Right to self-determination and the Indian constitution

Written By: Khushi Gupta

Introduction

I am a Hindu, a female, a resident of Madhya Pradesh, and an Indian. These are all my identities and they all determine who I am. The question is do I have a right to be all that I am? Do I have a right to claim a separate treatment because of my identity? Do I have the right to claim a separate territory composed of people who share my own identity? The most fundamental question is whether my self-determination is a legally protected claim or not? And if it is then how far can I approach this?

In 2017, some students of the Jawaharlal Nehru University found themselves in trouble when their self-determination protests at campus landed them under the charge of sedition as they created a demand for the disintegration of India and giving Kashmiris a separate space. Their self-determination was in relation to the region they were loyal to, and as a consequence, they faced allegations of disintegrating national identity and promoting notions of separatism.

Right to self-determination in India

The constitution of India addresses a bunch of rights for its citizens some under fundamental rights and some under other articles, but the right to self-determination has not been made mention in any constitutional article. The other legislations and statutes passed by the Indian parliament have also not cleared the ambiguity in this regard. The courts were left to interpret the existing rights to form a clear extent of this right, so they took to the international stand taken by the country to determine its view on the whole issue of self-determination.

India signed two important documents in terms of this right which clarified its position to some extent, one of these was the human rights covenant of which India became a party in the year 1979. The very first clarification that this covenant laid down was that self-determination as a right has been recognized by the government of India but only for foreign nationals and not for the people of India, the reason for this difference was that the country did not wish to sacrifice or even put to risk their sovereignty by granting recognition to this right within their own borders.

The debate that revolves around this partial recognition of self-determination has been that the right to self-determination was used by India and other countries party to this covenant such as France, Germany, Netherlands, and even Pakistan as a precaution and legal protection from the transgression to their own sovereignty in other words to make a reference to colonialism. Some people also claimed that the right to self-determination has been undermined and its recognition has not been adequate and true to its purpose.

International position of the right to self-determination

Self-determination has been a constant topic of debate in the past, especially before world war-II when a sundry of opinions floated regarding the formation of countries and the idea of sovereignty. After world war-II, the very first mention of self-determination came in Article 1(2) of the UN Charter from the United Nations Organization. This article talked about sovereignty and respect to maintain peace among the countries.

The second official recognition came under the UN General Assembly resolution of 1960 named “Declaration on Granting Independence to Colonial Countries.” This resolution proclaims the “necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations” this highlights the importance of self-determination with reference to the danger colonialism poses to it.

The third one was the Friendly Relations Declaration of 1970 adopted by the UN General Assembly, however, this text was sort of open-ended in a way it led to different perceptions and applications of the right to self-determination. India also had a different view, it claimed that this right was not applicable to the people of a sovereign state or a free country keeping in mind the unity and integrity of such countries.

Tracing judgments of Indian courts

Right to self-determination saw a positive development in India in the case of State Of Kerala And Another v. People’s Union For Civil Liberties, Kerala State Unit And Others 2009 SCC 8 46. In this case, the supreme court of India held that the tribal groups who are in minority and have been suffering as a consequence of systematic historical oppression and discrimination have a right to self-determination and to establish their cultural and social identities.

One thing that did not get clarity over was whether the government would go as far as to allow cessation of Indian territory for catalyzing the process of self-determination for the tribal communities?

The answer to this question lies in a bunch of cases, like the S.R.Bommai vs. Union of India which answers the question while highlighting the fundamentals of our country and the vision of our founding fathers, the judgment reads that article 1 calls India, “Bharat, a union of territories” and at the same time they designed a strong central government with a considerate amount of powers to the state governments in order to ensure that the center is able to fight of separatist forces that may target the unity and integrity of the nation.

Conclusion

We have seen the position of self-determination as a ‘right’ in the Indian context. In the absence of a clear definition, the courts and other experts from India have relied on international covenants and treaties, India is a part of. This has somewhat given us an idea that from the several opinions that float around and emphasize on different interpretations, India advocates the one where Self-determination is recognized for all the foreign nations but not for the people inside the territory of India and other sovereign states in order to respect and maintain the unity and integrity of such states.

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