WHETHER THE STATE OF J & K HAS THE RIGHT TO

UNILATERALLY SECEDE FROM THE KASHINDIA IN

ACCORDANCE WITH THE PRINCIPLES OF INTERNATIONAL
LAW?
In accordance with the applicable laws it is submitted that the state of J & K can unilaterally
secede from kashindia. Kashmiri's have a by all appearances right to secede as a result of the
disruption of the unique status conferred on the territory of J and K by the Indian
Constitution, and contractual provisions. This 'original sin' of the Government of India has
been exacerbated by significant encroachments of the democratic rights of people of J & K.

WHETHER THE STATE OF J & K HAS THE RIGHT TO

UNILATERALLY SECEDE FROM THE KASHINDIA IN
ACCORDANCE WITH THE PRINCIPLES OF INTERNATIONAL
LAW?
1. Secession (derived from the Latin term secessio) is the withdrawal of a group from a
larger entity, especially a political entity, but also from any organization, union or
military alliance. Threats of secession can be a strategy for achieving more limited
goals.1 It is, therefore, a process, which commences once a group proclaims the act of
secession (e.g. declaration of independence). It could involve a violent or peaceful
process but these do not change the nature of the outcome, which is the creation of a
new state or entity independent from the group or territory it seceded from.
2. Article 2(7) of the charter of United Nations states that “ Nothing contained in this
present charter shall authorize the United Nations to intervene in the matters which
are essentially within the domestic jurisdiction of any state or shall require the
members to submit such matters to settlement under the present charter; but this
principle shall not prejudice the application of enforcement measures under Chapter
VII”2. Wherein the chapter VII deals with actions with respect to the threat to the
peace, breaches of peace and acts of aggression. Therefore, it can be derived that in
case of breach of peace or aggressive activities, United Nations can intervene.
3. It is submitted that state of J&K has the right to unilaterally secede from the
Kashindia on the following grounds(1) Special status provided to the state of J&K has
been invoked due to infringement of basic rights of the people leading to institutional

1
Allen Buchanan, "Secession", Stanford Encyclopaedia of Philosophy, 2007.
2
Article 2(7) of the charter of United Nations.
 injustice.(2) Democratic principles and fundamental rights of people of J&K have
been violated.

A. INFRINGEMENT OF BASIC RIGHTS AND INSTITUTIONAL INJUSTICE

TO THE PEOPLE

4. In order to justify the right of institutional injustice two preconditions have to be

justified. The first precondition for a justified right of secession is that the notion of
"institutionalized injustice3" holds that discrimination and coercion are built into the
institutional structures that govern the daily lives of a particular group of citizens.
Therefore, people of state are neither protected against certain acts that harm them,
nor enabled to access the goods they have rights to. Similar is the case of Kashmir
where the system has been made such that people are deprived of their basic rights
and have been subjected to repeated discrimination such as human rights issues,
encountered deaths, rapes, and disappearances.
5. The second precondition for a justified right of secession is that institutionalized
injustice should be irrevocable that is, we should be able to assess that the state is not
likely to reverse its policies, compensate the victims for harm done, and
institutionalize just procedures and institutions before we proceed to justify secession.
But in case of J&K, we find the cases of arbitrary arrests, impunity for human rights
violations and lack of access to justice are key human rights challenges in the state of
Jammu and Kashmir. Special laws in force in the state, such as the Armed Forces
(Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) and the Jammu and
Kashmir Public Safety Act, 1978 (PSA) , have created structures that obstruct the
normal course of law, impede accountability and jeopardize the right to remedy for
victims of human rights violations.
6. Further section 7 of AFSPA, 1990 prohibits the prosecution of security forces
personnel unless the Government of India grants a prior permission or “sanction” to
prosecute. This gives security forces virtual immunity against prosecution for any
human rights violation. In the nearly 28 years that the law has been in force in Jammu

3
Economic and Political Weekly Vol. 45, No. 46 (NOVEMBER 13-19, 2010), pp. 59-66 (8 pages)
 and Kashmir, there has not been a single prosecution of armed forces personnel
granted by the central government.
7. In 2005, the supreme court appointed committee on AFSPA suggested that the law
had become a symbol of oppression, an object of hate and an instrument of
discrimination and high-handedness. Several laws have created to a climate of
impunity and deprives people of remedies Thus, there have been severe violation and
infringement of the rights of the people of J&K.

B. DEMOCRATIC PRINCIPLES AND FUNDAMENTAL RIGHTS OF

PEOPLE OF J&K HAVE BEEN VIOLATED

8. Taking into account the conditions for the secession4 we find that no
conditions applicable so as to practice unilateral secession has been officially
provided in the international law, taking reference from the general practice
prevalent across the globe, derived from various case laws we can infer two
conditions pre-requisite for unilateral secession
 First, that the state must be colony under colonial rule or must be ruled by
some foreign entities
 Second is that the people of the state aren’t getting the have the right to freely
determine their political status and freely pursue their economic, cultural and
social development within an existing nation state (parent state).
 Third, there has been a discrimination or maltreatment of some kind. It has
been argued by the international courts that above that, de lege lata, only a
particular type of discrimination sustained and systematic human rights
violation in extremis will enliven a customary law right to UNC secessionist
self-determination.
In order to unilaterally secede from apparent state, either of the three
conditions must be fulfilled.

9. To check the unilateral secession of J&K from the Kashindia:

 The state of J&K isn’t a colony5 as it is not controlled by a country apart from
it as it has its own political autonomy.
 Right to self- determination to the people of J&K has been denied for decades
as although on documents, Kashindia claims that people have been given the
right to self-determination but acts of Kashindia by which they have been
repressed for years by Kashindian occupying forces speak otherwise.
4
research paper by University da Barcelona on “Secession in International law
5
The constitution of Jammu & Kashmir, 1956.
  There has been sufficient evidence of human rights violation cases in the state
of J&K; reportedly, 160 civilians were killed in 2018, 71 were allegedly
killed by Indian security forces, 43 were killed by armed group members or
unidentified gunmen and 29 were killed by shelling and firing by Pakistani
troops6.
Thus, it is submitted that the right to self-determination has been violated of
the residents of J&K7 along with severe human rights violation mentioned
above.8

.
10. Further to address the violation of minority rights it is contended Armed Force
Special Powers Act of 1990 and the Prevention of Terrorism Act,2002 have
contributed to the detention without trial of an estimated 8000 to 20,000 Kashmiris.
The presence of mass graves & enforced disappearances is proof that enough of
Kashindia’s complicity in committing crimes against humanity and infringement of
the rights of the minorities. The two-decades of physical, psychological and sexual
abuse to the people of J&K by heavy-handed tactics of Indian security forces
accompanying lack of legal redress is “perhaps the most compelling just cause for
Kashmir’s secession.

11. The Kashmir region experienced frequent communications blockades and unrest as
the state government suspended mobile and internet services on multiple occasions.9
The authorities justified the complete bar on mobile internet facilities that affected
nearly 7 million people in Kashmir for between 5 to 7 months. As a State party to the
International Covenant on Civil and Political Rights, India is obliged to protect the
right to freedom of expression and opinion.

12. Widespread protests, long periods of curfew and frequent strikes had a cumulative
impact on students and their right to education. It is claimed that schools and colleges
were closed for nearly 60 per cent of the working days during a session.10 Confidential
information received by OHCHR indicates an estimated 130 school days were lost for
approximately 1.4 million children.

13. Thus, it is evident that various fundamental rights including right to freedom of
expression, right to education as well as other basic rights have been frequently
violated in the state of J&K.

6
JKCCS, Annual Human Rights Review 2018”, p.8.
7
FIDH – and Association of Parents of Disappeared Persons (APDP) and Jammu Kashmir Coalition of Civil
Society (JKCCS) Key human rights issues of concern in Indian-Administered Jammu & Kashmir March 2019
8
Office of the United Nations High Commissioner for Human Rights Report on the Situation of Human Rights in
Kashmir
9
Amnesty International, “Communications Blackout in Kashmir Undermines Human Rights”, 22 July 2016.
JKCCS Human Rights Review 2016, pp. 22-23.
10
Since July 2016, Kashmir schools & colleges have been shut on 60% of working days”, India Spend, 30 May
2017