrained by a paradigm of “universal” rights;” “States are not the only viable forms of political organization;” “Self-determination is a process and a continuing right.”).

[93]    Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. 554, ¶ 20 (Dec. 22); see also id. ¶¶ 25–26 (“At first sight [uti possidetis juris] conflicts outright with another one, the right of peoples to self-determination.”).

[94]     ICCPR, art. 1; ICESCR, art. 1.

[95]    See Anghie , supra note 42, at 5–6.

[96]    Duncan Kennedy, A Left Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation , in Legal Reasoning, Collected Essays 158 (2008).

[97]    See Noura Erakat, Justice for Some 7 (2019).

[98]    See Kennedy, supra note 96.

[99]    See Daryl J. Levinson & Jack L. Goldsmith, Law for States: International Law, Constitutional Law, Public Law , 122 Harv. L. Rev. 1791, 1822–23 (2009).

[100]   Kennedy, supra note 96.

[101]   See Saito , supra note 9, at 202.

[102]   Stand with Kashmir, a prominent group of Kashmiri activists, protested with the First Nations peoples of Australia to “stand against the devastation and lasting impact of settler colonialism on Indigenous communities.” Stand with Kashmir, Facebook (Jan. 28, 2021, 11:27 AM), https://www.facebook.com/StandWithKashmir/posts/2183498138449673 [https://perma.cc/GJE9-EKSF]. While they mention settler colonialism, concretizing that framework through the law, as this Note attempts, can embolden their case and highlight the parallels for the international community.

[103]   139 UN members recognize Palestine as an independent state. See Permanent Observer Mission of The State of Palestine to the United Nations New York , https://palestineun.org/about-palestine/diplomatic-relations/ [https://perma.cc/R84M-MU9D] (last visited Jan. 15, 2021).

[104]   Those unwilling to apply the occupation law reason that Kashmir, by way of signing the Instrument of Accession, is integral to the territory of the Indian state. See Bhan et al., supra note 56 at 315–16.

[105]   UNDRIP, art. 7.

[106]   Convention on the Prevention and Punishment of the Crime of Genocide, art. 2, Dec. 9, 1948, 78 U.N.T.S. 277.

[107]   See Wolfe, supra note 3, at 387.

[108]   See Gregory Stanton, Genocide Alert for Kashmir, India , Genocide Watch (Aug. 15, 2019), https://www.genocidewatch.com/single-post/2019/08/15/genocide-alert-for-kashmir-india [https://perma.cc/9M89-JUGK].

[109]   See Veracini, supra note 4, at 31 (“This is why merely calling settlements ‘neighborhoods’ or ‘communities’ and ensuring that settlements look like neighborhoods can never be enough. The necessary normalization cannot proceed unless these ‘neighborhoods’ become fully integrated in their surroundings and the relationship of opposition between settler and Indigenous collectives is erased or superseded, which for the reasons noted above is not possible.”)

[110]   Kashmir for Kashmiris , Stand with Kashmir , https://www.standwithkashmir.org/kashmir-for-kashmiris [https://perma.cc/45AR-UHZR] (last visited Apr. 30, 2021).

[111]    See Saito , supra note 9, at 175.

[112]   Kristy Gover, The Potential Impact of Indigenous Rights on the International Law of Nationality , 115 AJIL Unbound 135, 135 (2021) (“ Love-Thomas and Desautel extend this idea by establishing that the relevant connection can endure across state boundaries irrespective of state law and international law on nationality, as a constitutional right vested in Indigenous non-citizens.”).

[113]   Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 149 (Aug. 31, 2001).

[114]   Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion ,1971 I.C.J. 16, ¶ 2 (June 21) (separate opinion of Ammoun, J.).

[115]   See id. (“Sovereignty, which is inherent in every people, just as liberty is inherent in every human being, therefore did not cease to belong to the people subject to mandate. It had simply, for a time, been rendered inarticulate and deprived of freedom of expression.”)

*       Shaiba graduated from Harvard Law School in 2021 and is now clerking in the Central District of California. She has precious experience working in India and Myanmar and hopes to continue her work in international law going forward.

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Explained: The Kashmir Pandit tragedy

Thirty years ago, the exodus of kashmiri pandits from the valley began. a look at the events leading to and during the flight, the administration’s role, their plight since, and the dreams of return amid uncertainty..

It is 30 years since the “exodus” from the Valley of its minority Hindu Kashmiri Pandit community. The hotly contested circumstances of their departure between January and March 1990, the numbers, and the issue of their return are an important side to the Kashmir story that has fed into the Hindu-Muslim polarisation in India over the years, in turn fuelling the Hindu-Muslim chasm in the Valley. The exodus took place at the same time that the BJP was upping the ante across northern India, and over the years, the plight of Kashmiri Pandits has become a potent Hindutva issue.

The run-up: 1980s to 1990

In the lead-up to the events of 1990, Kashmir was in ferment. Sheikh Abdullah had died in 1982, and the leadership of the National Conference passed on to his son Farooq Abdullah , who won the 1983 election. But within two years, the Centre broke up the NC, and installed dissident Ghulam Mohammed Shah as Chief Minister. This led to huge disaffection and political instability. The Jammu & Kashmir Liberation Front (JKLF) stepped up its activities, and the hanging of the militant leader Maqbool Bhat in 1984 added to the sense of foreboding. In 1986, after the Rajiv Gandhi government opened the Babri Masjid locks to enable Hindus to offer prayers there, ripples were felt in Kashmir too.

In Anantnag, the constituency of then Congress leader Mufti Mohammad Sayeed, there was a series of attacks on Hindu temples, and shops and properties of Kashmiri Pandits, blamed on separatist and secessionists. In 1986, as opposition to the Shah government grew, Rajiv Gandhi resurrected Farooq Abdullah, who became CM once again. The rigged election of 1987 after which Abdullah formed the government was a turning point at which militants took the upper hand. The 1989 capitulation to the JKLF in the kidnapping of Mufti Sayeed’s daughter set the stage for the next decade.

By then, the Pandits had begun to be targeted. The Valley’s BJP leader Tika Lal Taploo was shot dead on September 13. Neel Kanth Ganjoo, a retired judge who had sentenced Maqbool Bhat to death, was shot dead outside the J&K High Court in Srinagar on November 4. Journalist-lawyer Prem Nath Bhat was shot dead in Anantnag on December 27. Hit lists of Pandits were in circulation. Waves of panic hit the community, especially after a local newspaper published an anonymous message, allegedly from the Hizb-ul Mujahideen, asking Pandits to leave.

The night of January 19, 1990

Matters came to a head on January 19. By then, the Farooq Abdullah government had been dismissed and Governor’s Rule imposed. According to accounts published by many eminent Kashmiri Pandits, there were threatening slogans over loudspeakers from mosques, and on the streets. Speeches were made extolling Pakistan and the supremacy of Islam, and against Hinduism.

The Kashmiri Pandit community decided to leave. On January 20, the first stream began leaving the Valley with hastily packed belongings in whatever transport they could find. A second, larger wave left in March and April, after more Pandits were killed.

On January 21, the CRPF gunned down 160 Kashmiri Muslim protesters at the Gawkadal Bridge, which has come to be known as the worst massacre in the long history of the conflict in Kashmir. The two events — the flight of the Pandits and the Gawkadal massacre — took place within 48 hours, but for years, neither community could accept the pain of the other, and in some ways, still cannot, as each continues to talk past the other.

According to some estimates, notably by the Kashmiri Pandit Sangharsh Samiti (KPSS), of 75,343 Kashmiri Pandit families in January 1990, more than 70,000 fled between 1990 and 1992. The flight continued until 2000. The KPSS has placed the number of Kashmiri Pandits killed by militants from 1990 to 2011 at 399, the majority during 1989-90. Some 800 families have remained in the Valley through these three decades.

Read | Kashmiri Pandits observe ‘Holocaust Day’ to mark 30 years of mass exodus from Valley

Role of the administration

The other contentious question about the exodus is the role played by the administration, and more specifically that of the J&K Governor, Jagmohan.

Newly appointed, he had arrived in Srinagar on January 19. The Kashmiri Muslim view of the exodus is that he encouraged the Pandits to leave the Valley and thus gave a communal colour to what was until then a non-religious Kashmiri cause. The Kashmiri Hindu view is that this is a disingenuous interpretation. They believe that Kashmiri Muslims, with whom they had lived amicably for centuries, drove them out with a vengeance in a frenzy of Islamism that they could not have imagined even months earlier. The truth, many commentators have concluded, may have been somewhere in the middle.

Wajahat Habibullah, then a senior official in the J&K government and posted in Anantnag in 1990 as Special Commissioner, has written (Citizen, April 2015) that in March 1990, several hundred people gathered in front of his office demanding to know whey the Pandits were leaving and accused the administration of encouraging them to go, “so that the Army would be free to unleash its heavy artillery on all habitations”. Habibullah denied this and told them that the Pandits could hardly be expected to stay when every mosque was blaring threats and members of their community had been murdered. He asked Kashmiri Muslims to make Pandits feel more secure.

Habibullah wrote he also appealed to Jagmohan “that he telecast an appeal to Pandits that they stay in Kashmir, assuring their safety on the basis of the assurance of the Anantnag residents. Unfortunately, no such appeal came, only an announcement that to ensure the security of Pandits, ‘refugee’ camps were being set up in every district of the Valley, and Pandits who felt threatened could move to these camps rather than leave the Valley. Those Pandits in service who felt threatened were free to leave their stations; they would continue to be paid salary…”

Other commentary has pointed to how the government organised transport for fleeing Pandits so that they could get to Jammu.

The question of return

The fleeing Pandits did not think they would never return to the Valley. But as the situation in Kashmir spiralled into a full-blown militancy, return began to look remote if not impossible. As the numbers arriving in Jammu increased from thousands to tens of thousands over the first few months of 1990, a mostly middle-class community found itself living in tents in squalid, filthy camps far removed from the homes they had left behind. Those who had means rebuilt their lives elsewhere in the country — Delhi , Pune , Mumbai and Ahmedabad have Pandit populations, also Jaipur and Lucknow — or went abroad. A township of two-room tenements called Jagti was built in Jammu in the last decade to house 4,000-5,000 Pandit families who remained there. In addition, there are hundreds of families living in government tenements in Purkhoo on the outskirts of Jammu, in Nagrota and in Muthi. Some built new homes and or moved into rented places.

The longing to return to the Valley did not diminish over the years, though it may have become more an idea than a real ambition. Successive governments have promised that they will help this process, but the situation on the ground in Kashmir has meant this remains only an intention. The efforts to resettle Pandits in the Valley in the last two decades have seen ghetto-like structures come up in various parts of Kashmir, ringed by concertina wire with heavy security, underlining that normal life is impossible. There is an acute realisation in the community that the Valley is no longer the same that they left behind in 1990. In many cases, their properties were either immediately vandalised or sold quickly by the owners to Kashmiri Muslims. Many fell into disrepair.

As the BJP continues to promise that Kashmiri Pandits will return, and #HumWapasJayenge trends on social media, Kashmiri Muslims also see the return of Pandits as essential, but reject the idea of their settlement in secured camps as a replication of Israel-like Jewish settlements in the West Bank.

On August 5, 2019, when the government did away with special status to J&K, among the loudest to cheer were Kashmiri Pandits, who saw it as a long pending “revenge” for what had happened to them three decades ago. Yet their return looks as difficult as it ever did.

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The exodus of kashmiri pandits.

The gathering of the storm

September 14, 1989 was a sunny day when Pandit Tika Lal Taploo, President of Bharatiya Janata Party (BJP), Kashmir Chapter and a lawyer by profession, came out of his home in Bhan Mohalla locality of Srinagar and headed to the High Court where he practised law. As he stepped out, he saw a small girl crying. On recognizing that the child was of his Muslim neighbour, he lifted her in his arms, turned round and went straight to his neighbour to ask why the child was crying. The mother of the child said that her daughter needed some items of writing material but she had no money to buy these. Tika Lal took out a five rupee note from his pocket and handed it over to the woman. To the child he said, “My child, school is the place for you”.  

Tika Lal left them and turned to go to his work place. He had hardly walked 70 steps when three persons with faces wrapped in dark cloth appeared at the blind turn of the lane. Two of them kept standing while the third moved a few steps forward and came in line with Tika Lal. He took out a weapon, aimed at Tika Lal and said, “You are the BJP leader! Come then”. He pulled the trigger and bullets pierced the chest of Tika Lal, who fell down dead in a pool of blood. The Bar fraternity, mostly Muslims, organized a condolence meeting in the premises of the High Court and at Tika Lal’s residence, the one who cried and sobbed the loudest among a large number of mourners, was the mother of the child, Tika Lal had lifted in his arms just moments ago.

Barely three weeks after this murder in Srinagar, unknown gunmen shot and killed another Kashmiri Pandit (Kashmiri Hindu), retired Judge Nilakanth Ganjoo in broad day light in Maharaj Bazaar, Amira Kadal. He had flown in from New Delhi and was headed homewards. Obviously, someone was keeping track of him while in close contact with the gunmen. Justice Ganjoo, Sessions Judge in Srinagar had given a death sentence to Maqbool Bhat, the leader of Jammu & Kashmir National Liberation Front, whom he had found involved in the murder of Amar Chand, a CID Police Sub-Inspector of Jammu and Kashmir Police, resident of Nadihal village of Baramulla district.  These two killings of Tika Lal and Nilakanth Ganjoo sent a shock wave down the spine of the Pandit minority community of the Kashmir Valley. 

Gunning down of two outstanding members of their community in the autumn of 1989 within a span of only three weeks was ominous for the Pandits. It made them skeptic towards the law and order situation in the State and they started to feel deeply concerned about security of life. What baffled them more was that two Muslim witnesses on whose deposition Judge Ganjoo had based the judgement roamed as freemen. That evening, Radio Kashmir announced the incident in just one sentence; “Unknown assailants gunned down a former Sessions Judge in Maharaj Bazaar, Srinagar”. Fear-stricken Pandits, with anguish written large on their face, huddled up in their homes to think over the seriousness of the threats to which they were exposed. Was death looming large over their heads? Their apprehensions were not unfounded.

Elections and Muslim United Front (MUF)

Two months before  the killing of BJP leader Tika Lal Taploo, Jammu and Kashmir Chief Minister  Farooq  Abdullah had ordered the release of a number of Kashmiri Muslim youth from Srinagar jails, who were alleged to have crossed the Line of Control (LoC) and received training in terrorist camps in Muzaffarabad, the capital of Pakistan Administered Jammu and Kashmir. They were the early activists of Muslim United Front (MUF), a newly formed political group that contested 1987 elections to the Legislative Assembly  of Indian Administered Jammu and Kashmir and were charged with sedition against the State. MUF had strongly protested against alleged rigging of elections by National Conference-Congress combine, which later on formed the coalition government with Farooq Abdullah in the driver’s seat. MUF claimed that National Conference musclemen had let loose reins of terror during the elections. Their polling agents were assaulted, manhandled, abused and humiliated. Bringing National Conference’s oppressive measures and acts of intimidation to the notice of the Election Commission evoked no reaction from the latter. It convinced MUF that the entire election machinery was functioning in a partisan manner. Although they had their reasons to lose trust in the fairness of the Election Commission, the Kashmiri Pandits had no role in these political rivalries. A community with barely 3 per cent population had no say in anything, yet the community was to be made a scapegoat in this political tug of war.

MUF, the frontline activists of Kashmir’s Jamaat-e-Islami, projected the rigging episode as a step towards suppression of Muslim predominance in the State. Armed resistance was the option and there were takers of the option in the Valley of Kashmir as well as in Pakistan Administered Jammu and Kashmir. The idea of Islamic resistance movement highly suited late Zia-ul Haq’s (Military Dictator of Pakistan) ‘Operation Topac’ plan for Jammu and Kashmir, and Pakistan’s super intelligence organization, Inter-Services Intelligence (ISI) came into action.

Jammu Kashmir Liberation Front (JKLF)

ISI planned roping in of political activists in Pakistan Administered Jammu and Kashmir and their UK-based strong diaspora. The Jammu Kashmir Liberation Front (JKLF), altogether with its twin centers in Pakistan Administered Jammu and Kashmir and UK, initiated armed insurgency in the Kashmir Valley in the mid-1980s with outright support of ISI.  It opened its account of killing Hindus with the kidnapping and subsequent murder of Indian Assistant Commissioner Ravindra Mhatre in Birmingham in 1984. Amanullah Khan, originally from Astore in Gilgit Baltistan (Pakistan Administered Jammu and Kashmir) but settled in Luton, UK, faithfully carried out ISI’s instructions to his gangsters and coordinated an armed insurgency in the Kashmir Valley. JKLF secretly raised its cadres in the Valley and claimed the killings of Pandits beginning with the murder of Tika Lal Taploo.

Acting under the instructions of ISI, JKLF adopted a two-pronged strategy for activism in the Kashmir Valley. These were (i) Kalashnikov and (ii) a massive disinformation campaign. JKLF commanders drew power from Kalashnikovs that flowed to them from Pakistani arsenals through their handlers in training camps in Pakistan Administered Jammu and Kashmir. The Pakistani intelligence agencies laid much emphasis on launching a massive disinformation campaign across the world saying that there was an indigenous freedom movement in the Kashmir Valley against ‘Indian occupation’ and that Pakistan was only extending moral and diplomatic support to it. Using JKLF as its hand tool, ISI made deep inroads into the large diaspora of Pakistan Administered Jammu and Kashmir in UK and in the Kashmir Valley. Many youth in Pakistan Administered Jammu and Kashmir and the Valley were enrolled as activists and contributors to the political formation of JKLF. ISI opened numerous terrorist training camps close to the Line of Control (LoC) where retired Pakistan army officers were employed as trainers for the youth from the Kashmir Valley. They received short and long term training in fighting tactics, after completion of which they were given arms and ammunition and asked to return/infiltrate into the Indian administered part of Jammu and Kashmir for undertaking terrorist and subversive activities.

Realizing that the diaspora of Pakistan Administered Jammu and Kashmir could play a crucial role in fomenting armed insurgency in the valley, Pakistani intelligence agencies also adopted a two pronged strategy. First the people in Pakistan and Pakistan Administered Jammu and Kashmir had to be indoctrinated with the concept of Islamic Jihad in which the Hindu as kafir (infidel) becomes the target. Hating Hindus became the refrain of this massive propaganda. The people were told that Muslims were suppressed and oppressed by the Hindus in Kashmir. The second part of the strategy was to whet the lust of the activists in Pakistan Administered Jammu and Kashmir for domination over the entire State of Jammu and Kashmir, if the Valley was cleansed of its Hindu population, no matter howsoever tiny and insignificant. They were told that once the Kashmir Valley was cleared of impure Indian and Hindu presence, they would be the masters of that part and enjoy the prosperity to their heart’s content as Kashmiris would be nothing more than the hewers of wood and drawers of water for them.

A number of Kashmiri youth whose release order from the jail was issued by the then Chief Minister Farooq Abdullah were among the first batch of Kashmiri youth who had crossed over and landed in the terrorist training camps in Pakistan Administered Jammu and Kashmir. While returning to Kashmir they had been arrested by the Border Security Forces and handed over to the local Police which registered cases against them. The top four among them, namely Hamid Sheikh, Ashfaq Wani, Javed Mir and Yasin Malik were the pioneers of the armed insurgency in the Valley, with the assignment to begin with decimation of the Pandit community. The killings of the two prominent leaders referred to at the opening of this Study-paper, has to be seen in this background.

Killings of more Kashmiri Pandits followed soon after. Panun Kashmir, the frontline organization of internally displaced Pandits in Jammu, submitted to the Indian National Human Rights Commission a detailed list of 1341 Pandit killings in the Valley or other parts of the State like Kishtwar and Reasi by armed insurgents belonging to JKLF and other Jihadi groups who were rivaling with each other in perpetrating atrocities on Pandits. This number includes those who disappeared or were fished out from rivers and were never recorded in police records.

It was widely rumored that clandestine crossing of the Line of Control by Kashmiri youth for receiving training and arms in training camps in Pakistan Administered Jammu and Kashmir was facilitated by bribing the Indian Border Security Forces. The slogan “to Sopore, Kupwara (Cities close to the LoC) and the other side” was on the lips of adventurous Kashmiri youth at that time. The disinformation strategy had two components; Feeding international as well as vulnerable sections of the Indian press, both print and electronic, with false and fabricated stories, lies and canard of Indian army’s ‘oppression and suppression of Kashmir’s nationalist uprising’. The second was the indoctrination of Kashmiri Muslim youth lured to the terrorist training camps in different places in Pakistan Administered Jammu and Kashmir with hate-Hindu and hate-India propaganda. The second part of this strategy spelt disaster for the Kashmiri Pandit community when these indoctrinated and trained gunmen returned to the Kashmir Valley adequately equipped with arms and indoctrinated with rabid fundamentalist ideology.

Perhaps, it is just possible that in the training camps, these JKLF gunmen were not strictly told to unleash terror against the Kashmiri Pandit community as a whole. But a young Muslim indoctrinated with fundamentalist ideology and with a deadly automatic weapon called in his hands wanted a target - Maligned Kashmiri Pandit was the sitting duck. Amanullah Khan, the chief of JKLF had confessed the same to a Pandit rights activist in a seminar in the European Parliament in Brussels in 1992. When the rights activist told him that his so-called freedom fighters had let loose brutal killing, rape, kidnapping, intimidating, issuing warnings through loudspeakers to run away from the Kashmir Valley to the Pandits, how could that be called a ‘freedom movement’. Amanullah Khan replied that was not the agenda but ‘ the boys back to Kashmir with weapons became uncontrollable. They attacked Pandits because the Pandits did not join the armed struggle’ .

After the National Conference-Congress coalition government resigned under the pressure of the militants, armed youth almost ruled the lawless Valley of Kashmir. Farooq Abdullah went to London to play golf and his dismissed colleagues in the Council of Ministers hid their heads in Jammu where they illegally occupied government bungalows and some of them entered into secret liaisons with the Kashmiri insurgency leadership.

Change of plans

Alarmed at the success of JKLF cadres in dislodging the elected government in Srinagar (Summer Capital of Indian Administered Jammu and Kashmir), and noticing the rising crescendo of anti-India sentiment among the Kashmiri people in the Kashmir Valley, ISI changed the goal post and came out in its true colors. ISI found it unavoidable to send a message of ‘thus far and no further’ to the JKLF. ISI sponsored a parallel terrorist group, named Hizbul-Mujahideen (HM). Rivalry between the two ideologically divergent groups resulted in the killing of many JKLF leaders and activists in the Valley. Nevertheless, Hizbul Mujahideen carried forward the policy of Pandit massacres initiated by the JKLF. In response, Amanullah Khan gave a call for a ‘Great March’ into Indian Administered Jammu and Kashmir by mass violation of the ceasefire line at the border town of Uri. Panicked by the consequences of violating the Line of Control by the JKLF leadership, and totally opposed to JKLF’s proclaimed ideology of an United Jammu and Kashmir, Pakistani troops opened fire on the obstinate marchers killing at least 17 of them and wounding many more. This was 1992, the second year of insurgency in Kashmir.

Thereafter ISI’s strategy of Kashmir insurgency changed. It sidelined JKLF charging its proclaimed ideology of an Independent, United Jammu and Kashmir as diametrically opposite to Pakistan’s claims to the entire State. ISI raised new armed groups in the Kashmir Valley, dozens of them under different names to play the central role. Most of them were affiliated to numerous fundamentalist-terrorist organizations based in Pakistan receiving all round support like arms, ammunition, money, logistics, equipment and direction from ISI’s Kashmir chapter. In due course of time, all these armed groups were sucked up by Pakistan’s two major terrorist organizations like Lashkar-e-Taiba and Jaish-e-Muhammad .

Days after the killing of Tikalal Taploo on September 14, 1989, a Kashmiri Pandit published a letter in Kashmir Times asking insurgency leadership to publicly spell out their policy towards Kashmiri Pandits in the light of the murder of a Pandit political leader. The response in next day’s issue said, that the Pandits should join the armed movement for the liberation of Kashmir from the ‘occupation of India’ failing which they should be prepared for any fate.

In private and in public, in homes and in mosques, Kashmir Valley’s Muslim society was in revolt. In their mass congregations, India was painted as the occupier and the Kashmiri Pandits were dubbed as the spies of India. The tag that Pandits are the spies of India in Kashmir never left them. After the 4 th of November, 1989, the day Judge Ganjoo was gunned down, the scenario envisaged by Zia’s ‘Operation Topac’ began to unfold layer after layer. Firing here and a blast there foretold of coming events. Muslim clergy intensified their hate Hindu tirade in public and private assemblies and in Friday congregations, they poured venom in their sermons and projected Kashmiri Brahmans - this bare 3 per cent religious minority -  a source of threat to the 97 per cent Muslim majority in the perceived Islamic theocratic State. Outright denigration of India, Indian democracy, Indian army and establishment were meant to unnerve the Pandits.

It was 19 th of January, 1990 and days were cold and nights bitter, though there was no snow on the ground.  Around 9 PM, loud and thunderous Islamic and pro-Pakistan slogans raised collectively by a multitude of humanity and relayed through powerful loudspeakers almost pierced ear drums. These slogans were not new to Pandits in the Valley of Kashmir as they were familiar to such outbursts, however the very odd hour, the tumultuous bang and the intriguing spontaneity besides the pressing loudspeakers into service, all spoke threateningly that a storm was brewing in the Kashmir Valley.

Suddenly, telephone bells began ringing loudly in the houses of most of the Pandits in Srinagar. Mobile phones had not been introduced then. Each caller on the other end of the line asked his relative, friend or acquaintance whether they were safe. This question carried more meaning underneath its simple words. The callers told their respondents to come out of their houses in that dark and dreary night and see for themselves what a strange scenario was unfolding on the streets and squares of the city of Srinagar. Scenes on the streets, squares and open spaces in the city were to be seen to be believed. Masses of Muslim population, young, old, children, and women came out of their homes, crowded the streets, gesticulating vigorously and yelling slogans in favor of Islam, Pakistan and the insurgency. Crowds of people carried rugs, carpets, mats and furnishing and spread it out on the streets and squares. They brought wood and lit bonfires to keep their bodies warm. People sat, squatted, danced, shook fists made violent gestures as loud speakers were fixed and microphones blurred a mix of Quranic verses, revolutionary songs, anti-India vitriolic and the supremacy of Islamic faith, all by turn making rounds from one to another speaker, each speaker more rabid fire brand than his predecessor. Islamic slogans, profuse admiration for Pakistan, stories of the heroes of early Islamic conquests, the paradise created by Allah for the Momin (pure) and hell fire for the kuffar (unbelievers) etc. were the major themes of their outpouring. Speakers praised Islam as the best religion God had sent through the Prophet. The crux of these surcharged utterances was that all symptoms of kufr (heresy ), butparast (idolatry) and dualism as with the Hindus had to be cleaned from daru’l salam (the place of peace). Spirited stories of the heroes of early Islam like Omar and great commanders like Sa’d bin Waqqas and Tariq and others were recounted conveying that Islam had not lost the strength of destroying non-believers. This rant continued till wee hours. The message went to the Pandits that they were in the line of fire.

Like frightened pigeons, the Pandits huddled up in their nests and kept vigil all night. Not a single soul came out of his house to go to the temple for prayers or to Hari Parbat heights to pay usual obeisance to the deity. The night-long tirade against non-Muslims on the one hand and lionizing of Islamic war lords on the other, snatched whatever remnant of peace of mind they were left with. The question that caused them grave distress was how they could live in the Valley of Kashmir without the goodwill of the majority community with which they have had centuries of good and brotherly relations. To Kashmiri Pandits his Muslim neighbor was neither an enemy nor a rival just because of their very insignificant rather negligible numbers. For the first time in the history of Jammu and Kashmir this open and unabashed tirade was let loose against them on such a massive scale. The administration collapsed and law and order were thrown to winds. The police deserted their posts and the Pandits were left to themselves with their survival hanging in balance.

The Pandits found that overnight their neighbors had changed color. Their idiom changed as if they had thrown off the mask they wore for such a long time. Pandit and Muslim neighbors known to one another for generations began to behave as strangers. Suspicions loomed large and in a few days the entire atmosphere changed and the Pandit came to be called ‘the other’ . The government was knocked out by a single night of defiance and revolt and the next morning not a single policeman was visible anywhere in the city. They had withdrawn to their barracks or hid in their homes as the administrative machinery had collapsed and law and order crumbled. From the next morning viz. 20 th of January, 1990 it was the rule of the mosque, the priest and the Islamists. Loud speakers fixed to mosque tops, blurred uninterruptedly cautioning the Pandits to leave the Valley. The refrain of their slogans was that they wanted their Kashmir without Pandit males but with their women folk. Traditional Kashmir Muslim society has always been respectful of Kashmiri Pandit womenfolk and this shameful and shocking slogan showed that only a fringe section of Kashmir Muslim society indoctrinated in hate mania was out to disrupt communal harmony.

However, the hate campaign, carried forward through barbaric and inhuman means of violence, struck fear among the entire Kashmiri population to the extent that nobody was prepared to show even the slightest goodwill to the Pandits. Al Safa , a popular Urdu daily of Srinagar minced no words in telling the Pandits to leave the Valley within hours if they wanted to save their lives and honor. Loud speakers fixed on mosque tops blurred a profusion of warnings of similar type. More and more anti-India demonstrations were to be seen on the streets in which demonstrators were mad with anger, hate and revenge. Fear stricken Pandits did not find any source that could assure them at least the safety of life. In its evening news bulletin, Radio Kashmir took the name of the Kashmiri Pandits gunned down by terrorists. The gruesome stories of murder of hapless Pandits unnerved the community members. There was no sense of approaching majority community for protection and help because the neighbors, too, were in the grip of fear heightened by the collapse of law and order. The dynamics of secret and selective militancy so rigidly drilled into the heads of the actors, had reached a level that the son who returned after training never disclosed to his parents and family members where he had been and on what mission. Indoctrination was of the level that even parents began to fear their sons. This is best explained in the television interview which Bitta Karate gave to the security officials after he was arrested and interrogated by security agencies.

Bitta Karate was one of the top JKLF gun wielders who had crossed over to Pakistan Administered Jammu and Kashmir in 1989, and received training and indoctrination in the camps there. In the interview, the journalist asks him on whose behest did he carry out the killing of the Pandits. He replied that he obeyed the orders of his senior Ashfaq Wani and Amanullah Khan. When asked if his senior told him to kill his parents would he do that as well,  he emphatically said, “ Yes” . This speaks of the type of barbarianism that was sucking the Valley into its vortex. Asked how many Kashmiri Pandits he had gunned down, Bitta replied, “I lost the count after killing 22 of them”. When asked who was the first victim of his bullets he took the name of one Satish Kumar Tiku, who was a friend (and perhaps also a class fellow) of Bitta Karate, and occasionally visited him in his Srinagar home. Bitta Karate had returned after undergoing training in terrorist camps and Satish, not knowing where his friend Bitta had disappeared for a while, went to see him in his home. He found Bitta cleaning a gun (AK 47). Surprised on seeing the weapon Satish asked him what it was. Bitta avoided the question and said that it was a toy he played with. Naïve as Satish was, he took it lightly and soon forgot the incident and left his friend. But Bitta was greatly disturbed and went to see the ‘commander’, related to him the story and asked for directions. The commander told him to finish Satish lest he discloses it to police. Bitta went to Satish’s house and called him to come out of his home. No sooner did Satish step out on the street, Bitta, in a flash of a moment, aimed his China made pistol at him and fired shots that pierced through Satish’s heart. He fell down dead in a pool of blood. Brandishing his pistol in the air in broad day light, Bitta scared the pedestrians and walked away in complete confidence. Today the killer of 22+ Pandits is roaming a freeman in Srinagar city.

Yasin Malik, a terror comrade of Bitta was arrested in connection with the gunning down of six uniformed Indian Air Force personnel at Barzulla, Srinagar waiting at a bus stand. Yasin Malik riding the pillion of his friend’s bike opened fire at the standing airmen with an automatic weapon, killing all of them and the bike riders sped away. Yasin Malik, later on became the chief of JKLF in Indian Administered Jammu and Kashmir after the party split.

Ms. Girija Tickoo, a Kashmiri Pandit teacher in a government school in Kupwara district was coming out of the school building after collecting her salary when she was accosted by gunmen who kidnapped her to some unknown place where she was gang raped. The assailants, fearing she might disclose their identity, forcibly put her under a machine saw and cut her body into pieces. Avtar Krishan Koul, Deputy Director Food Supplies was gunned down by masked terrorists in his office. He had enquired into the disappearance of some truckloads of food grain supplies reportedly taken away by JKLF activists at gun point. Lassa Kaul, Director Doordarshan (Television) Srinagar was gunned down outside his house in Bhan Mohalla. He was accused of relaying anti-militancy news. Pandit Premnath Bhat of Anantnag was a lawyer by profession and a very popular social figure much liked by people of all communities. Masked Jihadis barged into his house, dragged him out and emptied on him their magazines of their guns. Professor Nilakanth Raina (Lala) of Jammu and Kashmir Government Higher Education Department, an eminent historian and researcher was called by masked and armed gunmen at about dusk at his home in Fateh Kadal locality in Srinagar and gunned down at point blank range. Professor Nilakanth was conducting researches into the Buddhist antiquity of Jam’a Masjid mosque in Nowhatta, Srinagar. In November 1989, Sheela Tikoo was gunned down near Habba Kadal. On 4 th of March, 1990, Mrs. M.N Paul, the wife of an Inspector of BSF was kidnapped, raped and then murdered because she happened to be the wife of a government official. Also in March 1990, B.K. Ganjoo, an engineer in Telecommunication Department was brutally gunned down while he tried to hide himself in an empty drum used for storing rice. The assailants climbed the third floor of his house to catch hold of him. His wife begged the murderers to kill her too but only to receive the sadist remark, "there should be someone left to cry over his dead body". In April 1990, a nurse named Sarla Bhat was kidnapped and continuously raped for several days before her dead body was thrown on the roadside. In May 1990, Mrs. Prana Ganjoo and her husband Prof. K.L. Ganjoo were kidnapped in Sopore where the woman was raped and then both of them were murdered. In June 1990, Mrs. J.L. Ganjoo, her husband and her sister-in-law (husband's sister) were killed in their home in Ban Mohalla, Srinagar. In July 1990, a working woman, namely Teja Dhar was shot dead on the roadside in Ali Kadal, Srinagar. In July 1990, a Pandit lady named Nanaji was gunned down on the roadside in Batamaloo, Srinagar. In July 1990, Dr. Shani was locked up in her house in Karan Nagar and then the house was set on fire. Flames consumed her alive. In August 1990, Babli Raina was raped in front of her family members in her house and then shot dead. One particular case which literally butchered the tradition of tolerance and communal harmony as well as the tradition of humanism in the Valley of Kashmir happened on 30 th of April 1990, when four armed persons forced entry into the house of Sarwanand Koul Premi in Anantnag district. They dragged him out of his house along with Virender Koul, his 27-year old son for 'enquiry' and in the nearby jungle, the father and son both were gunned down. Sarwanand Koul, a poet and scholar, was 64 years of age and had translated the Bhagwat Gita into Kashmiri. A copy of the Quran was preserved in his house which he used to read occasionally.

It is not possible to give details of all Pandit killings in this Study paper. Panun Kashmir, a political organization of the displaced Pandits, has published a complete list of about 1341 Kashmiri Pandits who were killed by Jihadi armed men in the course of armed insurgency in the Valley of Kashmir in 1990 and after. This includes the disappeared and fished out Pandits, whose identity was not established and the police kept no record of them. Interestingly the J&K State government reduced the number of Pandits killed by militants below 200. According to critics, this distortion of numbers has been done deliberately to escape the censure by the UN, which according to Tokyo Convention has recognized killings beyond 200 as genocide. It must be noted that the National Commission for Human Rights of India while considering the appeal of the Kashmiri Pandits, said that they were subjected to killings ‘akin to genocide’.

Apart from individual killings, Kashmiri Pandits were also subjected to horrific massacres as Jihadi insurgency fanned all over the Kashmir Valley and its adjoining areas. Here is appended, a chart that gives some information about mass killings of the Kashmiri Pandits and (other) Hindus in post-exodus days.

As disorder and lawlessness gripped the Valley, the Pandits shivered with fear. This was the atmosphere of fear and lawlessness in which the Pandits became homeless. In these circumstances it was but natural that the entire Pandit community stood fear-stricken and then followed the impulse of running away from this cauldron. The entire community had lost the confidence in the majority community. 

Members of a high ranking delegation of parliamentarians visiting Srinagar to assess the ground situation quarrelled among themselves on seating arrangements in the meeting room.  They showed scant understanding and interest in the critical situation in the Valley and the sword of death dangling on the head of the vulnerable minority. The Pandits found that the Indian government, too, had written them off. Threatened and defenceless Pandits had no option but to leave their millennia old homeland, homes, hearths, properties, jobs, business, farms, orchards, temples, shrines, cremation grounds, Gods, deities, and the ashes of their forefathers. They engaged whatever means of transportation they could manage, took a bagful of clothing and headed out of the Valley to unknown and un-seen destinations. They left in trickles for fear of being captured en route and butchered in cold blood. The process continued for the first two-three months of 1990. Despite the fact that thousands of soldiers were garrisoned in Badami Bagh Cantonment, Srinagar, not one soldier escorted the fleeing fugitives. In spite of the silence of the Kashmiri Muslims on the atrocities committed against the Kashmiri Pandits, the general masses of Kashmiri Muslims did not obstruct the exit of the Kashmiri Pandits and facilitated their safe journey out of the Kashmir Valley.

The Pandits of Kashmir, who had braved numerous spells of forced conversions and destruction of their civilizational symbols during six centuries in the past, were extirpated from their five thousand year-old homeland at a time when India was governed by a Democratic and Secular dispensation. Seeing the current rise in Islamic fundamentalism and radicalization of the youth of the Valley of Kashmir, it can be concluded that the Kashmir Valley’s ethnic cleansing is complete and everlasting. They have been banished from their birth place not for decades or centuries or millennia, but for all times to come.

After their departure the houses of the Kashmiri Pandits remained abandoned in the Kashmir Valley. Miscreants looted household goods, furniture, kitchenware, accessories, electronic gadgets, small libraries, papers, files and documents. Electricity and sanitary fittings were pulled out, taken away and sold. In most cases even the doors and windows of these houses were removed and stolen. The bare structures were set on fire if these did not happen to be in densely populated areas. Large number of houses and properties went on distress sale. Shops were grabbed by the locals, though a handful of them fetched the owner some money. In villages, the ruins of torched Pandit’s houses were grabbed and showed as Muslim Endowment (Awqaf) property in revenue records. If any Pandit was able to sell his property somehow, he had to remain content with its throw-away price. Landed properties of Pandit shrines, temples and crematoriums stand largely vandalized and usurped. The ethnic cleansing of the Valley of Kashmir was completed.

The Kashmir Valley has become a theocratic Islamic place within the secular Indian Union. The people of the Kashmir Valley, with hundred per cent Muslim population (barring a few negligible minorities which account for less than 1%), are increasingly identifying themselves with the wider Sunni Muslim world. The Kashmir Valley does not have a viable economy and it depends on huge financial doles from New Delhi under one or the other pretext. However, the State Government is usually unwilling to render any account for these receipts which results in no accountability and leads to corruption. Many members of the political leadership of the Kashmir Valley, including the Kashmiri separatists are mostly ambivalent and their pro-Indian or pro-Pakistani credentials are subject to the quantum of funds provided.

The return of the Kashmiri Pandits to the Kashmir Valley depends on the goodwill of the majority community in the Valley. That is no more to be found nor is there wisdom enough within the leadership of the Kashmir Valley to understand how important it is to live in harmony with people of other faiths. The Kashmiri Pandits should understand that the fetters they wore for seven centuries are broken once and for all and their wings should take them over to new climes and lands.

Diasporas have, also, built great civilizations. 

July 2017. © European Foundation for South Asian Studies (EFSAS), Amsterdam

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Reinventing Agency, Sacred Geography and Community Formation: The Case of Displaced Kashmiri Pandits in India

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ashish saxena

In the postmodern world, the so-called ‘pre-established’ identities have become questionable in the senses of belonging to well-defined communities with stable self-perception and also with recognized codes of behavior. The renewed interest in identity and the construction of knowledge from the 1990s onwards has provoked a shift from considering communities as ‘given’ to investigating the power relations and discourses by which they are constantly defined and redefined. Substantiating the domain of religion as one where ‘magic bullet’ explanations are rife, the political connotation of ‘identity’ vis-à-vis religion also links contemporary religion to identity. In India, the varieties of social collectivities such as castes, religion, clan, communities etc have tended to be shaped in the name of ethnic and social identities. Thus it is high time to study the status of religio-cultural practices in the modern world and to identify their relevance in contemporary society. This paper no...

The Changing World Religion Map, Edited by S.D. Brunn

At the intersection of politics and religion, gender roles and performances can become a point of tension and concern. This chapter explores the complex and contradictory ways that gender becomes a site for the politicization of religious identity in the Leh district of India’s Jammu and Kashmir State. As global and national understandings of what it means to Buddhist or Muslim have gained circulation, and religion has become a political force in post-partition South Asia, the relationship between Leh’s Buddhist majority and the Muslim minority has deteriorated. Political conflict between Buddhists and Muslims has been articulated in part through women’s bodies and new interpretations of religious identity are emerging. Both Buddhists and Muslims are developing an embodied religious boundary by forcibly preventing inter-religious marriages, and new interpretations of religious doctrine discourage women from using family planning. These emergent practices attend and sometimes conflict with new expressions of religious identify from dress to vegetarianism. Drawing on over a year of ethnographic work and including interviews, survey data, and participatory oral histories in Leh district, this chapter engages with the ways that Buddhist and Muslim women contend with the politicization of religion and life as a religious minority on the contested borders of the Indian nation.

International Journal of Hindu Studies

Haley Duschinski

Dustie Spencer

The NEHU Journal

Somjyoti Mridha

This paper primarily engages with Kashmir Pandit narratives that have transpired after the community was evicted from the Kashmir Valley in the 1990's. The outbreak of armed struggle for Azadi in Kashmir in the 1990's led to the complete breakdown of the social fabric of Kashmir. Indiscriminate attacks on prominent Kashmiri Pandits and creation of a general atmosphere of fear and intimidation finally forced the Pandits to leave the valley. Based on select narratives exploring the themes of identity, belonging and exile of the Kashmiri Pandits, this paper proposes to examine the politics of these narratives in the context of the Hindu fundamentalist discourses among the Kashmiri Pandits.

Ankur Datta

This article addresses two questions: first, how do communities facing protracted displacement deal with the experience of migration and place-making? Second, how do notions of home mediate this relationship? I approach these questions by taking the case of Kashmiri Pandits, the upper caste Hindu minority of the Kashmir valley, who were displaced due to the outbreak of conflict in Jammu and Kashmir in 1989–90 and a significant section of whom were located in displaced persons’ camps during 1990–2011. The article draws upon discussions with Pandits who contrast nostalgia for life in Kashmir with experiences of re-establishing social and political relationships after displacement. Place and migration here are both treated as contexts and products of social activity that involve considerations of objects, physical environment and communal relationships. The article will argue that discussions of place and home are marked by a tension between desires for reclaiming home and security, and the condition of uncertainty faced by groups like Kashmiri Pandits in the present

When we talk about contemporary indigeneity and religion in India, we are talking of around 100,000,000 people. This number is still a modest estimate for the more than 600 distinct groups in India, each with its own traditions, history, circumstances, and in some cases languages, that are encompassed by the word "indigenous". As a small sample, we present local studies of groups of people stretching from Gujarat in the west (see Alles in this volume) through Chhattisgarh, Jharkhand and Odisha in central-eastern India (see the contributions of Beggiora, Guzy, Nadal and Skoda) to Arunachal Pradesh (see Scheid and Barkataki-Ruscheweyh) and Meghalaya (see Lyngdoh) in the northeast. They are the result of a collaboration between the editors that began in 2011 at the conference of the South and Southeast Asian Association for the Study of Religion and Culture in Thimphu, Bhutan and continues through the Adivasi Religion and Society Network (www.arsnetwork.org).

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