Narrative Injustice and the Legal Erasure of Indigeneity: A TWAIL Reframing of the Kashmiri Pandit Case in Postcolonial International Law

Abstract

This article examines the persistent legal invisibility of the Kashmiri Pandits within international frameworks on indigenous rights and internal displacement. Despite meeting definitional criteria under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Guiding Principles on Internal Displacement, the community remains unrecognised as either indigenous or internally displaced. Drawing on Third World Approaches to International Law (TWAIL), constructivist norm diffusion and decolonial intersectional critique, this article argues that this exclusion arises not from normative ambiguity but from geopolitical selectivity and epistemic suppression. Through doctrinal analysis of India’s treaty commitments, including its accession to the Genocide Convention (1959) and its interpretative reservation to Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) (1979), this study reveals how recognition is constrained by state narratives of sovereignty and secularism. Supported by evidence from the NHRC inquiry, IDMC displacement data, and comparative experiences such as Native American recognition this paper demonstrates that categories of protection in international law are applied unevenly, depending on political compatibility rather than legal principle. It calls for renewed engagement with epistemic justice and narrative accountability in rethinking indigeneity and displacement in postcolonial contexts.

1. Introduction

The question of who counts as indigenous and whose displacement warrants recognition under international law remains deeply contested. While instruments such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), ILO Convention No. 169, and the Guiding Principles on Internal Displacement provide substantive protections, their implementation often reflects geopolitical selectivity rather than legal coherence. This paper interrogates selectivity through the case of the Kashmiri Pandits, a historically rooted, culturally distinct community forcibly displaced during the insurgency in the Kashmir Valley in the late 1980s. Despite meeting core definitional elements of indigeneity and internal displacement, the Kashmiri Pandits remain unrecognised within dominant international legal and human rights frameworks.

This exclusion is not the result of normative ambiguity but rather a consequence of entrenched narrative hierarchies and the epistemic suppression of inconvenient victimhoods. Drawing on TWAIL, constructivist theories of norm diffusion, and critical legal realism, this paper reframes the Kashmiri Pandits’ experience as a paradigmatic example of legal invisibility driven by ideological discomfort. TWAIL, in particular, allows us to situate the Pandits’ exclusion within broader postcolonial politics of recognition, where the Global South reproduces internal exclusions under the guise of anti-imperialist solidarity. Constructivism and critical legal realism further expose how categories like “indigenous” or “displaced” are not neutrally applied but selectively activated according to dominant geopolitical scripts.

Despite the progressive expansion of international legal frameworks on the rights of indigenous peoples and internally displaced populations, the case of the Kashmiri Pandits remains absent from global legal discourse. As a historically rooted community with clear cultural continuity in the Kashmir Valley, the Pandits satisfy the core normative criteria of indigeneity as laid out in international instruments such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and “the Martínez Cobo study” (Martínez Cobo 1986–1987), which will be discussed later in this chapter.

The forced displacement of Kashmiri Pandits in the early 1990s, following a longer pattern of targeted violence against the community since the 13th century, exhibits the defining features of ethnic cleansing. As Warikoo (2023) documents, the eruption of armed militancy in late 1989 unleashed a campaign of selective assassinations, threats, and intimidation that compelled nearly 450,000 Kashmiri Pandits to flee the Valley, resulting in the loss of land, homes, cultural institutions, and community life. Warikoo characterises this displacement as a “classic case of ethnic cleansing and xenophobia,” marked by organised oppression, dispossession of property and territory, and deep marginalisation rooted in the community’s distinct ethno-religious identity. These conditions align with the situations contemplated in the Guiding Principles on Internal Displacement. Yet, despite the scale and nature of their uprooting, Kashmiri Pandits continue to be denied recognition as internally displaced persons or as an indigenous community, both within India’s domestic frameworks and in international forums. I argue that this exclusion cannot be attributed solely to legal definitional uncertainty. Rather, it is rooted in what this paper identifies as narrative and epistemic suppression, a dynamic wherein claims that do not align with dominant postcolonial or geopolitical narratives are rendered legally invisible. The legal system, as Koskenniemi (2005) powerfully demonstratesdemonstrates, do not operate in a neutral or objective vacuum. Instead, it filters which claims are heard and which are silenced, often based on political convenience, ideological coherence, or the maintenance of hegemonic state narratives (Koskenniemi 2005).

Through the combined lens of TWAIL, constructivist legal theory, and critical legal realism, this paper interrogates how international legal categories such as “indigenous,” “minority,” or “internally displaced” are selectively deployed. In India, these categories are applied to certain groups, often those that fit within a state-versus-minority paradigm, but withheld from others like the Kashmiri Pandits, whose suffering complicates the dominant binary of Hindu-majority state versus Muslim-minority victimhood. TWAIL provides a framework to examine not only global legal hierarchies, but also how postcolonial states internalise colonial logic, including which populations are allowed to claim victimhood and which are not.

In doing so, this paper reframes the Kashmiri Pandit case not as an isolated instance of domestic failure, but as a reflection of broader international legal blind spots. It argues that justice in Kashmir must begin with the recognition of the silenced, and that international legal norms on indigeneity and displacement must be decolonised and recalibrated to account for communities erased by both national and international political priorities. This article is situated within a decolonial and intersectional legal framework but seeks to critically interrogate the selective application of these paradigms. As a scholar located within the European academic space, I am aware that invoking the displacement and marginalisation of a Hindu community such as the Kashmiri Pandits may unsettle dominant scholarly narratives and political sensibilities. However, a truly decolonial and intersectional commitment must be consistent in its ethical scope, even when it challenges prevailing scripts of victimhood, resistance, or indigeneity. This paper does not seek to appropriate these critical frameworks but to extend their promise, by drawing attention to an epistemically marginalised community whose experiences remain under-recognised in international legal and scholarly discourse. The intervention offered here is not a departure from decolonial critique, but a call to deepen its universality and accountability.

Within this context, the paper proceeds in seven sections. Section 2 lays out the conceptual and legal frameworks surrounding indigeneity and displacement, tracing their evolution in international law. Section 3 analyses the cultural continuity and forced displacement of the Kashmiri Pandits to establish their eligibility under existing legal norms. This analysis integrates three interrelated frameworks—indigenous-rights law, internal-displacement protection, and postcolonial theories of recognition—to examine how the Kashmiri Pandits’ exclusion is legally produced. Section 4 offers a critical theoretical framing that diagnoses the mechanisms of narrative and legal erasure. Section 5 draws on comparative examples, such as Native American legal struggles and Latin American jurisprudence, to highlight when and why indigenous recognition occurs. Section 6 proposes a recalibration of international legal responses to the Kashmir context that moves beyond the dominant binary of state versus separatist and calls for legal redress rooted in principles of equality, justice, and recognition. The final section concludes by calling for a rethinking of both global legal norms and local silences in order to advance a more inclusive and principled understanding of indigenous justice. This article adopts a qualitative doctrinal approach grounded in international and comparative law. It analyses primary legal instruments—including treaties, government statements, and institutional reports—alongside peer-reviewed scholarship published between 1990 and 2024. Sources were selected for their relevance to the legal status and recognition of displaced and indigenous communities. The concept of “epistemic erasure” is evaluated through close textual analysis of omissions, terminological shifts, and framing strategies within official and institutional documents rather than through presumptions of intent. This approach aligns with critical legal realism by situating doctrine within its social and political context while maintaining normative precision.

2. Framing Justice Beyond Legal Visibility—The Politics of Displacement and the Silence of Law

The politics of indigenous rights and internal displacement are shaped not only by legal norms but by the selective application of those norms, often in response to domestic political narratives and international representational hierarchies. Instruments like the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Guiding Principles on Internal Displacement have formalised protections for communities that experience historic marginalisation, cultural rootedness, and forced removal from their ancestral lands. However, these global commitments are not always extended to groups that do not fit within dominant scripts of victimhood. A striking example of this disjuncture is found in the case of the Pandits, particularly the Pandit community, who, despite meeting multiple normative criteria, remain excluded from global frameworks of protection.

The Kashmiri Pandits self-identify as a distinct ethno-religious community with an unbroken cultural presence in the Kashmir Valley spanning over five millennia. Their religious and philosophical identity is rooted in Kashmir Shaivism, a pluralistic and spiritually inclusive tradition that promotes “the universality of man, peace and amity amongst peoples” (Panun Kashmir 2009, p. 1). Yet their historical continuity has not shielded them from repeated waves of marginalisation, including targeted violence, forced conversions, and exile, beginning as early as the 14th century and accelerating into the late 20th century.

The escalation of insurgency in 1989–1990 marked the community’s most profound rupture. As documented in community reports, “more than three hundred thousand Kashmiri Pandits (Hindus) [were] hounded out… from the valley from 1989 onwards” (Uttpal Publications 1995, p. 1). This mass exodus was not incidental, but rather the result of an orchestrated campaign of terror that included threatening posters, newspaper editorials, mosque announcements, and a climate of everyday fear. “Mosques were used as warning centres… threatening the Hindus and conveying to them what terrorists and many Muslims of Kashmir wanted to achieve” (Evans 2002, p. 21). Some Pandits were individually targeted, tortured, and killed, “many of the victims after being butchered were thrown into streets as exhibits for everybody to get terrorised” (Uttpal Publications 1995, p. 2). Others left without receiving explicit threats but felt overwhelmed by the collective atmosphere of intimidation and impunity: “most of these migrants felt very much threatened in an atmosphere of unabated violence” (Evans 2002, p. 22).

This forced migration was accompanied by severe material and psychological dislocation. Families that fled often did so with no advance planning or resources, believing the situation would stabilise in weeks. Instead, many were “reduced to living in ramshackle camps or in one-room tenements and stables vacated by cows and buffaloes” and were “subject to the vagaries of a harsh climate, a hostile populace and an indifferent and callous administration” (Uttpal Publications 1995, p. 5). Years later, the exile has calcified into a durable condition of invisibility. Properties have been seized, religious sites desecrated, and cultural knowledge fragmented, “their children are unlikely to learn Kashmiri,” Evans notes, capturing the creeping erosion of communal identity (Evans 2002, p. 33).

Despite this documented history of persecution, Kashmiri Pandits have never been formally recognised by international institutions as internally displaced persons (IDPs) or indigenous peoples. A narrow reading of refugee law contributes to this exclusion: “countries around the world recognise refugees only when they are forced to flee into another country” (Uttpal Publications 1995, p. 6). But the deeper cause lies in the politics of visibility. As Evans observes, “the Pandits are frequently overlooked or reduced to a couple of footnotes” (Evans 2002, p. 19). Thus, it is relevant to see discuss whether this is due to lack of evidence, or because their experience disrupts the binary frameworks through which victimhood is typically legible: state versus minority, majority versus separatist, Muslim versus Hindu.

This paper begins by laying out the historical, sociopolitical, and humanitarian foundations of the Kashmiri Pandit experience not to prematurely draw legal conclusions, but to foreground a more fundamental question: what happens when a displaced community meets the legal criteria for recognition, but not the political or narrative expectations that facilitate such recognition? Through an analysis grounded in TWAIL, constructivist legal theory, and critical legal realism, the paper interrogates how global norms on indigeneity and displacement are filtered through geopolitical interests, domestic silences, and selective solidarity. The Kashmiri Pandit case thus becomes a lens to examine the limits of rights discourse in postcolonial international law, and to ask what justice means when law does not see.

The central argument of this paper is that the exclusion of Kashmiri Pandits from international legal frameworks on indigeneity and displacement does not stem from definitional ambiguity or gaps in legal doctrine. Rather, it is rooted in epistemic suppression and narrative exclusion that are intrinsic to the postcolonial legal and political order. Despite meeting the normative criteria outlined in instruments such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the Guiding Principles on Internal Displacement, and the Martínez Cobo Study, the Pandits remain unrecognised, not because they fail to qualify, but because their recognition would disrupt dominant postcolonial narratives about Kashmir, India, and religious identity. This selective visibility reflects what decolonial scholars such as De Sousa Santos (2007) and Mignolo (2011) describe as the coloniality of knowledge: the global legal and humanitarian system continues to operate through frameworks that determine which identities are legible, which suffering is speakable, and which communities are allowed to exist within the space of international law. Within this epistemic regime, recognition becomes less about rights and more about political convenience. The case of the Kashmiri Pandits reveals how postcolonial sovereignty, global human rights discourse, and the remnants of imperial legal structures conspire to erase certain forms of victimhood that do not align with prevailing geopolitical or ideological interests.

This paper draws on TWAIL, Constructivist International Legal Theory, and Critical Legal Realism to interrogate how and why certain communities, such as the Kashmiri Pandits, remain absent from global legal consciousness, despite meeting normative and factual thresholds for recognition under international frameworks on indigeneity and internal displacement. Rather than attributing this exclusion to legal ambiguity, this paper contends that it is the result of deeper, interlocking structures of epistemic suppression, narrative exclusion, and postcolonial statecraft. These theoretical traditions enable us to move beyond doctrinal formalism and examine how international law functions as a terrain of power, where recognition is unevenly distributed and structurally conditioned by global hierarchies of legitimacy, visibility, and identity.

2.1. TWAIL: Postcolonial Sovereignty and Strategic Legal Silencing

TWAIL highlight how international legal regimes, despite claims to universality, continue to reflect colonial hierarchies and reproduce asymmetrical relations of power. TWAIL scholars such as Chimni (2006) and Anghie (2005) argue that postcolonial states often invoke sovereignty not as a shield for subaltern justice, but as a mechanism to suppress inconvenient rights claims, particularly those that expose internal fractures or challenge dominant national narratives.

In the case of the Kashmiri Pandits, TWAIL provides a compelling explanation for the Indian state’s refusal to recognise them as either internally displaced persons (IDPs) or an indigenous community. Despite constitutional commitments to secularism and minority rights, the state has consistently downplayed their displacement to maintain a statist narrative that frames Kashmir solely through the lens of territorial integrity and external aggression. As Chimni notes, this is a familiar postcolonial pattern: sovereignty is used to shield the state from international scrutiny and to marginalise subnational groups whose suffering complicates hegemonic discourses. Recognising the Pandits would not only unravel this official narrative but also expose the state’s complicity in their prolonged neglect and erasure.

2.2. Constructivism: Identity Politics and the Politics of Norm Diffusion

Constructivist theory, particularly as advanced by Finnemore and Sikkink (1998), situates law within broader normative and social structures. It posits that recognition in international law is not solely dependent on objective legal criteria but also on whether a community’s narrative is intelligible within dominant global scripts. Through processes of norm entrepreneurship, actors such as NGOs, media networks, and civil society construct categories of victimhood that resonate with global moral sensibilities.

The Kashmiri Pandits’ displacement challenges these prevailing scripts. Their identity as a Hindu minority within a Hindu-majority state disrupts simplistic binaries of majoritarian oppression and minority suffering. Unlike the Yazidis, Rohingya, or Tibetans, whose persecution neatly fits frames of genocide, statelessness, or authoritarian repression, the Pandits are burdened with narrative ambiguity. Their suffering lacks the symbolic legibility that drives transnational mobilisation. Constructivism thus reveals that their exclusion is not a failure of evidence, but a failure of discursive fit, they are victims who do not conform to the scripts that animate global empathy and action.

2.3. Critical Legal Realism: Epistemic Violence and the Architecture of Erasure

Critical Legal Realism goes further by interrogating the very knowledge systems that underpin international law. Scholars like Kennedy (2004) and Koskenniemi (2005) argue that legal discourse is inherently ideological, operating through categories that determine whose suffering is knowable, whose identity is legible, and whose claims are institutionally admissible. Law is not simply a tool of justice; it is a site of epistemic authority.

The Kashmiri Pandits’ absence from international legal discourse exemplifies what Mutua (2001) terms the “Savages–Victims–Saviors” (SVS) metaphor, where the human rights narrative casts Western actors as rescuers of passive Third World victims from equally Third World oppressors. The Pandits, however, do not conform to this model. Their Hindu identity, and their association, real or perceived, with the Indian state, renders them unintelligible within a humanitarian framework that depends on clear binaries and moral clarity. Their displacement is thus not merely overlooked; it is structurally erased. Critical Legal Realism helps us recognise this erasure not as incidental, but as a constitutive feature of the international legal order.

2.4. Synthesis: Recognition as a Political and Epistemic Act

These three theoretical traditions, TWAIL, Constructivism, and Critical Legal Realism, converge on a central insight, that legal recognition is not merely a technical process, but a deeply political and epistemological one. TWAIL foregrounds the role of postcolonial sovereignty in suppressing inconvenient claims; Constructivism reveals how norm diffusion is shaped by identity politics and symbolic legibility; and Critical Legal Realism exposes how legal meaning is constructed through regimes of knowledge that systematically exclude non-conforming identities.

Taken together, these perspectives reveal that the invisibility of the Kashmiri Pandits is not a legal oversight but a systemic and ideological outcome. Their exclusion reflects the selective application of international norms, the politics of postcolonial legitimacy, and the global discomfort with narratives that defy linear victimhood. To confront this, it is not enough to refine legal definitions of indigeneity or displacement. What is needed is a decolonial legal imagination, one that interrogates the epistemic assumptions underlying recognition and re-centres the voices of those rendered illegible by both state power and international law.

This article brings together three complementary frameworks, TWAIL, constructivism, and critical legal realism—to interrogate the uneven application of global norms. TWAIL highlights the structural hierarchies embedded in international law and their reproduction through postcolonial governance; constructivism explains how these hierarchies are sustained through discourse and norm-formation; and critical legal realism reveals how bureaucratic and institutional practices translate such discourses into selective implementation. Together, these perspectives expose recognition as both a legal and political process, shaped by power, perception, and institutional design. The following sections apply these theoretical insights to the case of the Kashmiri Pandits, illustrating how doctrines of indigeneity and internal displacement are selectively operationalised within India’s legal order.

3. Who Counts as Indigenous? Rethinking Global Legal Norms

3.1. The Evolution of International Indigenous Rights

The United Nations’ engagement with indigenous rights reflects a growing recognition of the structural marginalisation faced by over 370 million indigenous peoples across 90 countries. While notable strides have been made, most significantly the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, indigenous communities continue to experience systemic discrimination, forced displacement, cultural erasure, and political exclusion. As the State of the World’s Indigenous Peoples notes, indigenous populations are disproportionately affected by poverty, environmental displacement, language extinction, and exclusion from political power, all while their ancestral lands and knowledge systems are commodified or appropriated without consent (UNPFII 2009, pp. 1–3).

Despite these alarming realities, many indigenous claims remain unrecognised, not due to definitional ambiguity, but owing to the political reluctance of states to apply indigenous rights norms to groups that challenge dominant narratives or territorial claims. This tension is particularly acute in Asia, where some postcolonial states, including India, assert that all populations are indigenous, thereby flattening distinctions and foreclosing redress for historically marginalised groups such as the Kashmiri Hindus.1 Göcke ([2013] 2017) underscores that such resistance is often driven less by legal ambiguity than by fears over territorial fragmentation and sovereignty. Rather than indicating conceptual gaps, the lack of recognition often reflects what she terms “political selectivity”, a form of state-driven epistemic suppression that strategically ignores or delegitimises inconvenient claims to indigeneity.

The UN’s working definition of indigeneity, originally formulated by José Martínez Cobo, highlights key criteria such as historical continuity, cultural distinctiveness, non-dominance, and a collective determination to preserve traditional lifeways (UNPFII 2009, pp. 4–5). His Study on the Problem of Discrimination against Indigenous Populations, commissioned by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, provides a foundational conceptual framework for understanding indigenous identity. According to the report, indigenous peoples are those who maintain a historical continuity with pre-invasion and pre-colonial societies that developed on their territories and who identify themselves as culturally distinct, with a determination to transmit their identity and ancestral territories to future generations (UNPFII 2009, p. 4). This includes objective indicators such as occupation of ancestral lands, distinct cultural practices, language, and common ancestry with original occupants, alongside crucial subjective indicators, especially self-identification and group recognition. These principles are echoed in Article 33 of UNDRIP and Article 1 (2) of ILO Convention No. 169, which stress that self-identification is a fundamental criterion for indigeneity (UNPFII 2009, pp. 5–6).

However, as Göcke ([2013] 2017) argues, international law does not operate from a fixed checklist for determining indigeneity; instead, it embraces contextual and relational indicators. Among these, the spiritual and cultural connection to ancestral land has emerged as the most defining and widely accepted criterion distinguishing indigenous peoples from other minorities. This understanding is grounded not only in legal frameworks but also in etymology, the term indigena (from Latin indu = within and gignere = to beget) reflects a primordial relationship with the land. As such, claims to indigeneity cannot be confined solely to contemporary demographic or political considerations. In the case of Kashmiri Hindus, their uninterrupted civilisational presence in the Kashmir Valley for thousands of years, their rooted Shaiva and Sanskritic cultural practices, and their continued identification with the Valley even in exile, clearly satisfy this land-based and identity-based framework.

Further, Göcke ([2013] 2017) makes the compelling case that key provisions of UNDRIP, particularly Articles 3 (right to self-determination), 8 (protection from cultural destruction), 26 (land rights), and 28 (right to redress and restitution), have transcended soft-law status and now form part of customary international law. This means that states cannot dismiss these obligations on the grounds of non-ratification. Indeed, these norms are increasingly cited by international courts and human rights bodies as binding duties. For instance, the Human Rights Committee and the Committee on Economic, Social and Cultural Rights have both recognised the right of indigenous peoples to self-determination as a binding legal norm (Göcke [2013] 2017, pp. 26–27).

Yet the case of the Kashmiri Hindus reveals how such normative commitments remain filtered through domestic political economies of recognition. Their exclusion from the framework of indigeneity, despite meeting both the objective and subjective criteria, illustrates how international norms are often selectively internalised by states. The continued invisibility of this community is shaped not by legal incoherence, but by a postcolonial logic of hegemonic secularism, ethno-nationalist prioritisation, and strategic denial. Moreover, the framing of the Kashmir conflict in binary terms, state versus separatist, Hindu versus Muslim, erases more complex narratives and forecloses redress for internally displaced and historically disenfranchised groups.

Comparative experiences, such as those of Native American nations in the United States, Inuit in Canada, and the Ainu in Japan, demonstrate that recognition of indigenous status is often the result of long-term struggle, legal reinterpretation, and political will, not simply the fulfilment of definitional criteria. In each of these cases, as Göcke ([2013] 2017), notes, legal mobilisation, transnational advocacy, and shifts in state accountability have enabled certain groups to reclaim their legal status and assert territorial, cultural, and political rights. The fact that similar avenues remain closed to Kashmiri Hindus points to a double standard in the global application of indigenous rights norms, one that often privileges geopolitical expediency over normative consistency.

A principled engagement with international law would demand not merely token inclusion, but the active extension of reparative justice frameworks to communities such as the Kashmiri Pandits, who have faced cultural destruction and erasure as recognised under Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), together with the loss of homeland and prolonged displacement. As UNDRIP (Art. 3) affirms, indigenous peoples have “the right to self-determination, “which includes the right to “freely determine their political status and freely pursue their economic, social and cultural development.” This right, when applied consistently, cannot be reserved only for politically visible or internationally strategic populations. Instead, it must include those rendered invisible through what Nancy Fraser calls “politics of misrecognition”, where systemic exclusion is reinforced by denial of cultural and legal subjectivity.

As Thakar and Mishra (2020) document through a combination of doctrinal analysis and qualitative data drawn from survivor testimonies, the exodus of Kashmiri Hindus in 1990 involved systematic and widespread violations of core international human rights instruments. These include the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Prevention and Punishment of the Crime of Genocide. The documented atrocities, ranging from targeted killings, enforced disappearances, sexual violence, and destruction of property, to the deliberate erasure of cultural and religious identity, align with the legal elements of both genocide and crimes against humanity as defined under Articles II of the Genocide Convention and Article 7 of the Rome Statute. Importantly, the forcible displacement of an ethno-religious community based on identity also falls within the parameters of the Guiding Principles on Internal Displacement, further reinforcing the applicability of international protection norms.

Yet, despite this legal clarity, Kashmiri Hindus have received neither formal recognition as genocide victims nor the protections typically accorded to internally displaced persons (IDPs). As the authors persuasively argue, this absence of recognition does not stem from an inadequacy of international legal instruments or evidentiary thresholds. Rather, it reflects a deliberate political suppression of applicability, wherein both domestic and international actors have strategically avoided invoking frameworks that would necessitate accountability or restitution. This calculated omission underscores a broader pathology in the international legal system, where the deployment of human rights norms is often contingent not upon legal substance, but upon geopolitical interests and narrative control. In this context, the continued invisibility of Kashmiri Hindus reinforces the critical view that legal recognition is not only a function of normative inclusion, but also of epistemic and political gatekeeping.

Mir’s (2024, pp. 5–8) detailed study of the displacement of the Kashmiri Pandits reinforces the argument that international legal recognition is shaped not only by normative eligibility but by the politics of narrative framing and selective visibility. While the community clearly meets the definitional criteria for internally displaced persons (IDPs) under the 1998 Guiding Principles on Internal Displacement, having fled their homes due to targeted violence and credible threats to life and safety, they remain unrecognised as such by both the Indian state and international humanitarian institutions (Mir 2024, p. 6). This absence of recognition, despite legal applicability, highlights how legal categories like “IDP” are not applied uniformly but are often mediated by geopolitical priorities and discursive exclusions. Mir (2024, pp. 7–9) conceptualises the Pandits’ displacement not as a sudden or isolated event, but as the culmination of a long-standing process of structural marginalisation: encompassing land alienation, political underrepresentation, communal insecurity, and systemic state failure. Such a framing supports a constructivist interpretation of legal invisibility, whereby status and protection under international law emerge not solely from legal facts, but through political negotiation and strategic recognition.

In this regard Mir (2024) engages with competing narratives, ranging from militant violence as the primary driver of exodus, to theories of state complicity and planned relocation, without essentialising any one perspective. This multiplicity underscores the discomfort the Pandits’ experience poses to dominant Global South imaginaries, which often frame justice in binary terms: oppressed minorities versus state oppressors. The Pandits’ story resists this dichotomy, positioning them in a complex space that eludes conventional advocacy frameworks. As a result, their exclusion from the language and protections of international law reflects not oversight but epistemic unease (Mir 2024, p. 13). Mir’s historical account, tracing the community’s disempowerment to post-Dogra land reforms, administrative disenfranchisement, and cultural erosion, resonates with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), especially its emphasis on historical continuity, cultural rootedness, and non-dominance (Mir 2024, pp. 14–15). Though unrecognised formally, such criteria substantiate the Pandits’ claim to indigeneity. Mir’s closing call for rights-based reconciliation and inclusive post-conflict recovery aligns with broader efforts to rethink justice in transitional contexts, where legal redress must be accompanied by a more fundamental interrogation of who is authorised to be recognised as a victim (Mir 2024, p. 17).

Therefore, the failure to apply international indigenous rights norms to Kashmiri Hindus constitutes not just a political oversight, but a violation of global legal principles and a betrayal of the universality that these norms claim to uphold. Reclaiming justice in Kashmir requires moving beyond a reactive politics of recognition and toward a deliberate and inclusive normative application, one that accounts for historical depth, cultural continuity, and the inherent dignity of displaced indigenous communities.

3.2. The Kashmiri Pandits: Between Historical Continuity and Political Invisibility—Forced Exodus and the Failure of Legal Recognition

Recent humanitarian analyses synthesise this historical trajectory with contemporary displacement data. According to Puri and Escobar (2023), the Kashmiri Pandits—an approximately 5000-year-old Brahmin Hindu community and one of the Valley’s original inhabitants—were subjected to escalating militancy and targeted intimidation beginning in 1989. Estimates suggest that around 300,000 people fled the region amid killings, sexual violence, and threats issued by insurgent groups such as the Jammu Kashmir Liberation Front and Hizbul Mujahideen. In 1995, the National Human Rights Commission described the campaign as “akin to genocide”, yet 215 First Information Reports filed by the community remain unresolved. Government data cited by Puri and Escobar record 44,684 registered migrant families—over one million persons—most of whom still live in Jammu or Delhi. Despite limited rehabilitation schemes and monthly stipends, official policy continues to designate them as “migrants” rather than internally displaced persons, thereby avoiding the international obligations associated with IDP recognition. This combination of displacement, partial assistance, and terminological denial encapsulates the legal and humanitarian vacuum in which the community remains situated (Puri and Escobar 2023).

The Kashmiri Pandits represent one of the oldest continuous communities in the Indian subcontinent, with a recorded presence in the Kashmir Valley that predates Islamic rule by centuries. Their deep historical roots are evidenced through a rich tapestry of religious practices, sacred sites, temples, rituals, and linguistic traditions that have persisted, albeit under siege, through multiple political regimes. These cultural markers not only assert the Pandits’ indigenous claims to Kashmir but also reflect a civilisational continuity that challenges contemporary narratives of rupture or replacement.

Despite successive waves of political upheaval, including the advent of Islam and later colonial and postcolonial governance, the Pandits preserved a distinct identity embedded in place, memory, and spiritual practice. Their temples and shrines, their festivals and liturgical recitations, and the continued use of Kashmiri Shaiva philosophical texts serve as enduring repositories of cultural sovereignty.

The mass exodus of the Kashmiri Pandits between 1989 and 1991, triggered by a campaign of targeted killings, threats, and terror orchestrated by Islamist militants, marked a rupture not just in the demographic fabric of Kashmir but also in the legal and moral frameworks that purportedly safeguard minority rights in India. Despite satisfying key criteria for recognition under international law, whether as internally displaced persons (IDPs), victims of ethnoreligious persecution, or as indigenous peoples, the Pandits have remained largely unacknowledged in formal legal discourse.

India’s reluctance to formally classify the Kashmiri Pandits as IDPs has significant legal and political consequences. As Saha (2022) argues, drawing on A.V. Dicey’s foundational conception of the rule of law, anchored in principles of legality, due process, and equal protection, the state’s failure to secure justice and recognition for this community reflects not merely a bureaucratic oversight, but a structural betrayal of constitutional ideals. The impunity of perpetrators, the state’s inaction, and the absence of reparative measures reveal a constitutional order in which legal guarantees become, in Saha’s words, “mere stories” (p. 1143), especially when the rights in question belong to a politically inconvenient minority.

This failure is not limited to the domestic sphere. As Saha further notes, the international legal regime also exhibits a pattern of normative selectivity. Despite meeting the definitional thresholds under international frameworks such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Guiding Principles on Internal Displacement, the Kashmiri Pandits have not been formally recognised as a protected group. This dual silence, national and international, underscores the broader problem of epistemic erasure, where communities whose suffering complicates dominant political narratives are rendered legally invisible.

The Pandits’ experience thus unsettles the dominant binaries that structure global human rights discourse: coloniser versus colonised, state versus subaltern, or settler versus indigenous. As Mir (2024, pp. 10–12) notes, their displacement cannot be neatly assimilated into these frameworks. As a Hindu minority forced out by Islamist violence within a postcolonial, secular nation-state, the Pandits exist in a juridical and political liminality. They are simultaneously victims of majoritarian indifference and yet absent from global solidarity movements that otherwise champion the rights of displaced or persecuted minorities.

This disjuncture points to a deeper problem: that recognition in both domestic and international law is not merely about the presence of harm or legal entitlement, but about narrative compatibility. The Pandits’ story does not conform to the expected scripts of victimhood within Global South politics or international human rights law. Their erasure, therefore, is not a result of normative insufficiency, but of political exclusion. Their case exposes the limitations of recognition politics and demands a critical re-evaluation of how international legal regimes construct, validate, and hierarchies suffering.

This politics of selective empathy is not merely theoretical; it is lived and repeatedly reproduced in moments of crisis. On 22 April 2025, a targeted attack in Pahalgam killed twenty-five Hindu tourists and one Christian tourist, drawing intense public attention. The United Nations Human Rights Council, in its Fifty-ninth Session (16 June–11 July 2025, Agenda Item 2), described the incident in stark terms: “In a horrific and inhumane act of terror, a group of heavily armed terrorists attacked a civilian area near Pahalgam, Indian-Administered Jammu and Kashmir, on 22nd April 2025, targeting and brutally murdering unarmed Hindu civilians after asking their religious identity. This premeditated assault on innocent people constitutes not only a violation of human rights but also a gross act of religious persecution. Such incidents are a direct affront to the principles of humanity, secularism, and coexistence and must be unequivocally condemned by the international community.” (UN Human Rights Council 2025).

While the victims were not Kashmiri Pandits, the nature and location of the attack, coupled with its religious targeting, re-kindled dormant conversations about the unresolved trauma of the Kashmiri Pandit exodus and the broader issue of religious extremism in the Valley (Surbhi Kaul 2025). Public reactions on social media and in scattered editorials pointed to a long-standing discomfort: the disproportionate silence that has accompanied anti-Hindu violence in Kashmir, particularly when directed against displaced or minority populations (Barooah 2025). However, even this renewed discourse was fleeting, quickly overshadowed by dominant political narratives that avoided deeper engagement with the historical and legal implications of such violence. The episode thus reveals the persistent selectivity of public empathy and state response, where certain victimhoods are foregrounded while others, such as those of the Kashmiri Pandits, remain marginalised. In international legal terms, this discursive disappearance reflects a failure to acknowledge religiously targeted displacement as a continuing harm, thereby reinforcing the community’s legal and symbolic invisibility (Saha 2022; Mir 2024).

3.3. Legal Classification, Treaty Obligations, and the Limits of Recognition

Building on these normative assessments, Warikoo (2023) provides detailed historical evidence that the campaign against the Kashmiri Pandits in 1989–1990 amounted to a concerted attempt to eradicate an indigenous community from the Valley. His account, drawing on testimonies and administrative records, shows that hundreds of thousands of Pandits were subjected to killings, threats, abductions, sexual violence, and the destruction of property, schools, and more than two hundred temples. He characterises this as ethnic cleansing and xenophobia, resulting in the community’s complete displacement and the loss of cultural and territorial continuity. The absence of prosecutions or restitution, and the continuing occupation of Pandit property, confirm what Thakar and Mishra (2020) identify as the dual violation of genocide and crimes against humanity under the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (United Nations 1948) and the Rome Statute of the International Criminal Court 1998. When read together with earlier doctrinal analyses, Warikoo’s documentation anchors the legal argument in empirical fact: the persecution of the Pandits was neither incidental nor collateral to insurgency but a deliberate project of elimination. A key moment of community agency occurred in 1995, when representative organisations of the Kashmiri Pandits, including Panun Kashmir, filed a detailed petition before the National Human Rights Commission alleging mass killings, forced displacement, and the systematic destruction of property. In its 1999–2000 Annual Report, the Commission acknowledged the community’s suffering as “a clear case of ethnic cleansing” and noted that the crimes were “akin to genocide.” Yet it ultimately accepted the Government of India’s submission that the community should be classified as “migrants,” not internally displaced persons (NHRC 1999–2000, pp. 115–17). The Commission also observed that more than two hundred First Information Reports had been filed without resulting prosecutions, and that no effective restitution mechanism had been instituted. This official finding is crucial: it demonstrates both the agency of the Pandits in seeking institutional redress and the Indian state’s consistent resistance to legal classifications that would trigger international scrutiny.

International monitoring bodies have also consistently classified the Kashmiri Pandits as internally displaced persons. The Norwegian Refugee Council’s Internal Displacement Monitoring Centre estimated that at least 506,000 people in India were living in displacement at the end of 2011, a figure that explicitly includes those who fled Jammu and Kashmir in 1990 due to separatist violence targeting the Hindu minority (NRC/IDMC 2012). The report highlights that India has no national policy or legislation addressing displacement caused by armed conflict or communal violence and that protection is largely devolved to state governments which are “often unaware of IDPs’ rights or reluctant to offer support.” These findings confirm that the non-recognition of the Pandits as IDPs is not an evidentiary oversight but part of a systemic legal vacuum within India’s governance of internal displacement.

India acceded to the Genocide Convention on 27 August 1959 without reservation (United Nations Treaty Collection 2024a) but has not ratified the Rome Statute of the International Criminal Court 1998 (United Nations Treaty Collection 2024b), limiting international criminal jurisdiction over acts committed on its territory. India’s reluctance to extend recognition to the Kashmiri Pandits is consistent with its broader stance on indigeneity. Although it constitutionally recognises more than seven hundred Scheduled Tribes under Article 342, India rejects the applicability of international indigenous frameworks to any community within its borders. India’s reluctance to extend recognition to the Kashmiri Pandits is consistent with its broader stance on indigeneity. Although it constitutionally recognises more than seven hundred Scheduled Tribes under Article 342, India rejects the applicability of international indigenous frameworks to any community within its borders. India’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 was accompanied by a significant interpretive caveat. Delivering India’s statement at the General Assembly, Ajay Malhotra clarified that although the Declaration did not define indigeneity, it referred to peoples who were “descended from the populations which inhabited the country… at the time of conquest or colonization” and who retained “socio-economic, cultural and political institutions” (James 2022, pp. 9–10). India nevertheless asserted that the concept of indigenous peoples “is a misnomer in India,” as all populations within its borders are historically rooted there, and categorising only some groups as indigenous would imply others are “non-natives or foreigners” (James 2022, pp. 8–9, 30). Scholars view this as a paradoxical stance: India affirms the universality of indigeneity while denying its differentiated political relevance domestically. India has consistently rejected any notion of internal self-determination, reserving during its 1979 ICESCR accession that the right applies only to peoples under foreign domination and not to a section of a sovereign nation (United Nations: India 1979, pp. 439–40). This reflects a sovereignty-conscious position, with Malhotra emphasising that the right to self-determination “did not apply to sovereign independent States or to a section of people or a nation” (Malhotra 2007, cited in James 2022), maintaining that the Declaration must not threaten “national integrity” (James 2022, p. 10). Thus, India supports protections for tribal peoples within its constitutional framework, but resists international formulations that could externalise accountability or fragment state authority.

This position reflects a broader policy of domesticated exceptionalism: India embraces the language of cultural diversity and affirmative protection internally while declining external frameworks that could internationalise accountability. The legal classification of the 1990 events within the Convention’s framework would require demonstrating dolus specialis—the specific intent to destroy the Kashmiri Pandit community “in whole or in part”. While the documented killings, forced conversions and mass displacement suggest elements of persecution, determining such intent lies beyond the evidentiary scope of this article and would require dedicated prosecutorial inquiry (Warikoo 2023; Thakar and Mishra 2020).

Beyond the legal framing, recent interdisciplinary studies deepen the understanding of the Kashmiri Pandits’ displacement as a lived process of dislocation and reconstruction. Singh (2015) documents how the community re-created sacred landscapes in Jammu, replicating temples such as Khir Bhavani and Sharika Devi to preserve continuity of worship and cultural identity. His empirical fieldwork (1992–2012) illustrates that these replicated sites became loci of both spiritual survival and political invisibility, highlighting how displacement transforms spatial belonging into a mode of cultural endurance. Tripathi (2014) similarly traces the structural and political conditions that produced the exodus, drawing on Jagmohan’s (1990) correspondence and official records to expose governmental paralysis and the failure of protection mechanisms. His analysis of identity loss among second-generation exiles parallels Suvir Kaul’s (2022) observation that collective memory in Kashmir functions as a shared yet contested archive, where both Hindu and Muslim narratives of suffering have been mobilised but rarely reconciled. Taken together, these studies reinforce the argument that the Kashmiri Pandits’ exclusion from formal recognition cannot be understood solely in legal terms: it is also the outcome of fractured memory politics and the erosion of institutional responsibility that have persisted since 1990.

Given these constraints, the argument advanced here does not rest on criminal classification. This distinction follows the evidentiary hierarchy recognised in international criminal law, which separates prosecutorial thresholds from protection-based recognition under human-rights instruments Rather, it demonstrates that the Kashmiri Pandits satisfy the definitional criteria for internally displaced persons under the Guiding Principles on Internal Displacement (United Nations Office for the Coordination of Humanitarian Affairs—UN OCHA 1998) and merit recognition as an indigenous community under the United Nations Declaration on the Rights of Indigenous Peoples (Malhotra 2007, cited in James 2022). Their continued exclusion from these frameworks cannot be justified by legal ambiguity: both instruments operate on lower evidentiary thresholds than international criminal law and are designed to secure protection and restitution, not conviction. The non-recognition of the Pandits thus reflects not normative uncertainty but the politics of selective visibility that shape post-colonial governance.

While much of the critical scholarship on Kashmir frames the region primarily through Muslim experiences of occupation and development (Suvir Kaul 2022), such analyses rarely acknowledge the concurrent dispossession of the Kashmiri Pandits. This asymmetry in academic and policy discourse itself illustrates the phenomenon of epistemic suppression discussed in this paper: certain forms of suffering are amplified within global human-rights and decolonial narratives, while others remain marginal or politically inconvenient. The exclusion of the Pandits from both state and scholarly recognition thus reflects not only legal omission but also a broader politics of knowledge production in which visibility itself becomes stratified.

These dynamics are not unique to India; comparable struggles over recognition can be observed across other Indigenous contexts, from Native American nations to the Ainu and Inuit peoples, as the following section explores.

4. Theorising Invisibility: A TWAIL and Constructivist Critique

4.1. Selective Deployment of Norms in the Postcolonial State

The postcolonial state often inhabits a paradoxical position: on the one hand, asserting sovereign identity rooted in anti-colonial resistance, and on the other, adopting the language of universal human rights to assert international legitimacy. This duality has enabled many postcolonial regimes to engage in what scholars have termed the selective deployment of international legal norms, where rights discourses are mobilised to protect dominant ethno-national identities or state-centric historical narratives, while subaltern and inconvenient claims are actively marginalised (Mutua 2001; Anghie 2005). In the Indian context, this selective application is visible in how international frameworks such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Guiding Principles on Internal Displacement are referenced in international diplomacy or policy-making, but seldom applied to populations like the Kashmiri Hindus, whose recognition would destabilise the prevailing majoritarian or secular-liberal narratives. This paradox becomes particularly stark when viewed through the lens of norm diffusion. As Göcke ([2013] 2017) argues, many of the principles within UNDRIP, such as land restitution, cultural autonomy, and self-identification, have attained the status of customary international law. Yet, their implementation remains contingent on the narrative compatibility between the claimants and the state’s preferred geopolitical or communal positioning. The case of the Kashmiri Pandits thus exposes how international norms are internalised selectively by postcolonial states, not on the basis of legal eligibility, but on the perceived threat a group’s recognition poses to the national narrative of victimhood or cohesion.

4.2. Recognition Politics: Who Is Allowed to Be a Victim?

TWAIL framework allows for a nuanced interrogation of how victimhood is constructed in postcolonial societies. TWAIL scholars critique not merely the coercive legacies of Western international law, but also how postcolonial states reproduce forms of exclusion within their own borders (Rajagopal 2003; Chimni 2006). In this view, sovereignty is not rejected outright, but interrogated as a site of internal differentiation, where some communities are recognised as bearers of rights while others are rendered invisible.

The case of the Kashmiri Pandits is instructive here. As a displaced Hindu minority, their narrative disrupts the dominant binary in international law that aligns Global South justice with Muslim or tribal subalterns resisting a repressive postcolonial state. The Pandits’ story resists easy classification: they are neither aligned with the state nor neatly oppositional to it. Their persecution by Islamist militants and their continued marginalisation by the Indian state means they occupy a liminal space, often excluded from both domestic justice frameworks and global solidarity movements. In this sense, the politics of recognition has constructed a narrow horizon of acceptable victimhood in which the Pandits do not fit, a phenomenon comparable to what Mahmood Mamdani has called the “politics of naming” in post-conflict contexts (Mamdani 2001). This exclusion also reflects a broader discomfort within Global South academic and advocacy spaces to acknowledge majoritarian violence against minorities that do not conform to the usual colonial/postcolonial victim-oppressor scripts. The Pandit experience, then, is not merely unrecognised, it is actively disqualified from recognition by the prevailing frameworks of international solidarity and justice discourse.

As several scholars have observed, the recognition of certain communities as legitimate victims within international legal and political discourse is not determined solely by the severity or legality of the harms they suffer, but by how well their narratives conform to established geopolitical and moral scripts (Mutua 2001; Mamdani 2001). The case of the Kashmiri Pandits exemplifies this dynamic of recognition politics. As Thakar and Mishra (2020) argue, the Pandits’ forced displacement involved clear violations of international human rights law and aligns with the definitional elements of both genocide and crimes against humanity under the Rome Statute and the Genocide Convention. They also meet the criteria for recognition as internally displaced persons (IDPs) under the 1998 Guiding Principles on Internal Displacement, given the involuntary nature of their exodus and the absence of durable solutions. Yet, this legal eligibility has not translated into actual recognition, either within domestic legal frameworks or in international advocacy spaces. As Mir (2024) explains, this is not due to evidentiary gaps but rather a broader discomfort with the Pandits’ narrative, which disrupts binary framings that position the postcolonial state as the sole oppressor and religious minorities as the sole victims.

From a TWAIL perspective, this invisibility reveals how postcolonial sovereignty can function not only to resist Western domination but also to obscure or silence inconvenient internal histories. The Pandits’ identity, as a Hindu minority displaced by Islamist militancy, yet abandoned by a state claiming to represent their interests, defies the dominant victim/perpetrator dichotomy within Global South solidarity imaginaries. In this sense, the denial of recognition is not merely a legal oversight, but a political and epistemic act, reflecting a hierarchy of victimhood that privileges some forms of suffering while rendering others illegible. This disqualification from victim status despite legal eligibility reinforces the central claim of this paper: that the international legal order, as shaped by both state sovereignty and normative politics, often withholds recognition not because of what the law says, but because of what the story threatens.

4.3. Constructivism and Legal Category-Making

Constructivist approaches in international legal theory emphasise that legal categories are not static but are socially constructed through discourse, power, and institutional practices (Finnemore and Sikkink 1998). Rather than viewing the diffusion of legal norms as an objective process, constructivists argue that norm acceptance is shaped by a range of factors including political narratives, historical memory, and strategic interests.

In this framework, the non-recognition of the Kashmiri Pandits can be seen as a case of non-diffusion, a deliberate refusal of norm internalisation due to the discomfort their recognition would cause to both the Indian state and the broader geopolitical framing of Kashmir. As Thakar and Mishra (2020) and Saha (2022) have argued, the community’s plight meets the definitional thresholds for recognition under various international legal instruments, including those related to genocide, internal displacement, and cultural erasure. Yet their claims remain unacknowledged, not because of legal ambiguity, but because their recognition would rupture entrenched narratives of oppression and resistance that underpin both domestic policy and international advocacy.

Furthermore, the construction of legal categories like “indigenous” or “IDP” is inherently political. As Göcke ([2013] 2017) notes, while self-identification and historical continuity are sufficient under international law, the recognition of such status is ultimately subject to state consent and international political will. In the absence of advocacy coalitions or geopolitical utility, claims like those of the Kashmiri Hindus are left in a state of legal limbo, a form of epistemic erasure that serves to reinforce existing hierarchies of suffering.

5. Toward Justice in Kashmir: Recognition and Reparation

5.1. Reclaiming Indigeneity: A South Asian Reframing

The international legal framework around indigeneity has historically emerged from settler-colonial contexts, primarily in the Americas and Australasia, where Indigenous peoples were dispossessed by European expansion and later subsumed into nation-states that claimed legal supremacy through Christian theological doctrines, secularised in modern law. This genealogy, as d’Errico (2000) shows, remains embedded in U.S. Indian law, which relies on concepts like “wardship,” “plenary power,” and the “Doctrine of Discovery.” These legal structures are not simply artefacts of colonialism but active tools that maintain the illusion of Native sovereignty while centralising authority in the state. d’Errico traces how Christian dominance, first expressed through papal bulls like Inter Caetera (1493) issued by Pope Alexander VI (Pope Alexander VI [1493] 1917, pp. 61–63), was absorbed into landmark U.S. decisions such as Johnson v. M’Intosh (1823), which declared that Indigenous nations held only a “right of occupancy”, subordinate to European (later American) sovereignty (d’Errico 2000, pp. 484–87). The U.S. claim of “government-to-government” relationships with Native tribes thus masks a continued regime of managed dependency, where recognition is granted only to the extent that it does not disrupt federal authority. Literary and cultural self-representation have also played a critical role in sustaining Indigenous identities and claims to recognition. As Neogi (2020) observes, Kashmiri Pandit narratives such as Rahul Pandita’s Our Moon Has Blood Clots (Pandita 2013) share key features with Native American testimonial writing—groundedness in ancestral land, intergenerational trauma, and the assertion of cultural survival in exile. Similar to the Native American literature, which became a medium of reclaiming sovereignty within a dominant state order, Pandit narratives operate as acts of remembrance and resistance, transforming memory into a political claim to belonging. Yet, while Native American recognition eventually followed sustained legal mobilisation and statutory reform in the United States, the Kashmiri Pandits’ visibility remains largely cultural rather than juridical—an eloquent illustration that recognition in international law depends less on definitional precision than on the political will to translate cultural continuity into legal status.

d’Errico distinguishes Indigenous sovereignty from civil rights struggles, arguing that the former is not about inclusion in a colonial state but about restoration of precolonial ontologies rooted in land-based spirituality and collective memory. He critiques how even seemingly inclusive policies reframe Native demands through Euro-Christian legal assumptions, obscuring the theological roots of Indigenous dispossession while upholding legal precedents based on Christian supremacy (ibid., pp. 488–89). Furthermore, the refusal of the U.S. to recognise Native Americans as “peoples” under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) exposes the selective application of international law. As d’Errico (2000, p. 496) notes, the term “peoples” would imply collective self-determination, something the U.S. denies on the grounds of safeguarding national sovereignty.

Oguamanam (2004) extends this critique globally, noting that many postcolonial states, while not settler-colonial in the traditional sense, reproduce similar patterns of denial. From a TWAIL perspective, he argues that the indigenous rights regime has been shaped not by benevolence but by long-standing counter-hegemonic mobilisations by marginalised groups. However, in postcolonial states like India, such recognition is often resisted because it disrupts nationalist unity, threatens territorial claims, or reveals internal hierarchies. Oguamanam emphasises that indigeneity in Asia and Africa is frequently invisibilised not because groups fail legal tests of cultural rootedness or marginalisation, but because their recognition would challenge the very architecture of the modern nation-state (Oguamanam 2004).

These insights are crucial for rethinking indigeneity in the South Asian context, particularly in relation to Kashmiri Hindus, or Pandits. As a community with deep historical continuity in the Kashmir Valley, sacred geography embedded in local cosmology, and collective memory of displacement, Kashmiri Pandits meet many of the substantive criteria for indigeneity outlined in UNDRIP, such as cultural distinctiveness, precolonial presence, and spiritual attachment to ancestral lands. Yet they remain unrecognised as an Indigenous people by both the Indian state and international legal forums. This denial cannot be explained by legal ambiguity alone. Rather, it reflects an epistemic discomfort with a Hindu group asserting indigeneity in a postcolonial secular republic that officially protects religious minorities yet often sidelines Hindu civilisational institutions from frameworks of cultural recognition and restitution.

India’s model of secularism, a form of selective constitutionalism, treats temples, festivals, and sacred landscapes as matters of state administration rather than Indigenous cultural heritage. This is evident in the bureaucratic control over temple trusts, the demolition or abandonment of ancient sites like the Martand Sun Temple, and the refusal to recognise pilgrimages like Sharda Peeth Yatra as cultural rights. As d’Errico (2000, pp. 497–98) warns, when sovereignty is redefined within colonial frameworks of hierarchy and legality, it erases alternative cosmologies. A decolonial analysis reveals that both Native American and Kashmiri Hindu claims are suppressed not due to normative invalidity, but because they do not conform to Euro-Christian templates of minorityhood, victimhood, or statelessness.

5.2. Legal and Normative Tools for Justice

Despite this resistance, international human rights law offers instruments that support recognition and redress for communities like the Kashmiri Pandits. Articles 7–10 of UNDRIP affirm the rights of Indigenous peoples to life, cultural survival, freedom from forced displacement, and restoration of ancestral territories. Article 8 (2) (b) further obliges states to provide redress for actions that dispossess Indigenous peoples of their lands and cultural institutions.

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (CESCR), both ratified by India, also affirm the right of all peoples to cultural self-determination, non-discrimination, and participation in decisions affecting their heritage. Under Article 27 of the ICCPR, minorities are guaranteed the right to enjoy their own culture, practice their religion, and use their language, rights that have not been meaningfully secured for displaced Pandits, especially in exile camps and controlled transit colonies.

Domestically, the Indian Constitution provides a framework for cultural rights (Articles 25–29) and equality before law (Article 14). However, these provisions have not been operationalised to support the Pandits’ return or restore their access to sacred sites. The Scheduled Tribes recognition framework, India’s functional analogue to indigeneity, remains narrowly defined, often excluding communities like the Pandits who do not conform to tribal prototypes but nonetheless exhibit deep-rooted civilisational claims.

5.3. Moving from Erasure to Engagement

To move toward justice, legal recognition must be paired with material and symbolic engagement. International human rights bodies and UN special procedures should be encouraged to re-examine cases like Kashmir, not through the lens of ethno-national conflict alone, but through a framework of Indigenous rights, cultural survival, and reparative sovereignty. Civil society and diaspora organisations have already begun this work, documenting sacred sites, archiving oral histories, and advocating for global recognition of Kashmiri Hindus as a displaced Indigenous people.

The path forward requires a fundamental shift: from viewing the Pandits as passive victims or geopolitical tools to engaging them as civilisational agents with historical continuity and spiritual geographies worth protecting. Recognition must go beyond legal status, it must entail the restoration of land access, religious autonomy, and cultural authority. As this section has argued, justice in Kashmir must begin with a reframing of indigeneity itself, grounded not in Western legal formalism but in the plural and spiritual lifeworlds of South Asia’s displaced civilisations.

6. Conclusions: Justice Beyond Recognition

The exclusion of Kashmiri Pandits from global legal frameworks of indigeneity and internal displacement is not the result of definitional ambiguity, but of what Schweiger (2018) terms “legally un/qualified silence”, a condition in which legal inaction is not neutral, but a form of structured exclusion. Despite satisfying normative benchmarks set by international instruments such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Guiding Principles on Internal Displacement, the Pandits remain unrecognised, not because they fall short of eligibility, but because their experience disrupts dominant postcolonial binaries and geopolitical sensibilities.

Schweiger’s analysis of silence in customary international law demonstrates that legal systems listen selectively. Law’s “horizon of expectation”, its implicit framework for what counts as relevant or actionable, filters out inconvenient claims, reinforcing what she calls “disciplined exclusion” (Schweiger 2018, pp. 104–5). For the Pandits, whose displacement cannot easily be narrated within the conventional victim–oppressor template of the Kashmir conflict, this has meant not only political abandonment but epistemic disqualification. Their suffering is not unheard; it is refused listening. International data compiled by the NRC/IDMC (2012) continue to list over half a million people internally displaced by violence in India, including those from Jammu and Kashmir, underscoring the need for a domestic legal mechanism for recognition and durable solutions.

This legal silence is not incidental. As Donnelly (2013) explains, the international human rights system lacks coercive enforcement and relies fundamentally on state cooperation, diplomatic consent, and political will. Where these conditions are absent, implementation retreats and institutional silence becomes the default mode. When states choose non-recognition, international bodies too often follow suit, treating state inaction as legally meaningful acquiescence rather than contestable silence.

From a TWAIL perspective, this reflects the broader postcolonial condition wherein the modern state inherits and replicates the erasures of colonial sovereignty (Chimni 2006). Constructivist scholarship reinforces this view by showing that legal categories such as “indigenous” and “IDP” are neither neutral nor automatic; rather, they are produced and stabilised through power, advocacy, and selective norm diffusion (Finnemore and Sikkink 1998). The invisibility of the Kashmiri Pandits thus emerges not from legal insufficiency, but from their political misalignment with globally legible victimhood.

Justice for the Kashmiri Pandits must begin with a reconfiguration of the very epistemic frameworks that currently deny their claims. Recognition must go beyond symbolic affirmation to include reparative restoration of land, cultural autonomy, and sacred geography. This requires that international law confront its own complicity in sustaining selective silences. Civilisationally Indigenous communities, whether Hindu, Native American, or otherwise, must be seen not as anomalies within a Western legal worldview, but as agents of sovereign traditions rooted in spiritual, territorial, and historical continuity. To do justice to the Kashmiri Pandits is not merely to include them in existing categories, but to expand those categories themselves, ontologically, legally, and ethically.

In this light, Schweiger’s framework invites us to take silence seriously, not as an absence of law, but as a tool of governance. The silence surrounding the Kashmiri Pandits is neither apolitical nor inevitable. It is the outcome of legal filtering, narrative discomfort, and institutional complicity. To move beyond this condition requires that both domestic and international legal systems engage in epistemic repair, beginning with the recognition that silences are chosen, maintained, and often deeply strategic. Only when international law acknowledges the power of what it refuses to name can it begin to serve those communities that have, until now, existed only at its edge.

In bringing the case of the Kashmiri Pandits into the purview of international legal critique, this paper does not depart from the project of decolonisation; it seeks to expand its reach. The persistent legal invisibility of this displaced Hindu community exposes the epistemic boundaries of both international law and the critical frameworks often employed to challenge it. As a scholar working within the European academic space, I offer this intervention with full awareness of the discomfort it may provoke. Yet, if decolonial and intersectional scholarship is to remain intellectually honest and ethically consistent, it must be willing to confront its own exclusions. This reflection is not intended as a rejection of these paradigms, but as an invitation to apply them with greater universality, even, and especially, when doing so unsettles entrenched political orthodoxies.

From a policy perspective, the recognition of the Kashmiri Pandits should begin with their formal classification as internally displaced persons under the Guiding Principles on Internal Displacement (UN OCHA 1998), a step that would not affect territorial sovereignty but would trigger concrete protection obligations. Domestically, India could establish an independent commission on protracted displacement to coordinate restitution, housing, and livelihood measures. Internationally, the UN Special Rapporteur on the human rights of IDPs could extend monitoring to long-term intra-state displacement in South Asia.