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Self-Determination in the Indian Constitution: An Undeveloped Right

INTRODUCTION:

The right to self-determination is a basic norm recognized invariably all around the world, but do any of the statutes in India embody this principle in its provisions? The absence of a definite reference to self-determination in India is increasingly evident; the Kashmir conflict arose as a result of the people of Kashmir reaffirming their right to self-determination which was denied to them for decades. Currently, it is an imperative call to evaluate India’s position regarding self-determination.

LEGAL STATUS OF SELF-DETERMINATION:

The right to self-determination was established as a legal right under the realm of International law subsequent to the establishment of the U.N., i.e., after the Second World War. What was once a mere political assertion coming to be an imperative principle of action, acquiring international status as a significant human right. This right is emphasised as one of the purposes of the United Nations in the opening of the U.N. Charter. Article 1, common to the ICCPR and the ICESER asserts the same: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”[1][2] The term “peoples” in the above-stated definition has three plausible interpretations with respect to self-determination: (1) Right to sovereign equality, (2) Self-government and (3) Independence. In essence, the right to self-determination is the legal attribution of the power of people to contemplate their political status and form an independent stature; it allows people to exercise political independence and facilitates integration within a State since the State is obligated to promote, honor and respect it.

Individual human right violations often stem from a conflict over the exercise of right of self-determination. Thus, it can be inferred that self-determination is a pre-requisite to the enjoyment of human rights and are inevitably intertwined. Although considered a collective right belonging to a whole section of people, self-determination is a right of the individual belonging to the group as well. Typically, a group that has been victim to oppression and marginalization, say a class of indigenous people, would express a strong desire and determination to run their own governments and form a sovereign nation as a result. Although this functions as an important ancillary to international peace and security, States find difficulty in allowing complete political independence to these groups. In the Declaration on the Rights of Indigenous Peoples, adopted by the United Nations General Assembly, the right to self-determination is acknowledged as a right of indigenous peoples. The declaration provides for the individual and collective rights of indigenous peoples, including their rights to culture, identity, language, employment, health and education.

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RIGHT TO SELF-DETERMINATION AND THE INDIAN CONSTITUTION:

India’s stance with respect to Article 1 of the Covenants is that the right to self-determination is only applicable to peoples under foreign domination and excludes a section of people or persons from the nation; the Indian Constitution does not expressly provide for the right to self-determination and is silent in this regard. In a technical sense, this right is not extended to the territory of India.

In the matter of Re: The Berubari Union and Exchange of Enclaves Reference Under Article 143(1) of The Constitution of India,[3] the Supreme Court stated that the acquisition and cessation of territories is outside the bounds of the Constitution. The Berubari region in dispute was divided between India and Pakistan, however one of the main contentions raised was that even the Parliament does not have the power to cede Indian territory to a foreign State. Article 1(3)(c) of the Indian Constitution only provides for territories that may be acquired and that the provision does not provide for ceding any territory. However, in the said case, the Court held that Article 1 does not confer a power so as to acquire territories, rather the intent of the Article is to facilitate the integration of foreign territories.

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Thereby, when the power to acquire territory is not conferred by the Constitution, there is no justification why the authority to cede a portion of national territory should have been provided for in the provisions of the Constitution. The two powers are indispensable elements of sovereignty and can only be exercised by India as a sovereign State. Radically, the right to self-determination is not barred under the Constitution. It can still be claimed by the people, but ultimately it is up to the Union to decide whether or not it wants to sanction such a right. Demanding the right of self-determination would not warrant punishment under the prevailing criminal laws in India. When secession is recognized as a sovereign right, it is no crime when the people of a particular group claim the right of self-determination. However, if it is pursued with the component of violence, then the persons are liable to be punished under law.

CONCLUSION:

India maintains a strong foothold in matters of self-determination and strongly affirms that the right does not find place in the post-colonial era. Nevertheless, when a sovereign right can be exercised in this regard, demands asserting the right to self-determination should be heard and legitimized. Oppressed groups of people should be allowed to have their own identity and their collective right should be respected and upheld by the Union of India. If not, the bare minimum the State can do is to refrain from any forcible action that would deprive those peoples of the enjoyment of such a right.

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[1] UN General Assembly, International Covenant on Civil and Political Rights, December 19 1966, United Nations, Treaty Series, vol. 999, p.171, https://www.refworld.org/docid/3ae6b3aa0.html.

[2] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, December 16 1966, United Nations, Treaty Series, vol. 993, p.3, https://www.refworld.org/docid/3ae6b36c0.html.

[3] A.I.R. 1960 S.C. 845.


Cite this article (The Bluebook 20th ed.)-

Jhanavi M, Self-Determination in the Indian Constitution: An Undeveloped Right, Ex Gratia Law Journal, (December 23, 2020), https://exgratialawjournal.in/blawg/constitutional-law/self-determination-in-the-indian-constitution-an-undeveloped-right-by-jhanavi-m/.

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Author

Jhanavi M
Student - SASTRA Deemed to be University