In contemporary political philosophy, the consent of the individual in any polity generally forms the basis of the authority of both the state and the government. Explaining the origin of the state and the legitimacy of the authority of state over the individual, the well-known social contract theory essentially maintains that individuals have, explicitly or implicitly, consented to surrender some of their freedoms to the state, in exchange for protections of their remaining rights. Similarly, rejecting the long-maintained divine-right theory, the very concept of ‘consent of the governed’ provides that the legitimacy of the government and its moral right to use state power is not legal and justified unless consented to by the people over which that political power is exercised.


The principle of ‘consent of the governed’ has played a pivotal role in evolving and strengthening the democratic political institution in the civilised world. It is the principle that has given rise to the very concept of ‘popular sovereignty’ in many modern democracies. Article 21 of the United Nation’s Universal Declaration of Human rights states that “The will of the people shall be the basis of the authority of government”. The American founding fathers have recognised this principle by incorporating it in the United States Declaration of Independence: “…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”. Presently, this principle has become an important touchstone to ascertain the legitimacy of a polity and its political institutions in the contemporary world.


Following the treaty of Union in 1706, the Kingdom of Great Britain came into being as a result of the political union of the Kingdom of England and Kingdom of Scotland. Later, the parliaments of both states duly ratified this treaty by the twin Acts of Union in 1707. Although Scotland has been the duly-acceded and undisputed part of UK for more than three centuries, yet the UK government has recently held the Referendum in Scotland to allow the Scottish people to decide their political future. Earlier in 1922, the Republic of Ireland has willingly separated from the Union. The UK has also readily incorporated the principle of ‘consent of the governed’ in its national political discourse over a the period of time.


In 1947, Pakistan was created after the partition of British India. The principle of ‘consent of the governed’ has also been central to the entire plan of this partition. The elected representatives of the provincial assemblies of Punjab, Sindh and Baluchistan formally decided to join Pakistan. Likewise, the majority of the people of the NWFP province voted in favour of Pakistan in the duly held referendum at that time. In accordance with this principle, at the time of partition of India, some five hundred princely states in British India, including Kashmir, were allowed to either join the dominion of India or Pakistan “keeping in view their geography, people’s aspiration, culture and religion”.
Since 1947, India’s has been trying to establish and consolidate its rule over the state of Jammu and Kashmir on the basis of a controversial Instrument of Accession. However, India’s very legal and moral footing to rule this territory is materially impaired. Firstly, in the utter violation of guiding principle of accession, India has ignored altogether the aspirations of the people of Kashmir at the time of its so-called annexation of Kashmir in 1947. Secondly, soon after this accession, Jawaharlal Nehru, the prime minister of India, time and again, publicly pledged that the ultimate fate of the Kashmir would be decided by its people. In the face of these statements of an Indian Prime Minster, this accession hardly has any legal or moral significance now.


Thirdly, calling for the free and impartial plebiscite to ultimately decide the question of accession Kashmir to India and Pakistan, there are UN Security council resolutions that have already acknowledged the disputed nature of India’s unilateral accession of Kashmir. Fourthly, under the respective constitutions of both countries, Kashmir is neither the part of India nor of Pakistan. Although both countries are exercising considerable administrative control over some parts of the territory of Kashmir, yet they have not, formally and constitutionally, annexed these areas as constituent parts of their respective territories.


Lastly, the people of Kashmir have yet not formally consented to join to India. The Kashmiris are actively struggling to get their right to self-determination. They have formally launched a freedom movement against the occupation force in Kashmir. India is committing the worst type of atrocities to suppress this freedom struggle in Kashmir for a long time. Thousands of Kashmiris have lost their lives in this movement. However, India has somehow failed in suppressing the voice of Kashmiris who are struggling for their just cause. They are demanding their inherent right to decide their own political future, as have done the people of East Timor and Scotland in the recent past.
India and Pakistan, the two South Asian arch-rivals have been instrumental in complicating this issue by declaring Kashmir as their inseparable part. Both countries have fought four full-scale wars over this issue so far. Similarly, they have also been trying to settle this dispute through bilateral dialogue since inking the Tashkent Agreement in 1966. They have never bothered about including the Kashmiris into this dialogue process. Undermining its international legal and humanitarian character, this bilateralism has reduced Kashmir to a territorial dispute between two antagonist states. In fact, Kashmir is not a territorial dispute between these two countries as this territory has never been in the legal possession of either country historically. As the Kashmir issue necessarily involves the question of right to self-determination of its inhabitants, therefore it must be treated as such.


For a long time, India is hoodwinking the international community through its extensive electoral manoeuvring in Kashmir by holding the state and parliamentary elections there. It is a paradox that India readily extends the instruments of political representation to Kashmiris but, at the same time, it outrightly infringes the political sovereignty of the part of Asia where they reside. Therefore, before deciding the question who should represent them, the very question why and who should rule the Kashmiris must adequately be answered. Without granting to the Kashmiris a right to decide their political future, holding elections in Kashmir would be a futile exercise. A controversial instrument of accession and a forceful occupation of Kashmir can by no means establish India’s ‘right to rule’ over this territory. Therefore, sooner or later, it will have to yield to the consent of Kashmiri people as the very pedestal upon which the whole edifice of its Kashmir policy rests has severely crumbled.