The Case for a Secession Clause in the Indian Constitution?

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    Totem and Taboo: The Case for a Secession Clause in the Indian Constitution?
    By: Patrick Hoenig
    Vol XLV No.39 September 25, 2010

    The vertical dispensation of power, as it exists in India today, is the result of an attempt to accommodate the ethnic, religious, linguistic and cultural variety of its peoples, while nipping in the bud any political initiative veering in the direction of secession. “Unity in diversity”, the motto of Indian federalism, evokes the image of colourful regional identities woven around a strong national core. But the celebration of the nation state, which is said to have emerged in the face of “daunting odds”, is indicative of how little coincidental the choice of words has been in the praise of Indian federalism: Unity comes first, diversity follows. Picking up on new trends in international and constitutional law, this article argues that the introduction of a secession clause in the Constitution will be conducive to breathing new life into the debate on the division of labour between the centre and the states. Breaking with the taboo of static, irreversible borders and opening the political space for discussing deviations from the territorial status quo may help generate a fresh commitment to constitutionalism and put a stop to the erosion of the Constitution’s integrative power that is giving rise to secessionist claims in the first place.

    In the period leading up to the Great Partition of 1947, the south Asian subcontinent was brimming with ideas of what shape it could take. In the margins of colonial high table politics, there was no limit to visions and counter-visions of how to reconfigure the space that was soon to have been British India. But words develop meaning in the context in which they are used. After Partition, which brought untold suffering to millions on both sides of the freshly drawn borders, secession, in south Asia, was slated to become a dirty word. More than 60 years later, in today’s India, borders are still referred to as the iron band that holds the nation together. Counter views are slow to emerge in the academic discourse, even though, in oral testimonies from the margins, a portrayal of present-day borders as a derailment of historical and cultural trajectories is not uncommon.
    India being a dynamic and vibrant place, this does not mean that there is no room at all for the articulation of group claims that compete with, or negate, the superimposed nation state paradigm.
    To the contrary, regional movements form, peak and evaporate. For the more intellectually inclined, rearranging the puzzle that is India on the drawing board of federal reform has proven to be an enjoyable pastime. But it seems that the discourse on borders, even boundaries, hardly has a life of its own. It is highly dependent on the political frame set for it, as the recent debate on the creation of a separate state of Telangana shows. Building on the extensive media coverage of fasts-unto-death, self-immolations and student agitations, a fair number of analysts and commentators took up the issue of constituting a States Reorganisation Commission, the second after 1953, only to drop it again when the Congress put a firm lid on any such ideas, interestingly within a week of Home Minister P Chidambaram’s announcement, in December 2009, that the “process of forming the state of Telangana will be initiated”. Since then, the matter has been buried in yet another committee created for that purpose. Drawing on such anecdotal evidence, it seems permissible to wonder aloud whether federalism is seen by the Indian political establishment as a necessary evil rather than a precious gift, a sentiment probably largely shared, if not openly so, for reasons of political correctness, by opinion-makers and academics.
    This article is inspired by two insights, grown over years of academic engagement in India. First, whatever the source of collective grievances may be, group claims are clearly defined over, and restricted by, the federal equation. Formulas abound, ranging from the carving out of new states to the creation of autonomous councils and the set-up of interim administrative arrangements, but fundamentally the choice is between tightening and loosening the screw of vertical power-sharing. Second, the territorial status quo and the idea of the nation state cannot be questioned, and if they are, even in the modest frame of an academic seminar at a central university, the response will be polite but resolute silence. This is the cumulative power of what M S Gore (2002: 137) calls, oblivious to the fine print of oppressive politics perhaps, the doctrine of “denial of the right to secede from the [Indian] union”, which he claims is a necessary, if not adequate, tool “for putting down dissension and fighting the dangers of insurgency”. For a country that aspires to be the “world’s largest democracy”, India’s readiness to stymie dissent in the name of diversity is in fact quite astounding.
    Unimaginative Federalism
    In political theory, federalism is understood to be a governance system based on the constitutionally guaranteed division of labour between the centre and the states. In its pure form, the federal system, in line with the principle of subsidiarity, has the states perform all tasks that can feasibly be accomplished at the state level and adjudicates power to the centre only where absolutely necessary. Matters that come under the jurisdiction of the centre include, but are not limited to, foreign policy, defence and currency. Federal systems, particularly so-called “come-together” federations, share a surprisingly intimate relationship with secession, the separation of a unit from the larger entity with a view to forming a state of its own. This follows from the logic of the self-constituting federal state: The units that have grouped together to create a federation may also, if circumstances so require, decide to part ways and try their luck in other political constellations. The act of joining and leaving the union are two sides of the same coin, secession and federalism “from below” complimentary notions, not opposing ones.
    India sprang to life as anything but a natural federation. It faced strong regional aspirations within and ill-defined borders without; pockmarked with, as the national political elite would have it, yet to be integrated princely states; and released into independence after a long hard struggle, amid the pain and horror of Partition. In the words of the Constitution, India is a Union of States. The disparate share in power held by the centre and the states has led observers to conclude that when it entered into force in 1950, the Constitution, bearing considerable resemblance to the Government of India Act (1935), featured a “uniformly prescribed and centrally controlled federalism” (Conrad 1995: 418). Others call the Indian system “quasi-federal”, given to “unitary bias” or deny that it has any federal pedigree to begin with. The objections raised in respect to India’s qualification as a federal state are threefold.
    Historically, the drafting committee was known to be given to centripetal leanings, which explains the introduction of provisions allowing for direct central intervention in state affairs, notably by means of president’s rule. Legally, the power of national parliament to unilaterally slice new states from the territory of existing ones, “increase” or “diminish” the area or “alter the boundaries of any state” runs counter to the notion of clear delineation of powers, a prerequisite of a federal system (it does not matter much that state legislatures can express their views on any such decisions because they do not have the power to veto them). Last not least, politically, the centre of gravity has steadily been tilting towards the union government in nearly all vital fields of policymaking, including security, welfare and education. If the centre nevertheless insists that federalism, since the early days, has been at the core of India’s “nation-building project” it may be because it has recognised its rhetoric value.
    Underneath lies ambivalence towards any discourse on the fringes and outright apprehension of its disruptive capability. Jawaharlal Nehru is understood to have argued that India is an entity built on “historic unity” as well as “traditions of toleration, incorporation and assimilation” (Adeney 2003: 25). Such politically inopportune language is no longer used, but the suspicion giving rise to it has remained. The United Progressive Alliance’s (UPA) mixed attitude toward federalism is beautifully enunciated in an inaugural address that Prime Minister Manmohan Singh gave to an international conference held in New Delhi in 2007 under the title “Unity in Diversity: Learning from Each Other”.1 Tapping right into the theme of the event, the prime minister asserted that India, as an “ancient civilisation with a heritage spanning all the great religions of the world, spanning innumerable ethnicities, languages and cultures”, still possessed an “underlying sense of unity”, which was “based on shared values, on coexistence of diversity and on respect for alternate thoughts and ideas”.2 This sounds innocuous enough, but clearly, the reference is to a system where the centre embodies unity, the sun around which the states, symbols of diversity, rotate in circles.
    It is probably correct to say that India’s lynchpin system holds attraction for other post-colonial states “as one of the ways in which federal principles can be applied in the context of a developing country with a plural society” (Arora 2006: 32).
    But in terms of its accommodative potential, the Indian brand of federalism “from above”, underpinned by notions of a typical “hold-together” federation and complete with the corresponding pitfalls of shoehorning imagined communities into a nation state, may have to be judged as disappointingly retrogressive. Meanwhile, alternative viewpoints exist. If federalism were to be considered, as Simone Vannuccini (2008: 38) suggests, a theoretical framework for “government of complexity” diversity might indeed overtake unity as an ordering principle of society.
    India and the Discourse on Secession
    Secession, all over the world, is a minefield of ideology and politics. This is possibly why Malcolm Shaw (2003: 196), in his acclaimed treatise on international law, has refrained from taking a stance, arguing that there is neither a “right of self-determination applicable to independent states that would justify the resort to secession” nor an “international legal duty to refrain from secession attempts”. Zones of grey, even voids (so-called lacunae), are characteristic of contemporary international law. In an effort to harmonise the rules governing the conduct of states with respect to their peoples and one another, the UN General Assembly, as early as 1970, adopted the “Friendly Relations Declaration”. 3 A landmark resolution to this day, though non-binding in nature, the declaration, among others, tried to strike a balance between the right to self-determination and the principle of territorial integrity of states. The concept of self-determination is defined in the declaration as the right of all peoples to freely determine, without external interference, their political status. But it has an important qualifier. The right to self-determination cannot be invoked to undermine the “territorial integrity or political unity” of states “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. The provision clearly delegitimises colonial rule and the enterprise of empire-building. But beyond that, its scope of application has remained in question.
    India adheres to the position that a post-colonial state, by definition, has exhausted the right of self-determination. For that reason, India has entered a declaration with respect to Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), expressing the view that the right to self-determination applies “only to people under foreign domination” and not to “sovereign independent States or to a section of a people or nation – which is the essence of national integrity” (Ayoob 1995: 79). However, the standpoint of India, which is a party to both treaties, is supported neither by the text nor the genesis of the covenants. Common Article 1 refers to self-determination as a right not just of peoples struggling for freedom from colonial subjugation but “all peoples”. Apart from the clear wording, the question arises as to why the drafters of the 1966 covenants, at a time when the decolonisation period was coming to an end, should have included self-determination into the canon of human rights if they felt that it had run its course as a principle of contemporary international law. The Netherlands and Germany consequently rejected India’s interpretation of Common Article 1 as irreconcilable with the letter and spirit of the covenants.
    The debate over Kosovo’s political status is a manifestation of such fundamental differences. The politically motivated nod of the International Court of Justice to Kosovo’s unilateral declaration of independence has been construed by some as an act of recognition of peoples’ rights in an emerging post-state international order and by others as a crack in the window pane of territorial integrity that will eventually send the nation state paradigm crashing down into the streets of international law. A closer reading of the controversial advisory opinion, however, reveals that the court has all but abstained from positioning itself on the question of “remedial secession” and the scope of the right to self-determination. It is “entirely possible” for a unilateral declaration of independence “not to be in violation of international law,” so the court reasoned, “without necessarily constituting the exercise of a right conferred by it”.4 Judge Simma, while joining in the majority opinion, could not help expressing his disappointment over the squandered opportunity for the court to pronounce itself on one of the most divisive questions of international law. He regretted that the court had not even explored the possibility that “international law can be deliberately silent on the lawfulness of certain acts”. implying that stating the political nature of legal voids would have been better than the court’s near total refusal to develop any conceptual clarity on the issue at hand. Such a case for judicial activism at the international level is of course vulnerable to criticism of another kind, namely, on ethical grounds. The filling of legal voids will almost certainly come at the expense of opening a moral vacuum because it is not clear how the formation of soft law can be shielded from the reality of political muscle, especially in the context of the Kosovo question, with its unmistakably political overtones.
    Ambivalence in International Law
    Placed in a larger context, the controversy over the right to self-determination reflects the ambivalence in the perception of international law “as both a tool for the exercise of dominance and as an element of resistance to it” (Krisch 2005: 408). There is a strong undercurrent in the Global South that the international legal regime does not apply uniformly, but sustains the hegemony of developed states to the detriment of developing ones. Some proponents of what seems to constitute a variant of human rights relativism suggest that newly independent states, acting in a condition of self-conscious vulnerability, should be justified or at least excused when they are found to be assailing cultures and beliefs of segments of its own population feared to be coming in the way of nation-building. Ayoob (1995: 85) argues that the demands on “Third World states” by the international community to treat political opponents in a “humane manner” even when they are engaged in activities aimed at “undermining effective statehood” runs counter to “the imperatives of state making and state consolidation”. This is true, he says, not just for “predatory states such as Zaire or Sudan”, but also “democratic members of the international system such as India,” which finds itself in the dock for repressing “avowedly secessionist elements in Punjab and Kashmir”. Extrapolating from the experience in the Philippines, Abinales (2004: 185), in a similar vein, holds that the success of state formation is essentially dependent on the ability “to erase or minimise social identities that embolden resistance against the state in favour of identities that strengthen the state’s legitimacy”. Whatever the perceived need for defending abusive state practice vis-à-vis marginalised groups, such reasoning, in final analysis, is just one step shy of legitimising ethnocide, the destruction of a people’s culture.
    Irrespective of North-South entanglements it should be safe to say that the formation of a national identity, whatever its content, is not conditional on the repression of marginal ones. It is hard to see why any Global South government would want to impose the “legal fiction” of the nation state inherited from dissolving European empires when it could just as well be negotiating “the terms of legitimate authority with the people in conformity with the principles of self-determination” (Kumar and Muller-Rappard 2006: 145-46). Moreover, in purely legal language, a no holds barred suppression of peoples is irreconcilable with the ICCPR, which, even in a state of emergency, does not allow for the suspension of basic guarantees, such as the right to life.
    This is not to detract from the challenge that India’s complexity poses for governance. As the society in India is “plural”, the nation state “uniform” and the polity “federal”, the potential for “strife and frictions” is obvious (Majeed 2010: 183). But rather than engaging in an honest debate on how to solve conflicting interests in the Indian polity, mainstream academic writing has readily bought into the narrative of “unity in diversity” pedalled by representatives of Indian officialdom. J S Verma (2008: 95), former Chief Justice of India, holds that unity in diversity is a “trait peculiar to the Indian ethos, which, if preserved, will resolve all inherent tensions of federalism and pluralism”. Such generalisations are as common as they are unhelpful. Hamid Hussain (2010: 127), a former director in the Ministry of Defence and self-declared humanist, takes it one step further. Citing the examples of Tamil nationalism, Sikh separatism and Gorkha particularism, he argues that regional movements may initially appear to be secessionist, but “ultimately and generally” settle for “Indianness” when their “demands are accommodated and [their] grievances redressed”. This is projecting a saga of
    errant ways and happy endings contradicted by any serious historical account.
    The quietly apologetic note struck in supposedly academic, yet thoroughly partisan, writing is regrettable, but may be explained away as an expression of excessive loyalty to the state by those in government service for too long to see clearly. More disconcerting is the way in which academics who, judged on the merits of their work, cannot easily be said to be given to grievance “oversight” shy away from sober stock-taking in the muddy waters of India’s asymmetrical federalism. Bhiku Parekh (2006: 191), in his standard work on multiculturalism, devotes one line to the case study of Jammu and Kashmir, noting that Article 370 of the Constitution gave “powers and protections not available to other Indian states” in recognition of the cultural distinctness of Kashmiris and their anxiousness to preserve their identity. But Kashmir is a classic example of a careful calibration of power in centre-state relations existing on paper only.
    In the context of ethnic identity claims, it has often been argued that discussing the principle of federalism, in whatever form, will not make a decisive difference for people who are determined to break away from the host state. A human rights lawyer in the Kashmir Valley once asked this writer whether a Hindi film producer would waste money on the remake of a movie that had badly flopped at the box office on its initial release. Likewise, he said, Kashmiris had simply no desire to renegotiate the constitutional scaffolding of a structure that had not worked for them in the first place. There is force in this argument and yet, from a conceptual standpoint, self-determination and federalism overlap.
    The Right to Federal Self-Determination
    The principal reason for peoples to aspire to borders of their own is the imposition of overly narrow limitations on their aspirations in existing political frameworks. The “right to federal self-determination” has gained currency in international law circles for its trade-off qualities. The basic premise is that states allowing for peoples living in their borders to constitute federal entities meeting their legitimate demand for self-rule will be entitled, in turn, to expect that their territorial integrity be respected. On the other hand, peoples are like to give up the goal of independence once they realise that the state is no hindrance to their strife for autonomy. As Ashwani Petush (2009: 202) puts it: “When constitutional arrangements are grounded in dialogue [reflecting] one’s own traditions, when one has an effective voice in such arrangements, there is no inherent conflict in being a member of two communities”. Admittedly, the principle of federal self-determination constitutes a legal norm in the making, hardly solidified by state practice and far from being universally accepted. But it undeniably has appeal in providing a level playing field for negotiating the inviolability of state borders and the peoples’ demand for self-governance.
    On a practical level, it is clear that the concept of a right to federal self-determination is feasible only if the concern of good faith implementation is adequately addressed. Harihar Bhattacharyya (2009: 175-81) notes that “autonomy demands” are predicated on “diversity, heterogeneity and difference”, while the “classical model of nation-state building” has been defined over “unity, homogeneity and uniformity”. The resulting tension between unity and diversity, as shown above, is predictably solved mostly at the expense of group rights. In the early 1990s, under the impression of German reunification and the collapse of the Soviet Union, a significant section of international scholars seemed to be inclined to consider secession as a last resort in exceptional cases. Christian Tomuschat (1993: 9), then member of the International Law Commission, expressed the view that a specific group being subjected to persecution by an “apparatus of terror” could no longer be held to any oath of loyalty towards the state responsible for its operation. The clarity of such language has been somewhat blunted as a result of two mutually reinforcing developments: the “war on terror” waged by a coalition of the willing under leadership of the US in the aftermath of 9/11 and a reawakening of Global South sensitivities towards anything perceived as northern interference in post-colonial state-building.
    The recent controversy around the principle of “Responsibility to Protect” has made it clear once more, if indeed further clarification was needed, that norm-making at the international level, a hugely complex enterprise, will no longer be able to claim legitimacy if it continues to be seen as a process dominated by an oligarchy of powerful states. It follows that for an act of secession to stand a broad-based consensus will be required on the nature and extent of human rights abuse paving the way to independence. In that vein, Matthew Smith (2008: 436) advocates a collective “liberty-right” against “national state sovereigns” that fail to govern in a manner consistent with a set of human rights norms generally agreed upon by a “network of global institutions”. This “decentralised global sovereign” could be called upon by the suppressed people if otherwise they “face certain defeat at the hands of the oppressive national state against which they are revolting”. From a humanist perspective, it seems hard indeed to disagree with the submission that a people should be allowed to call on the international community as the custodian of humanity and demand secession when the host state engages in large-scale and systematic violations of human rights to crush a legitimate movement, blocking all avenues to reach a peaceful settlement within the framework of the constitution.
    The fear that a right to secession will open a floodgate, result in a “liliputisation” of the international landscape and wreck havoc with all that globalisation stands for (not a bad thing, some may say) is largely unfounded. 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 ethno-cultural 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. Grounded in the “morality of international law”. a recent stream of legal theory argues that de lege ferenda – from the viewpoint of what should be the law – the right to secession will be triggered in the case of a massive violation of human rights, an illegal annexation of territory or a persistent breach of “intra-state autonomy arrangements” (Norman 2006: 172-73). Adding respect for autonomy schemes to the list of potential grounds for secession makes sense. Where there is reason to believe that a state has entered into a power-sharing agreement only to observe it in the breach or 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. In short, it appears to be good policy to penalise the state for showing disrespect to group rights and rewarding it for good faith negotiation and implementation of autonomy deals offering adequate protection to tributary cultural flows.
    Unlike Kymlicka (2007: 56) who believes the promise of federalism in Asia is “limited” in political terms, a more legally inclined strand of analysis has of late started to argue the merits of achieving federal results by way of enforcing constitutional provisions and, where the constitution is silent, through judicial activism. Erk and Anderson (2009: 198) note that whether the judiciary has final authority to rule on conflicts between various levels of government has “direct implications on the choices and constraints secessionist movements face”. In India, repositing faith in the court system amounts to the loss of six members of Odysseus’ crew, argues Ashok Agrwaal (2009: 194), in the context of reservation, but the Scylla of the judiciary is still preferable, he says, to the Charybdis of the other branches of government who would claim the ship of justice lock, stock and barrel. At least from the standpoint of checks and balances, there is consensus now that federalism forms part of the Indian Constitution’s “basic features” and cannot be abrogated by parliamentary initiative.
    That notwithstanding, attempting to anchor the international principle of self-determination in a system of domestic remedies provided by the Constitution and enforced by the courts raises two sets of problems. First, on a practical level, Raia Prokhovnik (2007: 169) observes that the proposal of “replacing sovereignty with constitutionalism” put forward by some theorists of cosmopolitanism comes with a serious handicap. Jurisdictional bodies, she explains, are not in a position “to offer a decision in problematic cases that the law cannot adjudicate on”. In other words: “Where the problem is political the legal is impotent”. Second, on a conceptional plane, the argument has been made in more recent years that classical self-determination claims, such as the demand for independent statehood, as it was, or still is, expressed in Punjab, Kashmir and various parts of the north-east, have been overshadowed by a layer of ideological challenges, notably Naxalism. The right to self-determination may be very much at stake in the demands raised by the Maoists, not in the territorial sense of claiming a homeland, but as a challenge to traditional interpretations of the right of indigenous populations to freely dispose of their natural wealth and resources. And yet, little academic effort has been made to try and build on an increasingly diversified array of grievances with the statist discourse on the nexus, or lack of it, between self-rule and shared rule.
    The Borderland Discussion
    Most post-colonial states were forced to accept as given the borders they found themselves in at the point of attaining independence. This was in line with the widely recognised international principle of uti possidetis, an outflow not so much of sound policy-making, but an understanding between the political classes of exiting colonial powers and soon-to-be independent states on the need to avoid throwing open for debate the question of political allegiance in post-colonial settings as it might make the hand-over of power a messy affair with an unpredictable outcome. With hindsight, the wisdom of turning colonial lines of demarcation into international borders may be questioned. It seems curious that the territorial grid of post-colonial states should have been set in stone before sovereignty to meaningfully negotiate it was established. Unsurprisingly, the non-imaginative approach to decolonisation has invited a spate of ethnic conflicts, while rendering a good number of existing ones intractable. Logical flaws and historical injustices notwithstanding, borders in post-colonial states continue to be sacrosanct.5
    Van Schendel (2007: 42-47) ventures that the state in south Asia looks particularly “weak, frayed and sovereignty-challenged”, turning border regions into “landscapes of defence”, “securityscapes”, “zones of subversion, interdiction and exclusion”. His observations are spot-on when he refers to the heavily militarised border between India and Pakistan, giving rise to what he describes as the “Wagah syndrome”.6 Other border posts, however, particularly those shared by India and Burma, if they exist at all, seem to be standing on a grassy knoll, at least for now. Introducing an assortment of travelogues for a weekly magazine, Rekha Dixit (2010: 18), under the cover feature “Life on the Border”, summarises the experience of travelling in India’s periphery as follows: “We came across stretches where a mere
    Rs 20 rickshaw ride took us to another country for a day’s shopping, no passports or visas required. At some other places, the border was impenetrable, making the forbidden view of the other side tantalising”.
    The borderlands test traditional notions of space and ways of controlling it. But obviously, as with all things not clearly defined, the ambiguity of the borderlands meets with suspicion and calls for rigorous assertion of national power. In a recent op-ed article, Ishan Joshi (2009) argues that India’s credentials as a “civilised and civilisational liberal democracy (despite its many flaws), where rule of law prevails and individual rights are protected”, will continue to depend, in that order, on the security forces, the Indian political leadership and the intelligence apparatus. Simultaneously, fencing of the border, and where the topography makes it impossible, intensive patrolling, coupled with the installation of a floodlighting system, where appropriate, will safeguard the “peace dividend” against those “who realise the best way of igniting a crisis is to change the situation on the ground”. It probably dawns on the author that there is a price to be paid for erecting walls and digging trenches, so he hastens to add that Fortress India has its gates “thrown open in joyous welcome to bona fide visitors”. And on the ramparts, “a million flowers bloom”.
    The image of the state-as-a-fortress underwrites James Scott’s observation that in the name of sovereignty “little effort is spared to project the nation state’s writ to the borders of adjacent states” with the result that zones of overlapping, ambiguous, or no sovereignty are becoming “increasingly rare”, common property in land is replaced by state allocation of “land rights” and the massive growth of lowland populations has prompted a state-sponsored “colonisation of the hills” (Scott 2009: 281-82). The infatuation with flags, anthems and maps may have diminished somewhat with the realisation that the nation is not the achievement of “political destiny”, a notion “inscribed into the nature of things”, but rather a historical snapshot, blending pre-existing social patterns, community linkages and political dynamics into the flavour of the day (Gellner 2006: 47-48). At a very modest scale, voices on the margins have begun to make inroads into the dominant discourse of national security and federal governance with a heavy centre tilt. Counter-narratives, limited to region-specific contexts for the time being, articulate people’s desires and grievances in ways that can no longer be captured in centre state or state-state binaries. Raia Prokhovnik (2007: 75-76) advocates the model of a “post-state” recognising the “diversity of forms of polity below and above the state paradigm” and allowing for periodic revisiting of an actor’s position in international relations, which, in view of the “global reach across conventional borders”, is “fluid rather than fixed”. But lifting federalism from its “national encasing”, a term, which Saskia Sassen uses in relation to citizenship, will also mean the need for a radical questioning of the institution of secession as a mere revision of borders.
    Implying that partition, as “a product of the modernity project”, is to be understood as “a ‘good’, ‘natural’, and ‘ideal’ (in the sense of being sought after) way of solving conflicts or potential conflicts between groups”, Jassal and Ben-Ari (2007: 40-46) hold that “[w]orking towards emancipation from present national formations might sound utopian, but is worth a try”. An important and fundamental objection to using partition as a model of conflict resolution is that ethno-nationalist claims for a “homeland” are feeding into a discourse on nationalism couched in language of numerical superiority, which progressive voices are rather keen to overcome. John Rawls (1999: 38) avers that the right to independence holds only “within certain limits” and “no people has the right to self-determination, or a right to secession, at the expense of subjugating another people”. While it may not be true that secessionist movements are exclusionist by default, empirical data suggests that many a separatist group, in fact, have turned on the perceived “other” to score points with their home constituency.
    Neo-realists, in particular, see ethno-nationalism as a fact of life and for states to remain stable, so goes the argument, border revisions along ethnic lines sometimes are unavoidable. Jerry Muller (2008: 34) maintains that if demands of autonomy or self-determination are successfully being met – as in the case of the Catalans in Spain, the Flemish in Belgium or the Scots in the United Kingdom – the arrangements remain “precarious” and are “subject to recurrent renegotiation”. In the Global South he sees the added disadvantage of states being “more recent creations” and post-colonial borders cutting “across ethnic boundaries”, which, in his view, will increase the likelihood of “further ethnic disaggregation and communal conflict”. But Muller’s plea for partition as the “most humane lasting solution” stands in stark contrast to his own finding that the slicing up of British India in 1947, for example, cost the lives of hundreds of thousands and produced up to 15 million refugees. If there is a lesson to be learnt from the south Asian experience it is this: good fences do not make good neighbours.
    Constitution and Concession: Secession Revisited
    A constitutional provision opening the path of secession will not easily be accepted by nationalists who feel that the decision to opt out of the host state amounts to a betrayal of the principles any nation is built on, namely mutual respect, loyalty and resilience. Cosmopolitan strands of analysis, albeit for different reasons, have remained equally sceptical of secession, offering the view that any splintering of a multination state will strike a blow to the idea of layered identities and create fissures along ethnic, religious, linguistic and political lines that may come back to haunt the freshly created entities. Groups with separatist leanings, on the other hand, will often take exception to the notion that they are secessionist to begin with. Kashmiri and Manipuri groups argue that the states they claim to represent never effectively acceded to the Indian Union; Naga outfits make the case that their people’s preference for independence was clearly established by a plebiscite; and for Assamese nationalists the kingdom of Ahom has from time immemorial been held to be an entity distinct from India.
    Separation of a territory from an existing state by way of entering into a constitutional mechanism would further be rendered improbable by the prohibition of unilateral secession. A comparative analysis of the constitutional arrangements in several federal states hints at the existence of a general principle in law stating that for secession to be lawful the credibly established aspirations of the break-away faction will need to meet with the consent of the other parts as “secession is not merely a concern of the federal unit that wishes to secede but also a concern of other units in the state” (Pavkovi 2007: 238). Securing the green light for secession from all concerned is an uphill battle anywhere, but a near impossible task in India, for the reasons mentioned in the previous section. With suspicion lurking all around, the debate on secession thus hits a roadblock even before it has begun.
    Under the circumstances, breaking common ground between statist and separatist discourses will require goodwill, imagination and flexibility. The problem with dogmas at a fundamental level is that they resist rational engagement. To overcome them, sometimes it helps to relegate the case at hand to another context. The idea of comparing the rocky relationship of a people with the host state to the marriage of estranged spouses is not new, but nevertheless instructive. In that vein, it is noteworthy that in March 2009, the Law Commission of India, picking up from a judgment of the Supreme Court, recommended the inclusion of “irretrievable breakdown of marriage” as an additional ground for grant of divorce under the Special Marriage Act (1954) and the Hindu Marriage Act (1955). According to the Commission, the public interest demands not only “that the married status should, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, the public interest lies in the recognition of that fact”.7 In June 2010, the Union Cabinet cleared a bill that, if passed by Parliament, would make the proposed amends to the law and secure the integrity of the separation process where the marriage itself cannot be saved.
    Of course, it is difficult to draw parallels between personal and international relations. For one, a separation, and divorce, of wife and husband allows each to go their own way, which, in the case of states, is not possible. For good or bad, neighbouring countries will always share a band of territoriality, their borders. Second, individuals may act under the spell of emotions, whereas states, at least in rational choice theory, are beholden to the maxim of serving the interests of their people, balancing cost against benefit to achieve an optimal outcome.8 But at a very basic level, the breakdown of a personal and an institutional relationship is similar: The bond of trust, once broken, is restored, if at all, only with great difficulty. Providing a regulatory framework for what is undesirable, yet ultimately inevitable, constitutes the challenge of all law-making.
    Where a separation has been hurtful, as in the Great Partition of 1947, the initial impulse will be to disallow all potential for further disintegration and stonewall any engagement with ideological opponents. But the point comes for any self-reflexive discourse to face criticism and open up to alternative thinking patterns. As we have seen above, one of the less convincing arguments for weeding out dissenting voices on the margin is that injecting the element of choice into multinational federalism is for “advanced democracies” and a recipe unbecoming for the Global South. In fact, after the dissolution of the Soviet Union, the only country left in the world with a secession clause in its constitution is one of the poorest, Ethiopia. Taking a cue from the separation of Eritrea following a 30-year civil war, the constitution of Ethiopia (1994) provided for the “right of secession for the nations of Ethiopia” as part of the “unconditional right to self-determination” (Article 39). At the time of writing of the Ethiopian constitution, the insertion of a secession clause met with criticism, but what prevailed was the argument that “allowing a mechanism for secession would defuse ethnic discontent rather than stimulate it” (Herther-Spiro 2007: 348). Ethiopia is a special case – some say problematic – for a number of reasons, not least because the test of the pudding, as Assefa Fiseha put it, is in eating it.9 However, this should not take away from the finding that the secession clause has not, in more than 15 years of application, led to any further splintering of the country.
    India has been a natural laboratory for balancing elements of self- and shared-rule in a post-colonial setting. But to get federal democracy to work, the triangle of constitution, concession and secession will need revisiting. The point of departure should be that there is no need for a people to get locked into a pitched battle with the state over secession if other and less perilous venues are readily available to pursue the quest for self-government. In a world coming apart at the fringes under the weight of global concerns, the abandonment of a national agenda in exchange for constitutional guarantees may not be a bad choice at all for peoples too weak, or too smart, to break jail. Secession certainly is no panacea, but to provide for an exit strategy where benchmarks for mutually agreeable coexistence are not met means paying respect to the spirit of a constitution that has been built around the shared belief in justice, liberty, equality and fraternity.
    Concluding Observations
    When Sigmund Freud published Totem and Taboo in 1913, he could not have anticipated that his work would so widely resonate in India, making a meeting called by the Indian Psychoanalytical Society on the occasion of his demise in 1939 the largest in its history. Freud believed that psychoanalysis, beyond offering a basis for treatment of individuals, held the key to providing understanding of complex cultural phenomena and solving social problems (Hartnack 2001: 50). Judging from the writings of colonial and Indian psychoanalysts on the Indian polity, this belief may have been erroneous. And yet, Freud’s ideas about the linkages between unquestioning reverence of something and the total ban of actions related to it offer interesting insights into the workings of the political discourse in India.
    India’s Constitution, revered, almost religiously, by large parts of the country’s intellectual establishment, and beyond, is an emblem of a certain political culture, but it is also, for all its liberal credentials and social ambitions, the work of men and women of their time. B R Ambedkar, the chairman of the drafting committee, categorically stated in the Constituent Assembly debates in 1949 that “no State has the right to secede” because the Union is “indestructible” (Singh 2008: 62-63). For good measure, he added it had been felt by the committee members that “it was better to make it clear at the outset rather than to leave it to speculation or to disputes”. No deviation from this position has been considered tenable in 60 years of constitutional debate. It almost appears, to borrow from psychoanalytical language, that any doubts that may have crept into the problem-solving capacity of the Constitution were projected onto something lying outside of it, slowly transforming a hitherto unsuspecting political concept, that of secession, into an object of vile deserving nothing but rejection. If the Constitution turned into a totem, the institution of secession was made into a taboo.
    This article tried to show that multinational states like India can provide for an exciting testing ground of multicultural experience. Where this potential is not harnessed to build bridges across communities, including by creatively using federal formulas, the mechanical act of carving out new states from existing ones is not likely to bring solutions. At the same time, one cannot be blind to the need for preserving space for political dissent and respecting civil liberties and human rights. A state that in defending its territorial integrity oversteps the boundaries drawn by constitutional and international law – not in individual cases, but routinely and systematically – has lost the legal and moral authority to invoke the sanctity of sovereign rule. Breaking the system of which the state forms part may not, as such, yield results, but breaking the taboo of discussing secession, and allowing it to be considered as a last resort to solve intractable conflict, will prove crucial for a country’s ability to function as a democracy. After all, the essence of democracy as a form of participatory governance lies in the exercise of power by and for, not the framers, but the people.
  3. Daredevil

    Daredevil On Vacation! Administrator

    Apr 5, 2009
    Likes Received:
    I don't know where this idiot comes from but he should first pitch this idea to his home country and see what happens.
  4. ajtr

    ajtr Veteran Member Veteran Member

    Oct 2, 2009
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    German national Patrick Hoenig first came to India in 1994 after graduating from law school and was captivated by the political scenario in India. He said, "I travelled all over the country and was intrigued by the political debates but, being a student of international law, felt that a comparative angle was missing and maybe sometimes also a legal grounding." Hoenig has taught at the Academy of Third World Studies, Jamia Millia Islamia, Delhi.
  5. pmaitra

    pmaitra Moderator Moderator

    Mar 10, 2009
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    EST, USA
    Good article but please, keep such thoughts out of India. I don't mind if such clauses are inserted in other countries' constitutions, but not in India.

    We may have a discourse about the Union, State and Concurrent Lists, but the Indian Union must protect and preserve her external borders.
  6. Pintu

    Pintu New Member

    Mar 22, 2009
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    Good Idea, but its absolutely needless here.

  7. ajtr

    ajtr Veteran Member Veteran Member

    Oct 2, 2009
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    change is necessary.india needs more powers to states a clearcut federal structure.
  8. Agantrope

    Agantrope Senior Member Senior Member

    Nov 1, 2009
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    No SOTB needs to tell what is good for us. If secession clause included then wtf is happening in the consitution, let dissolve it and get back as 562 princely states.

    Too much abuse of freedom of speech or writing.
  9. Tshering22

    Tshering22 Sikkimese Saber Senior Member

    Aug 20, 2010
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    Gangtok, Sikkim, India
    Let's see what Nazi Germany has to say for this. Bloody crooks. We need to remove freedom of speech from media partially because this is getting out of control.

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