ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

A+| A| A-

Contesting Secession

Contested Secessions: Rights, Self-determination, Democracy, and Kashmir by Neera Chandhoke (Delhi: Oxford University Press), 2012; pp 230, Rs 695.

Contesting Secession

Patrick Hoenig

Y
ou want secession? Think twice. There are very good reasons to deny secession the status of a panacea. The fear is that an unfettered right of secession will open the fl oodgates, resulting in “liliputisation” of the international landscape and wreak havoc with all that globalisation stands for (not a bad thing, some may say). Restrictive admission to the club of states is dictated by simple arithmetic. Kymlicka and Norman (2000: 13) convincingly make the case that with 5,000 to 8,000 ethnocultural groups around the world, spread over some 200 countries, there is no question of states being formed on the basis of ethnic, religious or cultural exclusivity.

You want to write about secession? Think thrice. Talking or writing about secession is not only setting you up for bruises in ego clashes. In the Indian context, it is also potentially inviting attention from elements undesirable in any political debate. Under the Unlawful Activities (Prevention) Act (1967), any action, including by words, either spoken or written, which supports the claim to bring about secession of a part of India (and even plebiscite in an area considered to be part of India) is punishable with imprisonment for up to seven years. A presentation in a conference hall or seminar room will do. Even, potentially, a balanced and well-argued book.

Onto that tightrope, one pace shy of political controversy, on one side, and legal trouble, on the other, steps Neera Chandhoke with her new book that has both secession and Kashmir in the title, separated only by a comma. Truth be told, we do not have to worry too much. It soon turns out that Kashmir serves as the “empirical referral”, and Chandhoke is mostly concerned with political theory, an approach she chose, as she frankly admits in the acknowledgements, because it does not require

book review

Contested Secessions: Rights, Self-determination, Democracy, and Kashmir

by Neera Chandhoke (Delhi: Oxford University Press), 2012; pp 230, Rs 695.

handling of “quantitative data”.1 There is of course nothing inherently wrong with using empirical data for making an argument. But then again, there is nothing wrong with political theory either.

The Constitutional Angle

One of the main tasks of political theory, as Michael Freeman in his acclaimed book on human rights observes, is to explain and evaluate the relations between governments and their citizens. Anyone bold enough to try and shed light on the strained relations between government in its broadest sense and the people of Jammu and Kashmir (J&K) has their work cut out for them (and we have not even begun talking about the relations between New Delhi and the state of J&K, between people living on this side of the Line of Control and that, between people residing in Kashmir and those who have had to leave, between various regions in the former princely state of J&K and, alas, between India and Pakistan). Noted jurist and constitutional expert A G Noorani has just published, complete with a thoughtful introduction, a collection of primary sources on the historical context of Article 370 of the Indian Constitution, which governs the tortured relationship between New Delhi and the state of J&K. Fleshing out the implications of Article 370 from the viewpoint of popular constitutionalism would have given Chandhoke an interesting opening to the subject at hand.

However, the closest Chandhoke comes to addressing the constitutional dimension of secession is when she juxtaposes “procedural secessions” with what she

june 2, 2012

qua lifies as “contested secessions” (pp 2-12). It is of course true that the notion of secession has been discussed in purely legal terms for too long with results too inconclusive for anyone academically

inclined to come away being satisfi ed. But by giving short shrift to constitutional practice in countries with an ethnic diversity similar to India’s, such as Ethiopia, Chandhoke cuts off a debate that just might push the institute of secession into new directions. For Chandhoke, Ethiopia is a country where secession is considered an “uncontested right” that can be realised whenever “certain procedures” are met (pp 2-3).2 Qualifying Ethiopia as a situation falling outside the gamut of cases she is prepared to look at, namely, cases of contested secession, Chandhoke curiously turns the reader’s attention to school book examples of procedural secession scenarios, such as Norway and Quebec (pp 3-6).

This is an early disappointment. Scholars conversant with the ground situation in sub-Saharan Africa explain that the rationale behind introducing a secession clause in Ethiopia’s constitution is not to promote secession, but, on the contrary, to maintain the unity of the state. With Ethiopia fl aunting its own brand of “ethno-federalism”, a term that Chandhoke fancies even though it throws up issues very similar to secession, however, within the state, it appears that sub-Saharan Africa relates to political and social realities in south Asia much more intimately than the secession scenarios we have seen shaping up in North America or Europe.

The Theoretical Argument

So is there a right to secession? Given to easy binaries, Chandhoke distinguishes between democratic and undemocratic states. We learn that while in “undemocratic states secession is arguably a justified right”, in the context of “formal democracies” (among which Chandhoke counts India) “the right of secession is a weak one” (p 121). For even though the state may not deliver justice to a segment of its population, under certain circumstances and for certain amounts of time,

vol xlviI no 22

EPW
Economic & Political Weekly

BOOK REVIEW

there are always democratic institutions, a system of checks and balances, and, most of all, watchful civil society actors to correct mistakes, reverse injustice done and put things right again (in which case secession becomes obsolete).

Such belief in the remedial qualities of democracy, grounded in liberal theory from which Chandhoke draws but also distances herself,3 is admirable for its idealism and suspicious for its detachment from ground realities. Chandhoke discusses at length the conceptual underpinnings of how citizens give consent and legitimacy to the state (pp 73-78), but her argument that “[w]e express consent to the authority of the state because we obey laws” (p 79) is hardly convincing if we picture the situation of Kashmiris living under the Damocles’ sword of the Armed Forces (Special) Powers Act – AFSPA

– (1990).4 Following a mission to India in March 2012, UN Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns stated that the AFSPA “has no role to play in a democracy”, “clearly violates International Law”, and “should be scrapped”.

Equally pressing, from a conceptual standpoint, is the question of what corrective powers, if any, civil society possesses. Chandhoke herself seems to be having her share of doubts. That at least is the impression we gain from reading her earlier writings. In a monograph dedicated to, and titled, The Conceits of Civil Society, Chandhoke (2003: 50) draws attention to the irony that “the very state that civil society supposedly positions itself against enables (italics in original) the latter in the sense that it provides the legal and the political settings for the sphere to exist and maintain itself”. In other words, the “autonomy of civil society from the state emer ges as an optic illusion” (ibid: 51).5 It is of course possible that Chandhoke’s position has evolved over the years but if this is the case the faithful reader might have appreciated an explanation as to how civil society has turned from an image of the state into its corrective.

Another problem arises at the level of morality. “When democracies falter and make mistakes”, Chandhoke maintains, “the responsibility lies upon civil society groups to insistently and resolutely press for a reversal of historical wrongs, and for the institutionalisation of justice to minority groups” (pp 121-22). But why civil society should feel compelled to bail out a state that does not meet its social contract obligations towards a segment of its population is not entirely clear. One would certainly have liked to see Chandhoke engage with the writings of Angana Chatterji, Nandita Haksar, Sanjay Kak, Gautam Navlakha or Arundhati Roy, just to name a few. All have very critical things to say about the state of affairs in J&K and, in extension, the state of India. Maybe Chandhoke will do so in the future, in a format less committed to the academic discourse, but given her special interest in “institutionalised injustice” one would have thought Chandhoke would at least draw on the more academically inclined works of analysts such as Haley Duschinski, Warisha Farasat and Fasiha Qadri who admirably have turned the spotlight on how patterns have emerged of human rights violations in J&K.6

Lack of Conclusive Data

Omissions aside, Chandhoke then poses what she sees as the pertinent question: In “formal democracies” where segments of the population are subjected to “institutionalised injustice”, does a right to secession follow? Rather than making a case for or against secession from the viewpoint of what can be made out to be the law (de lege lata), Chandhoke extensively argues from the standpoint of what she thinks should be the law (de lege ferenda). That approach insulates her from having to marshal conclusive data to show what might constitute state practice in the realm of secession. But for all the methodological choosiness, one would have expected Chandhoke to cover the ground she has picked for her central argument with greater circumspection.

Chandhoke is of course right when she argues that it is impossible for us to go through life “insulated from other values, other belief systems, and other notions of morality (p 137) and that it would be desirable for us “to speak to each other rather than proclaim a closure on dialogue” because we have arrived at a “definitive truth” (p 152). But this is not necessarily, as Chandhoke leads us to believe, an argument against the institute of secession. Grounded in the “morality of international law”, a recent stream of legal theory argues that a right to secession arises when there is (a) a massive violation of human rights, (b) an illegal annexation of territory or (c) a persistent breach of “intra-state autonomy arrangements” (Norman 2006: 172-73).7 It is good policy to penalise the state for showing disrespect to group rights and rewarding it for good faith negotiation and implementation of autonomy agreements offering adequate protection to tributary cultural flows. Seen through that lens, creating the legal ground for secession can be a deterrent to states breaking up.

Finally, we may want to say a word on the political in the theoretical. Despite Chandhoke’s assurances that her approach is grounded in political theory, her distinction between “formal democracies” and “undemocratic states” (p 107) allows for a difference in evaluation (and treatment) of secessionist scenarios in India and Pakistan that has direct implications for policymaking. Chandhoke does acknowledge that the secession of Bangladesh from Pakistan in 1971 came at the price of tremendous human suffering or, in her words, “considerable human cost”. However, the secession was “justifi ed”, or so she claims, because “Pakistan responded to resistance by the use of military force” and “at no stage”, showed willingness “to either address the grievances of the people of East Pakistan or attempt to negotiate the declaration of independence by the leaders of the Awami League” (p 100). But what if we were to peel the historical grist from her argument and fit it into the contemporary discourse on Pakistan?

Pakistan is hardly a state today that passes muster when it comes to meting out fair and equal treatment to all of its citizens. In a recent congressional hearing US lawmakers came down hard on the Pakistani government for suppressing a separatist movement in Balochistan, an occurrence that resonated in the Indian media and triggered comparisons with the “1971 revolt in East Pakistan”.8 So in Chandhoke’s world of ideas there is justification for India to help the Balochs

EPW
june 2, 2012 vol xlviI no 22

BOOK REVIEW

in their liberation struggle, a routine accusation from Pakistan, while the argument that the proxy war launched by Pakistan in Kashmir is to be qualifi ed as international terrorism remains intact.

The Political and the Personal

Chandhoke’s choice of words occasionally baffles. It starts with the title that seemingly makes a distinction between “rights” and “self-determination” (the comma between the two in the title can hardly be an oversight). This is almost half a century after the 1966 International Covenants on Human Rights (to which India is a party) state in Common Article 1 that “All peoples have the right of self-determination”. It gets murkier. Human rights are generally understood to be inalienable. But in this work, rights are possessed by people (p 61) but still granted by the Constitution (pp 5-6). What is more, “specifi c rights” need justification (p 89), but nevertheless constitute a precondition for “core moral rights” (p 59); some rights are “contingent” (p 93), while other rights are “weak” and “rendered even weaker”, not by competing rights, but by “moral considerations” (p 121). The layering of one set of rights, potentially overwritten by moral imperatives, around another set of core rights constitutes a practical necessity, according to Chandhoke, because “we live in a world where rights have become kings on the chessboard of political claim-making” (p 61). This sounds as if democratic constitutions are oversaturated with rights and someone had better do something about it. When Chandhoke goes as far as arguing that “an agent” (not an individual or a group) has the “responsibility of establishing that a specific right is an essential precondition for the realisation of the core right”, (p 63) she seems to suggest that situations exist where the exercise of a right is contingent on a satisfactory explanation as to what the right is invoked for in the first place. The problem is that having the bearer of a right explain why she is exercising it betrays an understanding of rights that no longer has any grounding in (post-colonially tuned) liberal theory on which, narrow enough, the entire argument of the book rests.

The way secession is delinked from the right to self-determination, which is routinely referred to in Chandhoke’s book as a mere “concept” or “principle”; the way secession is constructed as a political reality best to be avoided; the way we hear about “Balkan fury” (p 10), the “rhetoric of protest” suffused by the “language of jihad” (p 31) and the absence of any right to have “fi ne wine with every meal” (p 113); the way multiculturalism is left unexplored, despite being a core concept of writers such as Will Kymlicka, on whom Chandhoke draws; the way engagement with the term “ethno-cultural nationalism” is being had in the context of “ethnic cleansing and genocide in the former Yugoslavia” (p 202), but there is no mention of “ethno-nationalism”, a term which Sanjib Baruah chose as the title for a reader published, in 2010, by the same house as Chandhoke’s work, all this makes us wonder whether it is not so much legal contingencies but something more personal that prevents Chandhoke from stating clear benchmarks that need to be met for granting secession.

It is true that claiming rights is a murky process when the bearer is not clearly identifiable as is almost always the case with group rights. Chandhoke’s point that group claims can be distorted is valid and needs serious engagement – this from a variety of perspectives, not just liberal but also, for example, feminist or Marxist.9 However, some of her remarks betray an antipathy towards not so much the “principle” of secession but the people claiming it in support of their political agenda. “Secessionists who privilege their nation over others”, we learn, “focus on differences rather than communalities, on ruptures rather than on dialogue, and on suspicion rather than toleration” (p 154). In an earlier essay on secession, Chandhoke (2010: 61) writes that, truth be told, secessionists are not “revolutionaries who dream of a better future for all” as in fact “they really do not care what will happen to their former compatriots who will be left behind”. And this, she adds, is particularly true when “secession is demanded by the leaders of a religious group that is both close-minded and chauvinistic”.

june 2, 2012

We must suspect that the reference here is to Syed Ali Shah Geelani, the leader of the hardline faction of the Hurriyat Conference in J&K, to whom Chandhoke attributes the saying: “For Muslims to stay among Hindus is as difficult as it is for a fish to stay in a desert” (the “quote”, slightly changed, resurfaces in her book, p 209). But separatists in J&K come in all shades, even within the bracket of “religious leaders”.

Take the example of Moulvi Showkat Ahmed Shah, who, until his assassination in April 2011,10 headed one of two factions of the Jamiat Ahli Hadithi, a religious party, which represents the Wahabi stream of Islam. Shah was said to be close to Yasin Malik, the chairperson of Jammu and Kashmir Liberation Front, a political formation advocating an independent state of J&K. When Shah supported a boycott of the J&K state assembly elections in 2008, he was promptly booked under the Public Safety Act and detained for two and half months (no charges were ever brought against him).

Shortly before he was killed Shah drew the ire of separatists who criticised him for meeting the J&K governor over setting up an Islamic university in Kashmir, for denouncing the stone-pelting campaign in the Valley in the summer of 2010, which caused the security forces to kill some 115 civilians in retaliation (or self-defence), and for agreeing to talk with the panel of interlocutors appointed by the central government later that year. Moreover, Shah had been among the first to demand a fresh inquiry into the killing of separatist leaders Mirwaiz Farooq (1990), Qazi Nissar (1994) and Abdul Ghani Lone (2002), all of whom are believed to have been eliminated by supporters of their own movement. Shah arguably was a “secessionist”

available at

Altermedia-Bookshop Ecoshop

M G Road Thrissur 680 001 Kerala Ph: 2422974

vol xlviI no 22

EPW
Economic & Political Weekly

BOOK REVIEW

(even though he spoke of separatists only as “freedom-loving people”) but against the background of his actions and the price he paid for his convictions is it fair to conclude, as Chandhoke does, with a rather broad brush, that all secessionists want is “to opt out and establish a state of their own” (p 39)?

The ‘Empirical Referral’

So how does Chandhoke’s argument shape up when we apply it to Kashmir? Before we go into the heart of things, we probably need to ask the question as to whether J&K is a case study well chosen in the context of contested secessions. This is because separatists in J&K – or freedom fighters as they might call themselves – do not see themselves as secessionists. Their argument is that the princely state of J&K never effectively acceded to India, either because the Instrument of Accession was not signed, as Alastair Lamb, a historian and fellow of the Society of Antiquaries of London, argues, or because the accession is null and void. Chandhoke (pp 101-02) engages with the argument of the accession being “unfairly secured by the Government of India”, but her treatment of what is a central question, at least to a large segment of society in Kashmir, is brief and open to a number of challenges. For someone who claims to be concerned with the “complexities and possibilities of politics” and gives her book the colouring of a quest for truth and dialogue – using M K Gandhi as a reference (p 152) – Chandhoke seems to be little worried about losing a signifi cant part of her audience before she has even made her case.

For the readership that has not jumped ship up to this point, Chandhoke gives the hard-hitting critique of Kashmir policies devised by New Delhi. She acknow ledges that the Indian government “has violated its own constitutional obligations” vis-à-vis the people of J&K, and “the people of the Kashmir Valley have been subjected to discrimination because their civil liberties have been suspended and infringed” (p 105). Chandhoke flippantly talks about “a number of major human rights violations” that have been committed by the security forces in J&K (p 106). But the devil really is in the detail here. To give an example of a case that till today has remained unresolved: In May 2009, two young Kashmiri women were killed in the small town of Shopian, presumably after being sexually assaulted. The needle of suspicion remained numb, but the involvement of security forces seems clear from witness accounts and circumstantial evidence. The Independent Women’s Initiative for Justice (2009) concluded that Shopian “is a leaf out of history of human rights abuse and absolute impunity that men in uniform enjoy”. It is curious that in Chandhoke’s book a discussion of the theme of impunity is missing in its entirety.

Instead, the reader is informed that the Government of India has “defaulted on its obligations” to the people of J&K, but the “injustice wreaked on the people of Kashmir” could be reversed by (a) the “resumption of electoral democracy”,

  • (b) the “presence of an elected government in the state which is represented in the central government”, (c) the “possibility of a negotiated settlement”, and
  • (d) the “activities of civil society groups that bring the wrongdoing of the government to public attention” (pp 121-22). There is no space here to go into the merits of her argument. Suffice it to say that framing the debate often predetermines the outcome.
  • Finally, in a rhetorical climax, Chandhoke likens secession to euthanasia, a practice which, as she explains, runs counter to the “inalienable right to life” and can be looked at only as a very last resort, “when the patient is ‘terminally ill’ and the future holds nothing but pain and suffering” (pp 214-15). Chandhoke is too accomplished a writer for us to assume that the connection the reader will make between euthanasia and its use as a test run for the Holocaust in Nazi Germany is unintended. Her reference is another way of saying that secession is not on the cards for as long as there is still a spark of life in the state that hosts the secessionist group. Well, Kashmiris have heard it before and will have been prepared to hear it also from voices in academia: “You can’t always get what you want”. Had this been Chandhoke’s message it would surely have hurt many a sentiment in Kashmir, but it would be a conclusion open to debate. As it turns out, Chandhoke’s verdict is both simpler and harsher: “You can’t want what you want”.

    Patrick Hoenig (patrick.hoenig@yahoo. com) is visiting professor at the Academy of International Studies, Jamia Millia Islamia, New Delhi.

    Notes

    1 Perhaps in an effort to provide empirical grounding nevertheless, Chandhoke writes about fieldwork she says she has done with students from Kashmir University and one would have really liked to know more about the nature and design of that work as it is hard to imagine any research remotely connected to secession would have got sanction from an Indian university, certainly not any university situated in Kashmir.

    2 Article 39 of the Ethiopian constitution states that “every nation, nationality and people in Ethiopia” possesses an “unconditional right to self-determination, including the right to secession”. Ethiopia’s secession clause came into being following a long civil war resulting in the secession of Eritrea from Ethiopia in 1993, which Chandhoke refers to fleetingly in the context of a brief overview on the “History of [the right to] Self-Determination”, pp 165-67.

    3 In an attempt “to build into liberal theories of secession the experience of the postcolonial world” (p 86), Chandhoke vacillates between embracing and criticising liberalism, an ambiguity which weakens perhaps not so much any potential right of secession but her argument against it. In the context of postcolonialism, Chandhoke might have wanted to say a word on how for international law to continue to draw support from Global South quarters the power equations in international relations require a qualitative reconfi guration.

    4 Chandhoke makes reference to Section 6 of AFSPA, which grants army personnel indemnity for their actions and, in her view, “consolidated the suspension of basic civil liberties and rights” (p 105). However, she omits mention of Section 4 of the Act, which spells out what immunity is given for, namely, among others, the killing of any person on mere suspicion.

    5 Elsewhere, Chandhoke (2009) explores the question as to why civil society has not been able to stop communal violence when it broke out in Ahmedabad in 2002. Here, she convincingly argues that civil society organisations are not necessarily democratic and civil society is a “contested space” in which pro-democracy projects battle themselves with the state, on the one hand, and undemocratic organisations, on the other.

    6 Warisha Farasat and Fasihun Nisa Qadri (2010: 45) rightly point out that the issue of human rights is “closely linked” to the political solution of a conflict, “especially when there is a demand for self-determination”, because the “paradigm of human rights” attaches moral and legal authority to the process of “ascertaining the needs of victims”.

    7 The first two categories are widely acknowledged in international legal circles. However, adding respect for autonomy schemes to the list of potential grounds for secession makes sense. Where there is reason to believe that a

    EPW
    june 2, 2012 vol xlviI no 22

    BOOK REVIEW

    state has entered into a power-sharing agreement only to observe it in the breach or has given itself a federal structure only to arrogate all powers to the centre, the principle of territorial integrity does not seem worth protecting. The same holds true if the state, as a matter of policy, ignores legitimate claims to autonomy.

    8 The targeted killing by security forces of civilians, mostly dissidents, in so-called “kill-anddump” operations in Balochistan, has reportedly risen to more than 300 in 2011 alone.

    9 James Petras, for one, argues that there is a fundamental need for examining the classes which demand that the state respect autonomy and the “external benefactors of a shift from the national state to regional power elites”. As for the patriarchic slant that tends to creep into claim-making not just in south Asia, Chandhoke would probably be the first to agree that a gender-sensitive perspective is a much-needed addition to any discourse on the right to selfdetermination.

    10 In August 2011, Lashkar-e-Taiba went on record saying that the bomb killing Shah had been detonated by two of their men, who, however, had acted in their individual capacity and contrary to orders given to them by the Lashkar hierarchy.

    References

    Chandhoke, Neera (2003): The Conceits of Civil Society (New Delhi: Oxford University Press).

  • (2009): “Civil Society in Confl ict Cities”, EPW, 44 (44): 99-108.
  • (2010): “When Is Secession Justified? The Context of Kashmir”, EPW, 45 (46): 59-66.
  • Farasat, Warisha and Fasihun Nisa Qadri (2010): “Bringing Peace and Justice to Kashmir”, Eastern Quarterly, 6 (1+2): 39-48.

    Independent Women’s Initiative for Justice (2009): Shopian: Manufacturing a Suitable Story: A Case Watch (Shopian: distribution by authors).

    Kymlicka, Will and Wayne Norman (2000): “Citizenship in Culturally Diverse Societies: Issues, Contexts, Concepts” in Will Kymlicka and Wayne Norman (ed.), Citizenship in Diverse Societies, pp 1-44 (Oxford and New York: Oxford University Press).

    Noorani, A G (2011): Article 370: A Constitutional History of Jammu and Kashmir (New Delhi: Oxford University Press).

    Norman, Wayne (2006): Negotiating Nationalism: Nation-Building, Federalism, and Secession in the Multinational State (Oxford and New York: Oxford University Press).

    june 2, 2012 vol xlviI no 22

    EPW
    Economic & Political Weekly

    To read the full text Login

    Get instant access

    New 3 Month Subscription
    to Digital Archives at

    ₹826for India

    $50for overseas users

    Comments

    (-) Hide

    EPW looks forward to your comments. Please note that comments are moderated as per our comments policy. They may take some time to appear. A comment, if suitable, may be selected for publication in the Letters pages of EPW.

    Back to Top