rediff.com: Arvind Lavakare on the Jammu and Kashmir election


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June 25, 2002

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Arvind Lavakare

'Free and fair' in Jammu and Kashmir

It was on this year's Republic Day that Prime Minister Vajpayee assured the nation that 'There would be free and fair elections in Jammu and Kashmir this time.' Implicit in that statement was the view that elections in J&K hadn't been 'f&f' till hitherto. The media has since latched on to that view so often that the common man has come to accept it.

Is that belief true or false? If true, who is to blame -- Delhi or Srinagar or both? None of our 'quick-on-the-draw' editors of today has bothered to find out.

Nevertheless, so infectious has Vajpayee's 'f&f' mission statement become that even J M Lyngdoh, the country's Chief Election Commissioner, has been affected. Thus, on June 17 in Srinagar, he told the media that, among other things like issue of photo identity cards to voters and 8,000 electronic voting machines, foreign observers would be free to visit J&K and monitor the state polls scheduled for October.

Quickly, The Hindu reacted favourably. Its first editorial of June 19 said, 'The preparations being made by the CEC…substantially address the logistical aspects of the overall objective of ensuring a free and fair poll process. The most significant suggestion is that there would be no bar on any prospective observers, including foreign nationals -- at least the foreign media…' That the editorial also blamed the BJP-led government for lack of initiative towards granting the reiterated autonomy for J&K is standard, that newspaper being what it is.

What is clear is that 'f&f' polls in J&K this time around has now become a star attraction on the national scene. Hidden therein is a much bigger distraction -- distraction from the facts of history and from the constitutional-cum-legal framework governing state elections in J&K where the last poll was held in October 1996 after unprecedented internal turmoil led to a long period of Governor's Rule from 1989.

The first post-independence election at the state level in J&K took place in August 1951. Those were for the State Constituent Assembly whose foremost task was the formulation of a state constitution which, remember, was not denied by the Instrument of Accession signed by the state's monarch in October 1947. On page 718 of his book A History of Kashmir (Metropolitan Book Co Pvt Ltd, Delhi 1962), P N K Bamzai records that 'Foreign correspondents and observers flocked to the state to witness the elections to this important body…'

Would Mr Lyngdoh and The Hindu have us believe that the above elections were 'f & f' merely because foreign observers were present? Were they 'f&f' although, as Bamzai noted, 73 of the 75 members were elected unopposed? Were they 'f&f' despite the National Conference winning all the 75 seats and despite 14 rejections besides 11 withdrawals? Or were they not 'f&f' because the NC, led by the then icon, Sheikh Abdullah, unbelievably won all the seats?

The J&K Constituent Assembly was dissolved once the regular state assembly came into being after the election of March 1957 when, with Sheikh Abdullah in jail, 62.1 per cent of the electorate cast their vote. Was that remarkably high proportion indicative of 'f&f' polls or not?

Perhaps the only one today who can give an honest answer to that question relating to the 1951 and 1957 state-level elections is Karan Singh, the Congress MP. He, as Yuvraj of the state in 1951, had asked the interim government of Sheikh Abdullah to set up a Delimitation Committee. In that same capacity, he had also appointed the Election Commissioner responsible for the preparation of electoral rolls and the conduct of the entire electoral process of the two polls. He did the same in 1957 as the Sadar-i-Riyasat.

Yes, even after J&K became a part of the Union of India, the Election Commissioner for the state was not an appointee of the government of India. It was only when Section 138 of the J&K constitution was amended in October 1959 that the superintendence, direction and control of elections to either House of the state legislature became vested in the Election Commission of India.

However, the CEC appointed by Delhi under Article 324 of the Indian Constitution is not axiomatically the CEC for J&K state. The latter appointment has in fact to be made under Section 138 of the J&K state constitution! [Page 365 of Dr A S Anand's The Constitution of Jammu & Kashmir (Universal Law Publishing Co Pvt Ltd, New Delhi, Third Edition, 1998].

Our former Chief Justice's above book also reveals on the same page 365 that the provisions of the Indian Constitution's Articles 325 to 334 which deal with elections to Parliament and the state legislatures are not applicable to J&K -- courtesy the Presidential Orders issued under Article 370. Most critical among the exceptions is Article 327 that empowers Parliament to make laws relating to preparation of electoral rolls, the delimitation of constituencies and all other matters for securing the due establishment of the state legislature.

Those powers in respect of J&K are given to the state legislature itself under Section 141 of the state's constitution. That must be the reason why Lyngdoh, on June 17 in Srinagar, spoke of a 'review of unsatisfactory voters' lists' and not of preparing them; he also did not disclose whether the tahsildars who are to issue photo id cards in J&K will remain under the control of their employer, the state government, for the period of the coming election.

Come to more consternation -- the delimitation of electoral constituencies. Half a century after the Yuvraj's order of 1951 on the establishment of a Delimitation Committee, India's Delimitation Commission Act, 1952, requiring a commission to readjust the representation of state assemblies is not applicable to J&K. In the latter, it is the state's Representation of People's Act, 1957, which permits the governor (under the advice of the government, naturally) to alter from time to time the delimits of electoral constituencies.

A result of this privilege was pointed out in an article in The Tribune of August 27, 2000, by Hari Om, professor of history at the University of Jammu. He revealed that today, out of the J&K assembly's total strength of 86 (excluding 25 seats reserved for areas of the state currently under Pakistan's occupation), 41 are earmarked for the districts of Jammu (predominantly Hindu) and Ladakh (significant Buddhist ) together, while 45 are earmarked for the Kashmir valley though the latter is comparatively tiny in area and population. And we know the demography of the valley, don't we? Shouldn't correcting that perverse distortion then be an intrinsic part of the 'f&f' mission in J&K? Or is that the crux of 'greater autonomy' to J&K?

Another critical factor about assembly elections in J&K is that under Section 140 of the state constitution, only the category of 'Permanent Residents' (defined by Section 6) are allowed to vote. The essence of that elaborate definition is that any Indian who was a newcomer to J&K territory after May 14, 1954 is not deemed its 'Permanent Resident' even though he may have settled there for any number of years thereafter. Similar would be the fate of anyone who, not being a recognised subject of princely J&K, had gone to Pakistan after first March 1947 and legally migrated to J&K some time later.

Arvind Datar, an advocate at the Madras high court, told a seminar in Chennai in December last about one such case of a certain Bachan Lal Kalgotra, a Hindu, who migrated from Pakistan to J&K in 1947 and lived there for 40 years thereafter. Yet, he was not classified as a 'Permanent Resident' and was therefore not eligible to, among other things, an electoral vote, despite a plea to an aghast but helpless Supreme Court. Datar estimated that there are eight to 10 per cent of J&K's population who are similarly denied the fundamental right of sporting the indelible ink finger mark of the polling booth.

'F&f' in J&K? Think it out yourself -- without those foreign observers.

And while thinking, consider the following quoted from page 149 of Jagmohan's book My Frozen Turbulence in Kashmir (Allied Publishers, Delhi, Second Edition, April 1992):

The elections in Kashmir during the period February 1975 to November 1986 were fought by the National Conference with fascist techniques… It was assiduously propagated that if the Kashmiris wanted to get rid of 'slavery,' they must vote for the National Conference.

The weakness of the Central Government, its vacillation, its lack of commitment to clear goals, the ostrich-like attitude of the Governors, the disproportionate praise of Sheikh Abdullah and his family, all emboldened the National Conference to follow the above course.

…the press and the Opposition were taken in by the double talk or were influenced by extremely narrow political considerations. None showed the courage to call a spade a spade…

Tailpiece: Jagmohan's famous book also says, on page 140, that 'Till 1975 when the NC was out of power, Dr Farooq Abdullah kept company with Amanullah Khan,' the chief of the Jammu and Kashmir Liberation Front, and that 'he went to the extent of saying "For independence of Kashmir every child would give his blood.' " One hadn't heard of a defamation suit on this subject --- not even when the doctor in the house is being touted for the seat of the nation's vice-president.

Arvind Lavakare

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