Is Secession Justified in Kashmir?

NEW DELHI: When W.H Auden penned the following lines: “Abruptly mounting her ramshackle wheel, Fortune had pedalled furiously away. The sobbing mess is on our hands today”, he could well have been thinking of the Kashmir valley. Though the Valley has been on the boil since 1990, matters have worsened in recent years. Since 8 August 2016, passionate demands for azaadi have rent the air, and repressed by the government through the use of tremendous coercion. And once again the Kashmir case has thrown secession onto the centre stage of international politics.

Though the breaking and the making of a state are significant for the international order, international law holds that separatism falls within domestic jurisdiction. That is until the government of the predecessor state recognises the new state; there is strong presumption in favour of the territorial integrity of states. The refusal of international law to recognise secession pushes the reason for secession under the metaphorical carpet. And we simply do not know which side we should be on. We should know, for secession is not only about breakaways, the act challenges the capacity of the parent state to provide justice to all.

India is a democracy. Democratic governments are obliged to protect minority and vulnerable groups through rights and regional autonomy. But in Kashmir democracy has been compromised. If India does not remedy historical injustices, and re-establish democracy in Kashmir, do affected groups have a prima facie right to secede?

Kashmiri’s, it can be argued, have a prima facie right to secede, but not because a plebiscite has not been held as promised by the Government of India after the monarch had signed the Instrument of Accession in 1947. In April 1948, the Security Council adopted Resolution 47 that directed Pakistan and then India to withdraw troops from Kashmir.

The essential precondition; the withdrawal of Pakistani troops was not met, therefore the lapse. Subsequently the militarisation of J and K that accompanied the constant threat of war between India and Pakistan, and the subsequent arrival of ‘third parties’ in the region in the shape of armed mercenaries in the early 1990s, ensured that the appropriate moment for the holding of the plebiscite did not come around.

Kashmiri’s have a prima facie right to secede because of the subversion of the special status allotted to the state of J and K by the Indian Constitution, and contractual provisions. This ‘original sin’ of the Government of India has been compounded by major infringements of the democratic rights of the people of J and K.

Yet an unqualified right to secede is troublesome for two reasons. One secession causes immense harm. In Sri Lanka, an estimated 7000 Tamil civilians were killed, and 72,000 civilians were displaced from their homes by the Sri Lankan army, as well as by the Liberation Tigers of Tamil Eelam, in the last phase of the civil war between January 2009 and May 2009. In 1971, an estimated 3 million people died in the war between the new state of Bangladesh and the parent country. About 8 to 10 million were rendered homeless.

Two, the right to secede is seriously compromised if minorities within the state that seeks independence resist the demand. The demand for secession has erupted in the Valley of Kashmir, and in the two Muslim dominated districts of Jammu. But for Kashmiri Hindus and Sikhs the valley is home as well. The Buddhist community in Ladakh holds that it prefers to be governed directly by the Government of India, or be amalgamated with Hindu majority regions in Jammu, or join East Punjab, or be reunited with Tibet. In Jammu, the predominantly Hindu community urges integration of J and K into the Indian Union, and abolition of the special status of J and K. For Gujjars, Bakkarwals, and Dogras, the Valley is their homeland. They oppose secession.

What we see here is a serious moral dilemma: between the right of secession and harm, and between the right to secede and the right not to secede. The only alternative to bloodshed and homelessness that will accompany a possible partition of the state is to conceive of solutions short of secession. For this we have to take the Kashmir issue out of the discourse of national security, and locate it in the discourse of democracy and realisation of self-determination within the political system.

There is no necessary link between self-determination and secession outside the colonial context, but there is an essential link between self-determination and democracy. For democracy is meant to enable people to determine their futures in freedom from coercive laws and the shadow of the gun. Moreover, according to democratic precepts, citizen’s rights are best realised through the grant of regional autonomy, participation, representation, and minority rights. Therefore, the Government of India should restore the special status granted to J and K by the Constitution of India vide Article 370, as but a start of a fuller process of restoring democracy and realising justice in the beleaguered state of J and K. If this happens, fortune might be persuaded to pedal back to the region just as furiously as it pedalled away.

In sum, democrats should shy away from secession and see it as inimical to democracy. For the alternative to the violence of the nation-state is not the setting up of another nation-state. Abuse of state power can best be ensured by constitutions and institutionalised democracy. Secession limits political imaginations; for the secessionist thinks an independent state is the solution to his problems. A new state might well be a part of the problem.

Accordingly the right of secession has to be taken seriously, but used sparingly and justified rigorously, just like the right to euthanasia. Some governments allow the terminally ill to put an end to their misery. But we do not defend euthanasia except in the very last instance. Similarly even if secession crops up in the face of injustice, the realisation of this right should be forestalled through the realisation of democratic self-determination.

(Professor Neera Chandhoke is National Fellow at the Indian Council of Social Science Research and was formerly Professor of Political Science at the University of Delhi.)

(Cover photograph Basit Zargar)