Settler colonialism is a specific mode of colonial domination. Unlike other forms of colonialism predicated on its reproduction, settler colonialism is designed to extinguish the unequal relations separating colonised and coloniser rather than reproduce them. A number of publications, scholarly ones and interventions dedicated to a wider pubic, shorter ones and more extended essays, have appeared since 2019 arguing that a settler colonial lens may be productively applied when interpreting recent developments in Kashmir.¹ This essay focuses specifically on the ways in which Kashmir and India’s federal polity have articulated their sovereignties in the past, and how this relationship was recently unilaterally amended in ways that could be enabling a settler colonial moment.

In 2019, after decades of relative stasis, the constitutional relationship between India and Kashmir shifted, even if this transformation should be considered in the context of a continuously oppressive association, as Mushtaq and Amin have argued in a very recent and convincing Third World Quarterly article.² This reorganization must be interpreted, and it must be made legible. A developing settler colonial relation was evoked, but this framework may be pushed further.

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Two concepts pertaining to interpolity relationships that derive from classical antiquity may be used to interpret the 2019 shift, not because the storehouse of ideas that descends from European classical antiquity holds anything inherently enlightening about the ways in which polities engage with each other, but because the terminology that it offers is especially suited for an analysis of diverse colonial and settler colonial relations. Both the ancient Greeks and the Romans practiced both colonialism and settler colonialism as distinct modes of domination, and both developed specific ways to refer to a remarkable variety in the relationships linking colony and metropole. By comparison, the modern usages of terms like ‘colonialism’, ‘postcolonialism’, and ‘imperialism’ remain oddly unspecific.³

The classical world envisaged a variety of possible relationships between separate and yet subordinate political entities, including, for example, isopolitical arrangements (when, by mutual treaties or unilateral decrees, citizens of one polity acquire rights in other polities – these arrangements could be univocal or biunivocal), simpolitical arrangements (when a common federal or suprastate citizenship is instituted beside the local one), and the establishment of symmachias (when a warring league is established, with a polity automatically engaging in war as an ally of another). Our focus on Westphalian sovereign prerogatives undermines greatly our ability to make sense of enduringly unequal intrapolity relations in the present.

Kashmir is now and has been for decades the most militarised country on this planet, but until 2019, when Articles 370 and 35 A of the Indian constitution were unilaterally suspended, India and Kashmir remained distinct polities, even though the latter was obviously and forcibly subordinated to the former. After Articles 370 and 35 A were suspended, the federal entity and the subordinate state formally became an isopolity (or isopoliteia). This shift brings about a momentous transformation. India overtook Kashmir during Partition and its aftermath, but while it exercised forcibly a control of all external relations, it did not enact an undifferentiated citizenship – the two constitutional provisions mentioned above ensured that the polities remained distinct. They shared institutions, but no isopolity was established – no common citizenship was enforced. Specifically, Indian citizens did not acquire the ability to exercise in Kashmir what the Roman constitutions defined as commercium and connubium – terms the Latins used to indicate inherent rights to residency and to hold property. After Articles 370 and 35 A constitutional obstacles to their acquiring commercium and connubium rights in the subordinate polity were formally removed. Kashmir and the Indian federal entity should be seen now as a single isopoliteia.

An appraisal of isopolitical interstate associations is especially relevant to settler colonial phenomena (and thus is relevant to understanding the current situation in Kashmir). Specifically, an isopolitical connection enables the seamless transfer of populations and their rights between separate polities – the metropole and the settler colony.⁴ In the settler colonial polities, individuals and collectives move and immediately acquire rights to hold property, and especially real estate, and to transfer to their children political rights that are normally preserved for natives.

If I move and meet a custom officer, if I am legally unable to purchase a dwelling or agricultural land along with the bundle of rights that emanate from this proprietary right, and if I am barred from participation in local electoral processes, for example, by being denied access to the electoral roll, there are no isopolitical arrangements linking the polity I departed and the location I am arriving to. I am a migrant, or a refugee. But if I move and immediately acquire rights, then isopolitical arrangements are enforceable. In this context, subjects of one polity acquire property rights and enjoy unrestricted political status as they move across jurisdictions. One modern example of this relationship is the isopolity that unites the global Jewish Diaspora and the State of Israel as it is articulated by the Israeli Law of Return (citizens of each of the European Union state members also enjoy limited rights to commercium and connubium in other states). During the nineteenth century, immigrants to the US from northern European countries would immediately acquire the right to vote in local elections and to acquire homesteads on land that was being forcibly appropriated from their Indigenous owners. It is mind boggling today to think about this liberality.⁵ They were settler co-ethnics. Only in the early twentieth century and in a process that took decades to unfold did the rights of all immigrants to the US become progressively restricted.

If settlers can be defined as founders of political orders, unlike migrants, who are appellants facing a political order that is already constituted; if settlers are individuals who travel with an inherent capacity to possess real estate and father children endowed with political rights, the union of colonising metropole and settler locale can be defined as an isopolitical relation. Settlers are indeed subjects who, unlike migrants, or other colonised people on the move, can immediately exercise commercium and connubium, both necessary elements of meaningful citizenship and belonging. Of course, not all settlers depart and arrive autonomously to the locale that is being settler colonised, nor are all immediately endowed with political rights; they can, however, selectively be co-opted at a later stage. They are potential settler colonists.

The sovereign ability to bestow the right to permanently reside and own land – again, connubium and commercium – has become a site for contestation in Kashmir after 2019. There was previously distinction within subordination – extreme violence, and a protracted regime of occupation did not undo this distinction, indeed it was  reinforced.  India’s control of defence, external affairs, and communications made Kashmiris a domestic dependent nation within the Indian federal state, but Articles 370 and 35 A ensured a limited sovereignty within a wider sovereignty. The property rights of recognised permanent residents were constitutionally protected, and there were other protections in education and in the administration of the state (some fiscal benefits were also granted).

The coming isopolitical arrangements sound democratic, but they are not – the Indigenous peoples of the world are rightly suspicious of the rule of settler colonial majorities and rightly seek constitutionally enforceable protections (in 2007 the UN also issued a Declaration on the Rights of Indigenous Peoples). There is more: new constitutional arrangements affecting Kashmir are also a major departure in the context of established colonial traditions of indirect rule, traditions that the Indian postcolonial state had inherited and retained.⁶ Indirect rule governance in India is more ancient than Partition, even if the arrangement survived it; but rule by settler majorities is a different tradition of colonial governance.

Indian citizens can now acquire the right to work, own land and participate in local elections in the contested territory of Kashmir – demography itself is now an explict battlefield, even if it always was an implicit one (see, for example, the exodus of Hindu Kashmiris from contested areas in the 1980s and 1990s). Now it has become so in a different way, because we are witnessing a developing project of elimination.⁷ The possibility of ethnic cleansing was always on the political horizon of Kashmir (see the 1947 Jammu massacre of Muslim residents: the massacre produced an exodus, and while the refugees were not allowed to return, their property was confiscated). Today elimination pertains to the manufacture of transformed demographies.

Newly introduced residency laws allow those who have resided for 15 years or studied in the state for seven to qualify for ‘domicile’ (and thus qualify for reserved jobs). The children of army officers, militants of paramilitary organisations, and government officials are also able to obtain reserved jobs.⁸ Settlers can now ‘indigenise’ – the distinctive mark of all settler colonial regimes – especially if they hold ‘domicile’ documents. The newly introduced legal category of ‘domicile’ is especially typical of a settler colonial regime, as it renders permanent residency certificates irrelevant or obsolete. ‘Domicile’ is designed to undermine the claims to indigeneity that Kashmiris have traditionally and jealously defended.

There is indeed a developing struggle over indigeneity in Kashmir, and contestations are likely to become more and more heated: no settler colonial regime can afford to permanently abandon indigeneity to the indigenous collective. The settler collective aims to turn itself into a ‘native’ polity. Recent developments under the BJP Indian federal administration include the promotion of Hindu pilgrimages to Kashmir, and an emphasis on the presence in Kashmir of ancient Hindu temples. ‘Muslims’ in the region are routinely represented as an exogenous collective that ‘conquered’ the land in historical times – that is, Muslims are presented as a collective that cannot rightfully claim an authentic form of indigeneity. Indigeneity itself has become a battlefield, and it is significant that the sovereignty of a settler collective is routinely represented as a return: a return to authentic roots, a return to the land, and a return to fallen greatness. All these tropes are routinely mobilised to justify the Indian-led transformation of Kashmir.⁹