The juridical apparatus of the Indian state is built to criminalise Kashmiri resistance and normalise their oppression.
One of the oft-repeated assertions that one comes across concerning Kashmir is that it is marked by a condition of “lawlessness”.
However, such an argument presupposes the possibility of a stable and steady rule of law, against which the “lawlessness” stands as a kind of anomaly.
Such an argument fails to consider how the application of law, its reformulation, its suspension, are all malleable instruments in the Indian colonial epistemic and political arsenal.
The fact that Kashmiris are subjected to Indian laws, regardless of the complexion of the law, is in and of itself a problem.
The point is not that the Indian state misuses its power in Kashmir, but that the Indian state must not wield any power at all, regardless of how this power is made use of.
The people of Kashmir do not resist India’s rule in Kashmir because it does not give them their rights – they resist because the Indian state does not have the position or the power to confer on them any right, or deprive them of it.
It is this power and subjection that they challenge. It is this power that sustains colonialism and characterises it.
Take, for example, the law called Unlawful Activities (Prevention) Act. This law has been regularly deployed against Kashmiris and many have been imprisoned under it.
One of the clauses of this law penalises any act or speech that “creates disaffection against India”.
Can a colonised population feel, or express, anything besides disaffection for the colonising nation?
The same clause in the law marks as terrorism any speech or action that “disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India”.
The Indian state has perennially maintained that Kashmir is an integral part of India; therefore, one can argue that for the Indian state, the colonisation of Kashmir is constitutive of its very sovereignty.
As a result, under this law, resistance against colonisation inevitably becomes an act of terrorism.
So, the function of Indian law in Kashmir is not, and cannot be, the dispensation of justice, or the provision of rights.
Rather, the entire juridical apparatus stands to criminalise resistance to Indian colonisation, decriminalise or conceal the violence of the Indian state against the Kashmiri population, and help the Indian state in projecting an image of its rule in Kashmir as one marked by commitment to principles of justice.
Or take the example of Armed Forces (Special Powers) Act (AFSPA).
The AFSPA provides the Indian troops with powers to “shoot to kill, conduct warrantless searches, and detain people arbitrarily”, all of which they have regularly done.
India’s colonisation of Kashmir is not typified by militarisation and forced cultural assimilation alone.
It is, first and foremost, characterised by the power the colonial-state wields to kill subject populations at will, without being subject to any rule other than the will itself.
Normalising occupation After the Indian government abolished the so-called “autonomy” of the state of Jammu and Kashmir in August 2019, many people have misconstrued the political struggle of Kashmiris as one for the reinstatement of this autonomy.
Such an assumption fails to explain the civil and armed uprising against Indian rule that existed prior to the abrogation of Article 370 and 35 A.
I would like to demonstrate the nature of this autonomy through an event that took place in Palestine.
As Neve Gordon narrates in Israel’s Occupation, on June 8, 1967, a few hours after the Israeli military captured Jerusalem’s Temple Mount, Defense Minister Moshe Dayan visited the site.
He noticed that the troops had hung an Israeli flag on the cap of the Al Aqsa mosque and he immediately asked one of the soldiers to bring it down, adding that displaying the Israeli national symbol for all to see was an unnecessarily provocative act.
Moshe, a committed Zionist, did not tell his soldiers to remove the flag out of respect for the Palestinians, but simply because power is most effective when it is invisible, when its presence is concealed.
Article 370, in a similar vein, was not a concession but a shackle. It was aimed at giving Kashmiris a false illusion of being free, at enslaving Kashmiris without them being conscious of their own enslavement.
Between 1967-1980, the Israeli colonial authorities distributed fertilisers and pesticides among Palestinian farmers for their agricultural crops, and also distributed vaccines against diseases that could compromise livestock of Palestinians.
But as Gordon argues, these practices were not informed by generosity, but by a desire to normalise the occupation, and these practices were always balanced against other practices that undermined Palestinian attempts to create a self-sufficient and independent economy.
It illustrates the point I made at the beginning. The Indian state permitted the application of Article 370 in 1949, to normalise what was otherwise a colonial occupation.
It allowed it because it was advantageous for the project of consolidating occupation. In 2019 it was abrogated completely because it had lost its usefulness for the Indian state.
Now, it has introduced a new set of domicile laws which allow Indian citizens to permanently reside and buy land in Kashmir if they have worked in the region for fifteen years or studied there for seven years.
So, the only consideration that dictates what the Indian state does in Kashmir is the question of what is necessary for the sustenance and continuity of occupation? Sometimes, it is the application of the law, and sometimes, its suspension.
Sometimes, it is the carrot that is effective, and sometimes, the stick. And sometimes multiple forms of power are deployed simultaneously.
Living under colonialism, one learns that the lawmaking in the assembly, the courts of the occupation and the gun of an army man work in tandem, constantly overlapping and reinforcing the other.
No reconciliation or peaceful coexistence is possible between the coloniser and the colonised, between the Indian state and the Kashmiris.
The two do not share a conception of humanity, peace, or justice. The interest of the Indian state lies in subjugating the Kashmiris, the interest of the Kashmiris lies in resisting this subjugation.
While the Indian state promises peace and development in Kashmir, one must remember that the coloniser and the colonised do not share a conceptualisation of peace.
For the Indian state, peace is a condition where the occupied Kashmiris accept the occupation as an unchangeable reality, as a fact of life that one must grow accustomed to.
For occupied Kashmiris, life and peace can only materialise from the death of colonialism.
[The author is son of illegally detained Dukhtran-e-Millat Chairperson Aasiya Andrabi and Hurriyat leader Dr Muhammad Qasim Fakhtoo.]