“To be free, participation in elections must be conducted in an atmosphere characterized by the absence of intimidation and the presence of a wide range of fundamental human rights.”(1)
1. INTRODUCTION
There is universal acknowledgement that free and fair elections are key to recognizing the right to self-determination. It is this clash of contrary opinions, manifested through informed choice through a ballot which is the basis of all democratic governance. An environment that is sensitive and responsive of basic human rights is an essential prerequisite for any election, which seeks to be characterized as free and fair.
“In addition to being a human right in itself, the right of citizens to take part in the conduct of public affairs, particularly through elections, requires, to be exercised meaningfully, the enjoyment of a number of other internationally protected rights. Among these are the rights to freedom of opinion, expression and association, and the rights to peaceful assembly and freedom from fear and intimidation. All these rights, including the right to take part in government, must be open to equal enjoyment without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Finally, a democratic government – with the assurance of free and fair elections – is itself an essential element in the full enjoyment of a wide range of human rights.” (2)
2. UNIVERSAL STANDARDS
Elections must be conducted in a manner consistent with international standards. Taking part in government is recognized as a basic human right in every region of the world. The unfettered freedom to hold a political opinion is imperative in the context of elections. A genuine assertion of popular will is impossible in an atmosphere where such freedom is absent or restricted in any way.
While each of the rights enunciated in the Universal Declaration of Human Rights (UDHR), and elaborated upon in the two International Covenants, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights will contribute to the required atmosphere, some of those rights take on additional importance for election purposes. Worthy of individual mention in this regard are the human rights to free opinion, free expression, information, assembly and association, independent judicial procedures, and protection from discrimination. Political propaganda, voter education activities, political meetings and rallies, and partisan organization are all common elements of the electoral process, and each must operate without unreasonable interference for the conduct of elections to be free.
3. ELECTORAL HISTORY IN KASHMIR
Elections were held in 1952 and in 1957 under the supervision of State Election and Franchise Commissioner. The State Representation of People Act was enacted in 1957 and since then, all elections to State Legislative Assembly are being held under this Act under the supervision of the Election Commission.
The last Assembly constituted in March 1987, was dissolved by the then Governor in February 1990.
The President of India issued the notification on 27 March 1996 calling upon the people in all the States including Jammu and Kashmir to elect their representatives for eleventh Lok Sabha (lower house of the Indian Parliament). The Jammu and Kashmir State went to the polls after a period of seven years. The State had no representative in the tenth Lok Sabha. The elections in the State were held in three phases i.e. on 7 May 1996, (Jammu and Ladakh constituencies) 23 May 1996 (Baramulla & Anantnag) and on 30 May 1996 (Srinagar and Udhampur).
A record number of 183 nomination papers were filed by 164 candidates for six parliamentary constituencies, including 8 women and 113 independents. After rejections during scrutiny and withdrawals, 110 candidates were in the electoral arena.
In the 1989 Parliamentary elections, 90 candidates including two women, had filed nomination papers, while 85 candidates filed papers in 1984, 59 in 1980, 62 in 1977 and 52 in 1971 Parliamentary elections.
The Constitution of Jammu and Kashmir provides for a Legislative Assembly for the State comprising 100 members. Of these, 24 seats have been earmarked for the people living in Pakistan administered Kashmir.
The State has six parliamentary (Lok Sabha) Constituencies. These are Baramulla, Srinagar, Anantnag, Ladakh, Udhampur and Jammu.
In 1976, the State Government constituted a Delimitation Commission headed by Mr Justice J L Kapoor, a retired Judge of the Supreme Court of India. Other members were Mr T K Basu, a sitting Judge of Calcutta High Court and Mr T Swaminathan, Chief Election Commissioner of India. The Commission recommended 76 territorial constituencies for the state Legislative Assembly as against 75, in pursuance of the 12th constitutional amendment of 1975. The new segment added was Suran in Poonch district.
By another constitutional amendment in 1988, 121 more segments were added raising the total strength of the Assembly from 100 to 111. Under section 47, sub-section (I) the composition of Legislative Assembly was revised and fixed at 111.
The Delimitation Commission was entrusted with the task of carving out 11 new constituencies. In pursuance of Section 4 of the Jammu and Kashmir Representation of the People Act, 1957, the Commission by an order on 27 April 1995 delimited 87 constituencies for the State. The new 11 segments delimited are: Nobra (Leh), Zanskar (Kargil), Gurez (Baramulla), Lolab (Kupwara), Batmaloo (Srinagar), Rajpura (Pulwama), Gool Arnas (Udhampur), Bani (Kathua), Kalakote (Rajouri), Domana and Suchetgarh (Jammu).
During 1966, a Delimitation Commission was constituted under the chairmanship of Justice G L Kapur with Shri R C Somi, retired Judge of the Punjab High Court and Mr K V K Sundaram, Chief Election Commissioner as its members and Shri P S Subramanian as Secretary of the Commission. The Delimitation Commission carved out the territory of constituencies.
The following Parliamentary Constituencies were delimited as under:
|
Sr No |
Constituency |
Area |
|
1. |
Baramulla |
Baramulla District |
|
2. |
Srinagar |
Srinagar District |
|
3. |
Anantnag |
Anantnag District |
|
4. |
Ladakh |
Ladakh District |
|
5. |
Udhampur |
Udhampur, Kathua and Doda Districts |
|
6. |
Jammu |
Jammu, Rajouri and Poonch Districts |
Consequent upon re-organization of districts in 1979 and delimitation, the six Parliamentary constituencies shall now comprise the following districts. The total number of Assembly segments in each of the constituencies are also shown.
With the issuance of notification by the President of India on 27 March 1996, the electoral process began.
The schedule fixed by the Election Commission was as follows:
|
Last date for filing of nomination papers: |
3 April 1996 |
|
Scrutiny of papers: |
4 April 1996 |
|
Last date for withdrawal: |
6 April 1996 |
|
Polling |
|
|
Jammu and Ladakh |
7 May 1996 |
|
Baramulla and Anantnag |
23 May 1996 |
|
Udhampur and Srinagar |
30 May 1996 |
|
Counting |
|
|
Counting of Votes: |
1 June 1996 |
|
Completion of Election Process: |
8 June 1996 |
|
CONSTITUENCY WISE POLLING STATIONS AND ELECTORATE OF LOK SABHA IN SRINAGAR AS ON JANUARY, 1996 |
|||
|
S. No. and Name of Constituency |
No. of Polling Stations |
No. of Electorate |
S. Votes |
|
1. Kangan |
55 |
35910 |
1 |
|
2. Ganderbal |
62 |
47914 |
– |
|
3. Hazartbal |
90 |
67147 |
– |
|
4. Zadibal |
56 |
47370 |
– |
|
5. Idgah |
65 |
55270 |
– |
|
6. Khanyar |
76 |
58486 |
– |
|
7. Habakadal |
68 |
55517 |
2 |
|
8. Amirakadal |
65 |
50417 |
– |
|
9. Sonawar |
64 |
50863 |
3 |
|
10. Batmaloo |
84 |
73318 |
– |
|
Total: |
685 |
542,112 |
6 |
4. PARLIAMENTARY ELECTIONS, 1967-1989: STATISTICAL DATA
|
ELECTIONS TO LOK SABHA |
|||||
|
Constit. |
Winning Candidate / Nearest Rival |
No. of Contestants |
Electorate |
Votes Polled |
Win/Riv Candidate Votes Polled |
|
LOK SABHA ELECTIONS – 1967 |
|||||
|
Srinagar |
Bakshi Gh. |
4 |
354,364 |
127,068 |
59,415 |
|
MIDTERM ELECTIONS TO LOK SABHA – 1971 |
|||||
|
Srinagar |
Shamim Ahmed |
6 |
371,149 |
208,723 |
128,948 |
|
GENERAL ELECTIONS TO LOK SABHA – 1977 |
|||||
|
Srinagar |
Akbar Jahan |
5 |
461,965 |
310,158 |
210,072 |
|
MIDTERM ELECTIONS TO LOK SABHA – 1980 |
|||||
|
Srinagar |
Dr Farooq |
– |
542,741 |
– |
unopposed |
|
GENERAL ELECTIONS TO LOK SABHA – 1984 |
|||||
|
Srinagar |
Ab Rashid |
5 |
640,514 |
330,269 |
264,633 |
|
GENERAL ELECTIONS TO LOK SABHA – 1989 |
|||||
|
Srinagar |
Contesting Candidate: |
5 |
uncontested(3) |
782,598 |
– |
|
Srinagar Population – 1981 |
|
|
Population, 1981 Consensus: |
708,328 |
|
Scheduled Castes (persons) 1981 Consensus: |
109 |
The first elections to the State’s constituent assembly were held in September 1951. All the candidates for this Assembly were “elected” unopposed. The fairness of these elections was certainly open to challenge.
Under five per cent of voters voted. No less than seventy three members were returned unopposed. The whole process was boycotted. This Assembly was supposed to be the Constituent Assembly to determine the future shape and affiliation of the State of Jammu and Kashmir. The credibility of the Constituent Assembly was exposed by none less than India’s then intelligence Chief, Mr B N Mullick, ” Nomination papers of most of those who could form an opposition were rejected”.
The elections during the regime of G M Sadiq, then Chief Minister, were little better. In 1984, Dr Farooq Abdullah was returned to the Assembly with a popular mandate. However, his government was dismissed. The 1987 elections ensued. The Muslim United Front (MUF) which according to most independent observers would have gained a third of the seats in the assembly found itself cheated by blatant rigging and gerry mandering of the electoral process, to the advantage of the Congress-National Conference alliance.
5. BACKGROUND TO THE PARLIAMENTARY POLLS
The Government of India went in for the Parliamentary Polls ostensibly on four assumptions: its new policy of “transparency” and releasing political prisoners has produced dramatic results; there is a great improvement in the situation on the ground favoring a return to normalcy; J&K’s major political players are keen to participate in the elections; and finally, even if there is a near-total boycott of polls in the Valley, an unrepresentative government can somehow gain legitimacy, as in Punjab.
However, the Government of India must recognize that disillusionment with Pakistan, has not made India’s Kashmir policy more palatable or reduced popular alienation.
The All Party Hurriyat Conference (APHC) gave a call for the boycott of the Parliamentary polls stating that the elections were no answer to their demand for the right of self-determination.
The APHC contends that the Election Commission of India does not have the jurisdiction to hold elections in Kashmir. The APHC holds that the Election Commission of India draws its powers in regard to elections from Art. 328 and related provisions of the Constitution of India but these provisions have been extended to the State without the prior or post-facto approval of the State Constituent Assembly while such approval is a must under Art. 370 of the Constitution of India. In law, therefore, the Election Commission has not acquired any powers and jurisdiction to hold elections in the State.
The APHC initially contended that the fate of the previous State Assembly still hung in the balance. Its pre-mature dissolution in February 1990, by the then Governor, Mr Jagmohan, under his own authority under Section 92 of the J&K Constitution was under challenge in a public interest petition before the Jammu & Kashmir High Court. However, the Court on 2 May 1996 dismissed a batch of writ petitions challenging the dissolution. The court in it’s order held that the writ petitions had become “infructous” after completion of six years of the prescribed life of the assembly.
6. THE INDIAN ELECTION COMMISSION
Mr T N Seshan, Chief Election Commissioner of India speaking to the media on 4 June 1996, declared the parliamentary polls in Jammu & Kashmir as “relatively free and fair.”
He stated that the Commission had received no complaint from the state that security forces had stamped ballot papers.
“I cannot unequivocally say there was no coercion,” he said but added that Srinagar and Baramulla registered a low 7.45 per cent and 6.9 per cent respectively of invalid votes.(4)
Mr Seshan speaking on 13 November 1994 said, “Kashmir is in distress, but elections are necessary to remove this pain.” That was a political judgement. It was not one for him to make as a self proclaimed referee.
Mr Seshan stalled the work of the State’s Delimitation Commission for a long time. Once his pride was assuaged, in September 1994, on its composition, he went about the work with all the zeal of a convert. Section 3 (i)(b) of the Jammu and Kashmir Representation of the People Act, 1957 was amended in July 1992 to delete the mandatory requirement of membership of the Chief Election Commissioner and enable his deputy chosen by him to serve instead. Mr Seshan had refused to serve under High Court judges.
Once a state is under President’s rule, the powers of its legislature can be exercised “by or under the authority of Parliament”. However, Article 370 of the Constitution of India renders such assumption of power by Parliament in respect of Kashmir unconstitutional. In July 1992, Parliament went one better, it enacted the Jammu and Kashmir State Legislature (delegation of Powers) Act, 1992, conferring on the President (ie, the Government of India) the powers of the State Legislature. He makes what are known as the President’s Acts.
Now, the election law could be tailored at whim. This explains why Mr Seshan so confidently assured Kashmiri migrants that they would be eligible to vote in camps outside the state, a facility unknown to the law.
Kashmir’s Act of 1957 has distinctive provisions regarding delimitation of constituencies. The legal skullduggery on the entire electoral proceeds merits detailed discussion. ” Sources at the Prime Minister’s Office” told UNI, an Indian news agency, on 19 March 1994 that both delimitation of constituencies and revision of electoral rolls “have been completed.” But Mr Seshan said on 23 March 1994 that the process of delimitation had started on 22 March 1994. On 21 October 1994, in Bombay, he had claimed that the work of delimiting 87 Assembly constituencies in the State (as against 76 earlier) was over and the revision of the electoral rolls was on.
On 26 January 1960 the President made an order under Article 370 extending the jurisdiction of the Election Commission to the State in respect of Lok Sabha elections. In 1959, Article 138 of the State’s Constitution had been amended to the same effect in respect of elections to the State’s Assembly and Council. The now admittedly rigged elections to the Assembly in 1962, 1967, 1972 and 1987 were all held by the Election Commission. Till 1967 the Assembly elected the state’s MPs. The first direct elections to the Lok Sabha (lower house of the Indian Parliament) were held in 1967, followed by ones in 1971, 1977, 1980, 1984 and 1989. None was held in 1991.
7. DELIMITATION OF CONSTITUENCIES
Upon the completion of each census, the number, extent and boundaries of the territorial constituencies shall be re-adjusted. as per law. There has to be a Delimitation Commission consisting of the Chief Election Commissioner and two working or retired Judges of the Supreme Court or High Court. The Commission is required to associate five members of the Legislative Assembly to be nominated by the Speaker.
No census was held in the Kashmir valley in 1991, due to the prevalent unsettled condition. In the wake of the census of 1981, the Delimitation Commission came to be established in Jammu & Kashmir. On the recommendation of the Delimitation Commission, the elected strength of the Assembly was raised from 76 to 87 seats. The Delimitation Commission published its final report, however, this was found to be vitiated on the ground that the Chief Election Commissioner, Mr T N Seshan, disassociated himself from the deliberations of the Delimitation Commission at a crucial stage and was neither a party nor even a signatory to the report.
The Commission was re-constituted with Mr Justice Kuchai as one of its members. He soon resigned from the Delimitation Commission in the face of threats from armed opposition groups. The Delimitation Commission no longer had any members of the J & K Legislative Assembly to be associated with it. The Commission was again re-constituted and Mr Justice Bilal Naziki, a newly appointed Additional Judge of the High Court, was inducted into it to fill up the vacancy caused by the resignation of Mr Justice Kuchai. The Delimitation Commission published its report on 27 April 1995 but its validity has been challenged before the J & K High Court and the Supreme Court of India.
The finding of the Delimitation Commission (which itself was a controversial appointment) cannot be considered as final because the J & K Constitution and Section 3 of the Representation of People Act of J&K make it obligatory to place the final order to the Commission before the State Assembly for approval. Since there is no state Assembly at present, this deadlock needs to be cleared before the poll results could be considered as final.
Some Congress legislators had challenged this decision in the J&K High Court. Another writ petition was also filed in the High Court challenging the electoral proceeds for holding fresh elections on the ground that as long as the status of the old assembly is not determined, there can be no fresh polls, one more petition challenging the validity of the Delimitation Commission, among other things, was filed by the J & K Panthers Party in the Supreme Court. (5)
8. REGISTRATION OF VOTERS
As for the formulation of electoral rolls. The Jammu and Kashmir Representation of Peoples Act requires that each constituency shall have a separate roll which shall be published first in a draft form and finally, in the revised form, after the claims and objections in relation to registration of voters have been decided by the Electoral Registration Officer and Designated Officers appointed under the said Act.(6)
In an interview with Mr J A Khan, the Chief Electoral Officer of Jammu & Kashmir, SAHRDC was to learn that the lists were not displayed at the Panchayat (village council) offices or the offices of the Block Development Officers (BDOs).(7) They were not displayed also at the Naib Tehsildar’s ( a junior revenue official) office. Mr Khan, however, averred that the lists had been displayed at a few offices of the Tehsildars (middle-level revenue official). He stated that it was not possible to display the lists elsewhere in view of the non- cooperation of the State Government employees and the threats from armed opposition groups.
The Election Commission has been unable to even commence the process of issuing voters identity cards in the Kashmir valley. After having grandiosely declared that for any election held after 1994, the voters must have identity cards, the Chief Election Commissioner had to eat humble pie as most states in India were unable to complete the process of providing identity cards to the voters.
9. THE REGISTRATION OF MIGRANTS
Migrants, both non-Muslims and Muslims, most of whom are in Jammu and others in New Delhi were given special dispensation to vote from other parts of India. Under the Representation of the People Act, 1951, and the Jammu & Kashmir Representation of the People Act (Supplementary) 1968 all voters can cast their votes in their respective constituencies.
10. INTIMIDATION OF THE ELECTORATE
Case 1
On the 31 May 1996, the South Asia Human Rights Documentation Centre (SAHRDC) expressed concern to the National Human Rights Commission in New Delhi about the arrest and unlawful detention of one Mr Mohamed Ramzan, son of Mr Abdur Rahman Najar, aged about 22 years and one Mr Abdul Rashid, son of Ghulam Mohamed, aged 45 years. Mr Ramzan and Mr Rashid are both carpenters by profession and are residents of the Solina Balla neighborhood on the Airport Road, Srinagar, Jammu and Kashmir.
According to SAHRDC researchers who visited the neighborhood on the morning of 31 May, the inhabitants of the locality stated that both the detainees were arrested in the morning of 29 May 1996 at 11 am. The arrests were effected by a group of soldiers belonging to the para-military force, the Border Security Force (BSF). The BSF personnel were accompanied by personnel of the Special Task Force of the Jammu and Kashmir Police. According to eyewitness accounts, both detainees were dragged out of their respective homes, beaten and bundled into BSF vehicles and driven to the nearby Shergadi Police Station. There, a Sikh BSF officer who had led the arresting party beat them further. This was done in the presence of neighbors who had gone to the police station in Shergadi to seek their release. SAHRDC made detailed enquiries in the neighborhood and learnt that both individuals arrested, had no previous record of arrests and were not even remotely involved with any militant or separatist activity.
SAHRDC learnt that both Mr Mohamed Ramzan and Mr Abdul Rashid were later taken to an illegal detention center housed in a house of a Mr Bhatt, a hindu migrant, who had fled the Kashmir valley. The house is situated near the D A V School in the Jawahar Nagar neighborhood of Srinagar. SAHRDC enquiries near the illegal detention center revealed that local residents had seen about 21 young men being taken into the illegal detention center in the last few days.
Neighbors of Mr Ramzan and Mr Rashid informed SAHRDC researchers that both of them were arrested to intimidate the neighborhood to cast their votes in the elections to the Srinagar Parliamentary constituency. The elections was held on the 30 May 1996. SAHRDC was witness to large scale intimidation by personnel belonging to the Border Security Force and the Central Reserve Police Force (CRPF). Unwilling residents were dragooned out of their homes at the crack of dawn and herded at gun point to polling booths. The Kashmir valley was witness to a mockery of a election process which should have been democratic, but was anything but that.
SAHRDC put out an international appeal expressing concern at the widespread illegal intimidatory arrests of ordinary citizens to coerce inhabitants of Srinagar to vote. It also demanded that the immediate release of Mr Mohamed Ramzan and Mr Abdul Rashid from illegal detention. SAHRDC demanded that the Indian authorities close down all illegal detention centers in Kashmir.
Case 2
On the morning of 28 May 1996, the village of Patwaw in Budgam district of Central Kashmir, was visited by personnel of the Rashtriya Rifles (National Rifles- a new internal security force officered by personnel of the regular Indian Army) stationed at Budgam town. The personnel were led by a Captain B L Dhoot. They searched the houses in the village and finding nothing incriminating, they left.
They returned the next morning that is 29 May 1996 a little after 9 am. While entering the village, they noticed one Ali Mohamed sleeping in the field. Ali Mohamed upon seeing the approaching soldiers, fearing a thrashing at the very least ran towards his house in the village. This only evoked the suspicion of the soldiers. They soon re-entered the village and specifically went to the house of Ali Mohamed.
There the Captain, Mr Dhoot and some other soldiers reportedly sent out all the men folk from the house. They, then, it is alleged, raped Ms Shahida aged 22 years, daughter of Mr Baqir Mir and wife of Mr Bashir Ahmed. The soldiers are also reported to have raped Ms Mariam aged 21 years, wife of Ali Mohamed who had been sleeping in the field.
SAHRDC learnt of this incident on 30 May 1996, outside a polling station in Budgam town. A villager who had been observing the SAHRDC researcher for some time making enquiries from voters, came up to him and informed him of the incident.
SAHRDC visited the village the next morning, i.e. 31 May 1996. The SAHRDC researcher was accompanied by Mr Tiziano Terzani, the New Delhi based correspondent of the German Weekly “Der Spiegel”. As SAHRDC was interviewing the village elders, it learnt that the Deputy Commissioner of the area, one Mr Naik accompanied by the Senior Superintendent of Police had visited the area earlier that morning to investigate the complaint of rape.
The village of Patwaw, is inhabited by those professing the Shia persuasion of Islam. SAHRDC requested the village elders to take the two girls to a Medical practitioner for a detailed medical examination. However, the village elders said that this was not possible as it was against their religious practice and their cultural norms.
SAHRDC is cognizant that when medical examinations are not done evidence of rape is difficult to substantiate. SAHRDC was unable to convince the villagers to take the women to the local police station to file a First Information Report (FIR). The village school master informed SAHRDC that they did not want to anger the Rashtriya Rifles personnel any more. They said that filing an FIR would only invite further unwanted attention from the personnel of the Rashtriya Rifles.
SAHRDC’s attempts to contact the Deputy Commissioner on the phone from Srinagar evoked no response.
Case 3
Mr Abdur Rehman, son of Mr Abdur Razack Dar, aged about 65 years is the President of the Solani Payen mohalla (neighborhood) in Srinagar. He was a soldier in the 13th J & K Militia for over 11 years. He was also a sub-inspector in the Home Guards. On his own admission, he said that he had the best of relations with the local police station in Shergadi neighborhood of Srinagar. According to testimony given to SAHRDC, at about 10 pm on 27 May 1996, two sub-inspectors from the Intelligence wing of the Jammu and Kashmir Police came to Mr Abdur Rehman’s house and asked him to accompany them to the nearby Shergadi Police station. At the Police station, the Station House Office (SHO) had him put in the lock-up stating that orders to arrest him had come from above. On 28 May 1996, Mr Abdur Rehman’s brother came to the Police station with some food. This food was allowed to be given only late in the evening. On the 29 May 1996, the local Deputy Superintendent of Police, one Mr Qayoom stated that he was being held to ensure that all the voters in his locality voted. Mr Abdur Rehman was informed that he would be released on the evening of 30 May 1996 after the voting had concluded. In the event, though a majority of the voters in Mr Abdur Rehman’s locality boycotted the poll, he was released at 7.30 pm on 30 May 1996.
If the polling was completed with little loss of life, hardly any law and order problem and no incident of violence, it was also sadly lacking in the element of a normal electoral process, the enthusiastic participation of the voter and a situation conducive to the free exercise of franchise.
Mr Shabir Shah, who feels elections are not a solution, says he had no doubts that the Government was capable of holding elections. “They can even hold Assembly elections if they want to,” says Shah, “and I have no doubt that they will succeed in doing so.”(8)
11. ALLEGATION AND COUNTER-ALLEGATION
According to officials, the Jammu and Kashmir elections results, particularly from the Srinagar Parliamentary constituency, reveal that despite widespread allegations of coercion by security forces, the voters did exercise a choice while stamping the ballot papers.
Government officials state that the claim that many voters, forced to go to the polling stations by the security forces had invalidated their ballot papers, had also been disproved. Of the nearly three hundred thousand votes polled in Baramulla, 2000 votes were declared invalid, amounting to about 7.5 per cent of the votes polled, three to four per cent above the norm.
In Srinagar, which saw 37 per cent polling, the invalid votes – about 20,000 – were almost 10 per cent of the total votes. According to State Government officials, the voters who exercised their franchise voted for candidates with established political image and on political lines.
SAHRDC and other independent observers, both Indian and Foreign media personnel were witness to the lack of privacy for the voter. Polling Officers in many polling stations were making sure that reluctant voters did nor invalidate their ballots.
On polling day, Srinagar residents alleged that the security forces had come to their homes in the morning and told them to go to the polling stations or “face the consequences”.
According to Government sources, while this allegation was a common refrain, only 37 per cent voters actually voted in Srinagar, indicating that a majority of the voters had no compunctions in flouting the security forces’ directives.(9)
Officials also claim that if at all the unexpectedly large percentage of voting in the State was due to fear of being victimized by the Army, it would be impossible to explain why the Congress, rather than pro-India militants contesting under the Awami League banner, emerged victorious in these seats. There was obviously some element of coercion, evident from the seven to 10 per cent invalid votes cast, as against the normal figure of three to five per cent.(10)
That may be the reason why a large number of voters in the interiors were searching for albai (plough) election symbol of the NC on the day of the polling.(11)
“The Army is not bothered about the polling percentage,” Lt Gen. Dhillon, had stated on the eve of elections. If this statement had been actually put to practice, India’s stock, would also have gone up in the Valley as a demonstration of its fairness.(12)
The contribution of the security forces, that of ensuring the almost impossible task of sanitization of the entire area, has been negated to some extent since they have also been used to fill the political vacuum. A low turnout would have been neither surprising nor a blow to the Government. This would have reflected the genuine element of democracy that is now submerged in the inflated percentages “secured” by the Army and paramilitary forces.
If people had been left completely free to vote, their resentment would have been targeted against those forcing and threatening them to boycott the elections rather than against those who forced them to vote, as it is today.
If the government felt it was necessary to demonstrate to the world that Kashmiris were voting, it was perhaps far more necessary for it to demonstrate to the Kashmiris themselves that the Indian Government could organize a fair poll, the past absence of which has been a rallying point for the separatist movement.
At dawn on election day, male residents of Tral, a town 40 km south of the summer capital, Srinagar, were awakened by armed Indian soldiers came back for their wives, mothers and sisters. Then the men in uniform promised a final check in the evening to make certain that the index finger of each resident was marked with indelible ink, applied at the voting center to prevent voter fraud. At a polling place in Tral, a shopkeeper too frightened to state his name said, “I’ve come here to vote out of fear”. Added a 70-year-old former government employee: “it’s a tragedy, it’s a shame.They should weep over this election.”
In Darsera village, carpet weaver Nissar Ahmed, 21 recounted, “The BSF men came to my house at 7.15 am and said they will shoot me if I don’t vote.” In Sopore, a public-works-department employee reported, “The BSF men told us if we talk to the press they’ll break our legs.”
With that specific precedent, India may have blundered in thinking an election based on coercion could have helped in any way. “People don’t want elections”, said Ghulam Nabi Mir, a school teacher. “They want self-determination. Let the army and the BSF withdraw from this area, and not one man will cast his vote.”(13)
12. THE POST-POLL SCENARIO
There is no doubt that if voters had been freely allowed to exercise their franchise, substantial numbers would have voted. Independent observers, including SAHRDC believe that the polling percentage could have been as high as 20%. This would have been inspite of the call for a boycott and any intimidation by armed opposition groups. It is widely believed in the Kashmir valley, that the resentment would have been directed against those forcing voters to boycott the elections.
Elections in and of themselves do not constitute democracy. They are not an end but a step, albeit an important and often essential one, on the path towards the democratization of societies and the realization of the right to take part in the governance of one’s country as enunciated in major international human rights instruments. It would be unfortunate to confuse the end with the means and to forget that democracy implies far more than the mere act of periodically casting a vote, but covers the entire process of participation by citizens in the political life of their country.
Article 370 has been battered beyond repair. Elections make sense as part of such an accord, not as an alternative to it. Electoral fraud for four decades largely accounts for the people’s alienation and suggests the need for an accord which will render such fraud, violations of Kashmir’s aspirations impossible. It is both necessary and instructive to recall that record today.(14)
13. WHAT IS TO BE DONE?
The ultimate indication of whether elections are “free” is the extent to which they facilitate the full expression of political will of the people concerned. It is, after all, this will which, according to the Universal Declaration of Human Rights, is the very basis of legitimate governmental authority.
Laws in force which might have the effect of discouraging political participation should be repealed or suspended. Emergency or other exceptional legislation restricting fundamental rights should be repealed or suspended. Exceptional measures must not be imposed unless strictly required by the exigencies of the situation, and must not be calculated to corrupt or unnecessarily delay the political process.
The Armed Forces (Special Powers) Act is one such piece of legislation. A majority of the districts of Kashmir are declared “disturbed areas”? No election will be credible that does not concomitantly allow even peaceful democratic protest.
The right to freedom of expression is, however, partially limited by paragraph 3 of Article 19 in the International Covenant on Civil and Political Rights. Nevertheless, in order to avail itself of the limiting factors enumerated in paragraph 3, a State cannot merely assert that it was necessary to restrict freedom of expression for reasons of national security or for any of the other specified reasons.
In other words, the limitations were not included in the article to provide States with an excuse for placing restrictions upon free expression. Any impediment to free expression must be provided by law and be necessary in order to protect one of the purposes cited in the article. In reviewing such cases, the U N Human Rights Committee has held that a State under review must provide concrete evidence, including details of alleged charges and copies of court proceedings, that there was indeed a genuine and serious threat to national security or public order. Limitations on a State’s ability to avail itself on paragraph 3 are of paramount importance in the context of elections, where the dissemination of all information must be permitted to the maximum extent possible in order to ensure that the electorate is fully informed. Without a well-informed electorate, it is impossible to guarantee that elections genuinely reflect the will of the people.
Any restrictions on the right of assembly may not go beyond the need to protect the public interests listed and the least restrictive means must be employed. Furthermore, it should be noted that State authorities have a duty to protect the demonstrators themselves. The right of assembly must be respected, since public demonstrations and political rallies are an integral part of the election process and provide an effective mechanism for the public dissemination of political information.
Periods of democratic transition often follow national emergencies, both declared and unofficial. Because emergency or other exceptional legislation restricting fundamental rights will be generally inconsistent with the conduct of free elections, States preparing for elections should carefully review such laws with a view to their repeal or suspension during the campaign enjoyment of free expression, information, assembly, association, etc, must be seen as incompatible with the conduct of free and fair elections.
Arrangements for fair media access by candidates and parties are an important focus of electoral law. This is especially evident where the major electronic information media are government-controlled. Media regulations should provide for safeguards against political censorship, unfair government advantage and unequal access during the campaign period. Newspapers in Kashmir have not been published since the announcement of elections as both the Government and the armed opposition sought to impose their respective conditionalities. The Government has been periodically seizing copies of the Kashmir Times, an English language daily from Jammu.
The observation and verification of election preparations, voting and counting by representatives of political parties and candidates should be widely provided for in election legislation. In addition, the presence of non-partisan election observers from national non-governmental organizations and international organizations can help secure public confidence in the electoral process. SAHRDC, when it met Mr J A Khan, the Chief Electoral Officer in Jammu & Kashmir sought permission to visit polling booths. Mr Khan side stepped the issue stating that only the Chief Election Commissioner (CEC) in New Delhi could accord such permission. A hand-delivered letter to the CEC, Mr Seshan, from the New Delhi office of SAHRDC evoked no response.
One type of United Nations involvement is a verification mission in which the electoral process is organized and administered by a national organ and the United Nations is asked to give its opinion as to the freedom and fairness of the electoral process. This may be a course that India is encouraged to adopt if the Assembly elections in Kashmir are held in the near future.
In cases where some of these criteria have not been fulfilled, especially in cases where the missing criterion is the absence of sufficient lead time to undertake a comprehensive mission, the United Nations may decide to respond in one of two ways. The first is to organize a mission to follow the electoral process closely and report to the Secretary-General on its results. In some cases, the Centre for Human Rights or the Election Assistance Unit (EAU) may provide specialized staff to assist in the mission. The second response is to coordinate and support international observers affiliated with other organizations. Neither of these responses can be categorized as a comprehensive supervisory mission and they do not include any express pronouncement on the freedom and fairness of the electoral process. They do, however, provide a certain level of United Nations presence that can strengthen public confidence in the electoral process and enhance the quality of the electoral exercise.
Finally, in view of the sordid history of rigged elections in Kashmir, some kind of credible international supervision will have to be arranged. It does not necessarily have to be by the UN. But there must be an international supervisory mechanism that inspires confidence in the international community as well as among the people of Kashmir.14.
ENDNOTES
1. Human Rights and Elections, A handbook on the Legal, Technical and Human Rights aspects of elections. Centre for Human Rights, United Nations, 1994
2. ibid
3. Jammu and Kashmir Lok Sabha Elections – 1996, Department of Information & Public Relation
4. The Financial Express, 5 June 1996, The Indian Express, 5 June 1996
5. The Daily Kashmir Times, Jammu (Dated: 28.11.1994)
6. Manual of Election Law, Volume 1 & 2, Election Commission Of India, New Delhi, 1995
7. Interview with Mr J A Khan, Chief Electoral Officer on 28 May 1996
8. Interview with SAHRDC on 31 May 1996
9. The Pioneer, June 4, 1996
10. The Pioneer, June 4, 1996
11. By Zahoor Malik, The Sunday Observer, June 2-8, 1996
12. By Aunohita Mojumdar, The Statesman, 28 May 1996
13. By Anthony Spaeth, TIME International, June 3, 1996
14. The Daily Kashmir Times, Jammu (Dated: 21.04.1995)