by Ridhi Aggarwal 17 February
Subnational refers to a group or a region within a nation or below the national level. Subnational challenges are those that occur within the confines of a nation and pertain to a specific region. These challenges represent varied demands put forth by people which they wish to be acknowledged or settled. These types of demands or challenges can be found in almost all democratic structures. These demands can be put across in the form of a peaceful protest or can take violent turns contingent on the situation, which can even threaten the unity or sovereignty of the nation. Although for a democratic country that takes into account the will of the people, it becomes incumbent that it acknowledges these demands of people, these demands can be addressed only within the constitutional framework.
India is a multi-culturalist nation with people belonging to different religions, ethnicities, cultures, and practicing distinct linguistics. The minority groups can sometimes develop unbridgeable frustrations that can emanate out of social inequality, political repression, any form of discrimination or injustice met out to them[i]. Such frustrations can sometimes take the form of a demand for a separate autonomous nation, under the belief that all their socio-political issues will be resolved. For example, the militant insurgency of Kashmir and Nagaland. The locals of the states have been demanding secession from India for decades. They propose to form an autonomous nation that would help them preserve their distinct cultural identities. Since the government of India claims that Kashmir and Nagaland are inalienable and integral parts of our Nation, any such framework for an autonomous country has to be worked out within the confines of the constitution. So, the question arises whether the constitution permits such an act of secession.
This paper attempts to analyze the common sub-national challenge in Kashmir and Nagaland—the demand for an autonomous country. Firstly, the paper establishes that any demand or an act of secession cannot be constitutionally undertaken. Secondly, the paper individually establishes how the demand for secession in these states is both, constitutionally illegitimate and otherwise impractical.
1) Is Secession Constitutionally Permitted?
A separatist or a secessionist demand is the one for independence. Here a political entity rejects the sovereignty of the existing state and demands to withdraw itself from the larger entity and become an autonomous country.[ii] A secessionist movement may arise when a cultural or a religious community develops unbridgeable frustrations that can emanate out of social inequality, political repression, any form of discrimination or injustice met out to them[iii].
India has witnessed strong empirical co-relationships between ethnic and religious sectarian groups and the demands for a secessionist act.[iv] India is a democratic country that derives its powers from the constitution. The constitution being the supreme source[v] any act, provision, or enforcement that transgresses it will not have any legal backup and will become illegitimate. India is a diverse country with different civilizations, religions, customs, languages, and ethnicities. It is common for a minority community to develop frustrations. In order to address some of these concerns Article 3[vi] of the constitution allows alteration in boundaries, renaming or even formation of a new state from an existing state. For example, Jawaharlal Nehru set up the State reorganization commission that devised a mechanism to reconstitute existing states that enabled the formation of a new state[vii] ‘Andhra Pradesh’ on a linguistic basis. Article 1[viii] of the Indian constitution talks about India as a Union of States where states are an inherent part of the nation, unlike the USA which is a federation of states. The drafting committee of the constitution made this distinction deliberately to indicate that the country is one integral whole where secession is not possible.[ix] So, the constitution entails no provision that can legally backup any secessionist act (demanding an autonomous entity) that might emerge out of this frustration. Since the act of secession does not lie within our constitutional framework, there is no legal mechanism for the states to undertake an act of secession. Any state that becomes a part of India under Part 1 of the constitution of India, will become an inalienable and integral part of the Nation. Thus, the Union once formed cannot be disintegrated constitutionally and the states are an irrevocable part of the indestructible Union[x]
2) Demand For Secession In Kashmir
After the Indo-Pak partition in 1947, Kashmir emerged as a princely state ruled by Maharaja Hari Singh. Both sides initially remained neutral until Pakistan decided to invade Azad Kashmir and Gilgit Baltistan and aided their Muslim brethren in the armed rebellion.[xi] Maharaja Hari Singh signed an Instrument of Accession in 1947[xii], acceding to the Union of India.[xiii] Eventually, the presidential order of 1954,[xiv] led to the incorporation of Article 370. It although accorded Jammu and Kashmir a special autonomous status but it was incorporated in agreement with the constituent assembly which made Jammu and Kashmir a state of the Indian subcontinent. Thus, Jammu and Kashmir became an inalienable and integral part of India.
Although the demand for a plebiscite in Kashmir has been going for decades it was in the 1990s that the state witnessed an overwhelming demand for it, so much that it took a violent turn.[xv] The Plebiscite would have conferred on the citizens a right of self-determination whether to join India, Pakistan, or become independent.[xvi] The demand of the majority of locals was in favor of independence from India, which if agreed to would have meant an act of secession.[xvii] Since Jammu and Kashmir is an inalienable part of India and the constitutional framework does not permit any act of secession then the act of secession has no legal basis, thus the demand for it becomes illegitimate.
Even if the constitution permitted an act of secession and allowed for Kashmir to become an independent nation, it would be impractical. Kashmir even if an independent nation would have to be either India or Pakistan’s subsidiary. Firstly, because of its geographical location, crammed between India and Pakistan. India and Pakistan have already fought three wars over Kashmir and would still want to lay claims over the independent country considering its strategic position, resources, and religious sentiments.[xviii] Secondly, being a newly formed country Kashmir would have fewer resources to spend on army and security in order to counter the external threat.[xix] Now if either of the countries would try to invade Kashmir, it would have to seek the other country’s help as it already happened in 1947. Thirdly, Kashmir is a landlocked region, therefore it would have to depend upon either India or Pakistan to provide it access to ports in order to keep its economy going. Thus, it would be impractical for Kashmir to gain independence and still be dependent on either of the countries.
3) demand for a nagalim
After India gained independence in 1947, rebellious and violent activities were prevalent in the areas surrounding Nagaland. These insurgent activities were propagated by the Naga National Council that wanted a political union of their own native groups. Finally, in 1960, Jawaharlal Nehru and Naga People Convention held discussions which were followed by a 16-point agreement that led to the incorporation of Nagaland as a full-fledged state of India. Thus, Nagaland became an inalienable and integral part of India.
The demand for Nagalim—Greater Nagaland is asserted by NSCN-IM (National Socialist Council of Nagaland-Isak-Muivah) with the objective of unifying the different Naga tribes of Assam, Arunachal Pradesh, and Manipur along with some portions of Myanmar.[xx] They demanded a sovereign territorial region. This demand had its roots in the cultural diversity and ethnic nationalism that was an expression of Naga National sentiment and the urge to preserve their identity.[xxi] These separatist groups have been carrying out insurgent operations in the furtherance of their demand.[xxii] Although in 1975 the Shillong agreement[xxiii] was signed, its failure led to the continuance of protests, which if agreed to would have meant an act of secession. Since Nagaland has been established as an inalienable part of India, any act of secession is beyond the constitutional framework of India. Then the act of secession has no legal basis, thus the demand for it becomes illegitimate.
Even if the constitution permitted an act of secession and allowed for Nagaland to become an independent nation, it wouldn’t be a feasible option. The entire basis for it being a separate nation lies in achieving an ethnic and linguistic identity. However, this goal is not sustainable. Since the Naga is not a homogenous tribe but consists of varied tribes with their distinct traditions. These tribal groups have witnessed several tension-points and hostility. The construction of Naga identity has been challenged by inter-tribal rivalry[xxiv]. There would be a high probability of the independent nation being placed under the hegemony of NSCN-IM, since it is the dominant political organization existing there. Although there is a consensus about a unified Naga nation, it would be a mistake to place all tribal groups under the hegemony of one organization NSCN-IM[xxv]. Since the interests of all these distinct tribal groups will not get represented, this might exacerbate the hostility amongst the different tribes that already exist and cause instability and turmoil in the north-eastern region.[xxvi] Furthermore, forming the Greater Nagaland would require the question of territorial boundary with Manipur to be settled which would further pose challenges by insurgent groups such as the United Liberation Front of Seven Sisters[xxvii]. Thus, it wouldn’t be feasible to establish Nagaland as an independent nation.
Two states of India, Kashmir and Nagaland, have been witnessing a demand for secession for decades. This paper attempted to analyze how these demands are constitutionally illegitimate as any act of secession does not lie within the constitutional framework. The paper, then, established how these states as autonomous countries would collapse due to varied reasons.
Since such protests have been persistent it becomes incumbent to work out an amicable solution within the ambits of the constitution that helps restore peace, law and order in the states. Granting greater autonomy to such states so that they can effectively address the problems at the grass-root level can be one such option.
[i] M.V. Naidu, “Multiculturalism and secessionism in the federations of India and Canada” (2005) The Canadian Journal of Peace and Conflict Studies <https://www.jstor.org/stable/24469675> accessed 15 December 2020.
[ii] Neera Chandhoke, “When is secession justified? The context of Kashmir” (2010) Economic and political weekly <https://www.jstor.org/stable/25764126> Accessed 15 December 2020.
[iii] M.V. Naidu, “Multiculturalism and secessionism in the federations of India and Canada” (2005) The Canadian Journal of Peace and Conflict Studies <https://www.jstor.org/stable/24469675> Accessed 15 December 2020.
[iv] Neera Chandhoke, “When is secession justified? The context of Kashmir” (2010) Economic and political weekly <https://www.jstor.org/stable/25764126> Accessed 15 December 2020.
[v] Kesavananda Bharati Sripadagalvaru vs. State of Kerala (1973) MANU SC 0445 1973
[vi] Constitution of India 1950, Art 3 (a) (b) (c) (d) (e).
[vii] Constitution of India 1950, Art 12.
[viii] Constitution of India 1950, Art 1.
[ix] Hinsa Virodhak Sangh v Mirzapur Motikuresh Jamat (2008) AIR 2008 SC 1892
[x] Texas V. White (1868) 74 U.S. 7 Wall. 700 700
[xi] Michael Deibert, “The Struggle for Kashmir (Continued)” (2007) Duke University Press <https://www.jstor.org/stable/40210080> Accessed on 16 December 2020.
[xii] Instrument of Accession 1947.
[xiv] The Constitution (Application To Jammu and Kashmir) Order, 1954.
[xv] Manisha Gangahar, “Decoding Violence in Kashmir” (2013) Economic and Political Weekly <https://www.jstor.org/stable/23391346> Accessed on 16 December 2020.
[xvi] Yoginder Sikand, “Islam and Kashmir; Syed Ali Shah Geelani’s Political Project” (2010) Economic and Political Weekly <https://www.jstor.org/stable/25742155> Accessed on 16 December 2020.
[xvii] Rashmi Sehgal, “Kashmir Conflict: Solutions and Demand for Self-determination” (2011) International Journal of Humanities and Social Science <> Accessed on 16 December 2020.
[xx] Kharingyo Shimrah, ‘The History of Naga National Movement’ (2015) <https://www.researchgate.net/publication/282857497_The_History_of_Naga_National_Movement> Accessed on 18 December 2020.
[xxi] Udayon Misra, “Naga Peace Talks: High Hopes and Hard Realities” (2003) Economic and Political Weekly <https://www.jstor.org/stable/4413207> Accessed on 18 December 2020.
[xxii] John Braithwaite, Bina D’ Costa, Cascades of Violence: War, Crime and Peacebuilding across South Asia (first published in 2018, ANU Press) 195 <https://www.jstor.org/stable/41856595> Accessed on 18 December 2020.
[xxiii] Nagaland Accord, The Shillong Agreement, 1975.
[xxiv] Maya Ranganathan and Shiva Roy Chawdhury, “The Naga Nation on the Net” (2008) Economic and Political Weekly <https://www.jstor.org/stable/40277745 > Accessed on 19 December 2020.
[xxv] Udayon Misra, “Naga Peace Talks: High Hopes and Hard Realities” (2003) Economic and Political Weekly <https://www.jstor.org/stable/4413207> Accessed on 18 December 2020.
[xxvii] Longvah Shonreiphy, “Territorial Dimension in the Naga Peace Process” (2014) International Research Journal of Social Sciences <www.isca.in, www.isca.me> Accessed on 19 December 2020.