By Aditi Saraf
This piece is part of APLA’s newest Speaking Justice to Power Series, which focuses on Kashmir and marks the one-year anniversary of the abrogation of Articles 370 and 35A of the constitution (August 5, 2019). The Series page is available here.
The removal of Article 370 also stripped away Article 35A, that recognized the permanent residents (“state subjects”) of Jammu & Kashmir as having exclusive rights to buy and sell immovable property. Interpreted by many as inaugurating an overt settler-colonial project, eliminating Article 35A also profoundly violates the relationship of people to their lands. Maintaining land as inalienable wealth— more particularly, preventing outsiders from establishing a land market in Kashmir —is a principle with historical depth in the region and deeply woven in with ideas of ecological stewardship.
Annette Wiener (1985) has defined the accrual of inalienable wealth as “the ability to keep an object against all the exigencies that might force a person or a group to release it to others”. These objects embody an intimate link between the possessors’ past and present identity, constituting more than simply an economic resource. In Kashmir, land has historically been a tertiary site for wealth production, but a primary site for shoring up ideas of sovereignty.
During my fieldwork in Kashmir, conversations around the inviolable nature of land rights highlighted the need for ecological protection of the fragile highland landscape in addition to preventing external ingress. While drawing keenly on the environmental costs of military occupation, land protection is also anchored in history. This became clear during an exchange I had one autumn afternoon in 2013, in which the term hifazat was used to describe this ethos.
Javaid, a Kashmiri journalist had listed out places named after Dogra rulers – maharajas – that had remained unchanged: “Hari Singh Hospital, Ranber-market, Karan-colony, Amar Singh College.” The Dogra dynasty ruled the princely state of Jammu & Kashmir in a subsidiary alliance with the British Raj from 1846 to 1947. In the Muslim-majority Kashmir Valley, the Dogras are remembered as autocratic Hindu rulers dominating a subject Muslim population (Rai 2004). The current movement for self-determination often traces its origins to the anti-monarchical struggles of the early twentieth century.
Javaid’s friend Riyaz, a trader, chimed in. “The Dogras were tyrants, no doubt. My grandmother told me you could be killed for cutting down a mulberry tree. But they protected the land from foreigners and protected the environment from degradation. They treated land with hifazat, they took care of it. Look at the state of things today – deforestation, pollution, the lake is dead. Only for that hifazat, people have let Dogra names stay.”
Hifazat means “to protect or guard.” In Urdu, its root — hifz—is rendered in the Muslim greeting Khuda Hafiz (“May God protect you”); Eid prayers for mulk ki hifazat (protection of the realm); tahaffuz, resembling the English term “under the auspices”; and muhafiz, or police. Adjacency to words like hafiz, a person who memorizes the Quran and becomes its protector and transmitter, combines ideas of memory with security.
Javaid and Riyaz also discussed how markets named after Sheikh Abdullah, an anti-monarchical activist and former prime minister of the state, had been renamed. After the end of Dogra rule, Abdullah instituted land reforms that were some of the most progressive in the Indian subcontinent. Yet, monikers of their architect had been effaced from several public places, they told me, for “selling out” Kashmiri lands to outsiders. While the revocation of 35A has refocused attention to the importance of land reforms, at that time they were referring to Abdullah presiding over the passage of a legislative act that allowed industrialists from outside Jammu & Kashmir to lease land in the state for 99 years.
Archival records indicate that maintaining the status of land as inalienable wealth became a cornerstone of princely sovereignty after the highland kingdom passed into Dogra hands from the East India Company. The Kashmir durbar, or ruling house, was exceptionally vigilant in ensuring non-alienability of its territory. A particular class of outsiders posed the biggest threat to the Maharaja’s lands – British officers and agents attracted to the Valley’s climate and surroundings. The durbar resented the presence of persons over whom it had no jurisdiction, and enacted measures preventing Europeans from acquiring any permanent rights in Kashmir with regard to immovable property.
European visitors were only allowed temporary residence on allotted plots. Some traders stayed longer without paying rent, as “guests” on royal property that they were not even allowed to repair themselves. Furthermore, a royal “rule book for visitors” issued diktats forbidding, among other things, killing cattle, hunting in the royal forest, exporting or importing anything from the Valley and urinating outside demarcated toilets. Their resemblance to modern codes of conduct in a national park is striking.
European British subjects repeatedly challenged prohibitions on acquiring immovable property in Kashmir. Predictably, one argument put forth was racial superiority: the position of the Englishman in Kashmir was seen as “one of right not of sufferance.” Mainly, they argued that the right to property was a necessary concomitant of “free and legitimate trade”. On the other hand, the maharaja defended his position by insisting on the incompatibility between mercantile principles of free trade and sovereign law. Foreigners could not be expected to enjoy the privileges of his subjects, the maharaja argued, while escaping the jurisdiction of his civil and criminal courts. Additionally, the durbar made a strange appeal to the inalienability of the gift, declaring that the maharaja’s dominions were a “dear and precious gift from Her Majesty’s Government, and His Highness cannot for a moment entertain the idea of selling an inch of it.”
Despite repeated appeals, no action was taken by the British Raj to coerce the durbar into granting Europeans ownership rights in land. Instead, cases around acquiring land for European churches, cemeteries or businesses were negotiated on an individual basis. In this matter, the key decision made by the viceroy, John Morley, in 1908 is telling. Morley upheld the maharaja’s objection to the settlement of subjects in his territories over whom he had no jurisdiction. Besides, Morley considered private landowners in Kashmir to be “notoriously improvident” and argued that Kashmir’s climate, landscape as well as a series of proposed public-work schemes, would fuel both increased speculation and a rush of European settlers.
Intriguingly, Morley insisted that it was important to prevent what he called “an Uitlander question” in Kashmir. Uitlander, the Afrikaans word for “foreigner,” was the name given to British migrants in South Africa during the Witwatersrand gold rush of 1886. Their influx into the Dutch-dominated Transvaal became one of the reasons for the outbreak of the Second Boer War between 1899 and 1902. Cognizant of struggles in the transnational imperial landscape, Morley concluded that, “the Maharaja naturally desired to be the master of his own house.”
The durbar’s power over its subjects was also vested in usufruct and proprietary rights in land. Land settlement in Kashmir commenced in the late nineteenth century and conferred usufruct rights to the princely state’s subjects even as ownership remained vested in the monarch. Cabeiri Robinson (2013) shows how the settlement act put in place a distinction between Kashmir mulki—people who had usufruct claims on land and the right to state patronage—and those who did not—gair mulki, or people not of the land. The 1920s witnessed a series of struggles by peripatetic and excluded populations to acquire the status of “hereditary state subjects,” entitling them to permanent rights in land and recruitment in government jobs. On this basis, the law defining “state subjects” was enacted by the Dogra ruler and eventually extended into Article 35A of the Indian Constitution in 1954.
Robinson argues that the legal category of the “state subject” was also used by Dogras to exert control over the monarch’s subjects in other territories, and expel foreigners and seditious ideas from the princely state. Now, the state-subject status has become a battleground for securing Kashmir against attempts to open up its lands for sale to outsiders and change the demography of the Muslim-majority Valley. A former mechanism of control is being conveyed as territorial sovereignty in the present struggle. Far from being expressed as nostalgia for a bygone era, hifazat, as it was invoked to me in 2013, is a political trace that combines resistance to aggressive religious colonization with the protection of land and its make-up.
Through anti-monarchical resistance and the movement for land rights, mastery of the house was wrested from the monarch and passed to the popular will. As an ethos of territorial sovereignty, hifazat also draws on perceptions of the indigenous economy as primarily agrarian, framing land as a site for sustaining life and self-reliance rather than as a commodity for capital investment. As a political vernacular that makes tangible care of the land, hifazat thus underwrites struggles for securing indigenous land rights and protecting the highland environment in the movement for self-determination.
I thank Mohammad Sayeed and Abir Bazaz for helping illuminate various connotations of hifazat. A longer version first appeared in the October 2019 edition of the Caravan Magazine, India.
Rai, Mridu 2004 Hindu Rulers, Muslim Subjects: Islam, Rights, and the History of Kashmir. New Jersey: Princeton University Press.
Robinson, Cabeiri DeBurgh. 2013 Robinson, C. 2013: Body of the Victim Body of the Warrior: Refugee Families and the Making of Kashmiri Jihadists. California: University of California Press
Weiner, Annette B. 1985. “Inalienable Wealth” American Ethnologist 12, no. 2: 210-227
 Javaid and Riyaz are pseudonyms.
Aditi Saraf is an Assistant Professor of Sociology and Anthropology at Ashoka University. Combining ethnographic and archival work, her research focuses on the relationship between commerce and sovereignty in the Kashmir region. More broadly, she works on questions of political economy, frontiers and mobility, militarization, material exchange, and place-making practices.