Under the Constitutional scheme of India i.e. Bharat; all aspects of the conduct of elections are the sole responsibility and remit of Election Commission of India (ECI). Spectrum of activities, include, voter registration, voter identification, continuous up gradation of electoral rolls, the timings and the phases of the elections. ECI has taken a public exception of the reported statements of Lieutenant Governor (LG of UT of Jammu and Kashmir) that elections in Jammu and Kashmir will be completed after the delimitation and considers it a transgression of its constitutional authority. A first such statement issued by one Constitutional Authority to another; in history of last 75 years. Was this transgression in the view of ECI grave enough for a public reprimand? Was it issued, after considering what ground reality LG faces as constitutional head & issued after due considerations of real challenges before the Election Commission of India in Jammu and Kashmir?

We know it very well that no election notification has been issued so far in the Union territory of Jammu and Kashmir. LG, under the present dispensation, enjoys both legislative as well as executive powers vested in him under Articles 239 and 240 of Constitution of India. He can make laws which can be a binding on ECI under Article 324 of Constitution of India. The intent of the LG Statement on the face of it appears to be an assurance that elections in the state would be conducted sooner than later. LG in his several interactions had suggested that, if people want, ECI can order election tomorrow. Such assurances are not unwarranted in the light of malicious propaganda going on, that Jammu Kashmir is relapsing into an unlimited period of authoritarian rule. Jammu Kashmir is in a critical phase of transition. It has to move towards a full political and psychological integration after the removal of constitutional barriers that had kept it as a State apart or as a State within the State.

Taking of public affront by the ECI is however surprising if not disconcerting. ECI has shown unlimited tolerance in case of many matters regarding the conduct of elections and its jurisdiction in the state. Mention of some of them here will not be out of place.

Since 1996, in all the elections conducted in Jammu Kashmir, the internally displaced population from Kashmir has been voting in exile through a specialized scheme of voting for the constituencies in Kashmir valley. Please note they have ceased to be ‘ordinary residents’ for around three decades; and not a single member of ECI has shown, so far, any inclination on fundamental rights of these exiled generations It is also a well-known fact that the procedure set by ECI for such type of voting in exile is so cumbersome; it invariably results into low voting turnout. Procedure for issuance form “M” has been under cloud for long three decades. Registration of new voters from these exiled families has not even been considered. How serious are these issues of democratic rights for ECI?

ECI knows it very well what stand it took regarding the conduct of elections in Gujarat after the Godhra carnage and subsequent riots. It took the position that it will go to the extent of even assessing the psychological environment for the voters in Gujarat and only then decide whether to conduct elections or not. Such sensitivity was never demonstrated with regards to the conduct of elections in Jammu Kashmir, where a massive chunk of population of Kashmir and most part of Jammu has been subjected to religious cleansing and expelled at the point of gun; without a whimper from state machinery. The ECI could have at least publicly underlined the implications of a grave situation in which a segment of Indian population has been permanently relegated into a voter in exile.

Many amongst this internally displaced population over the years had enrolled themselves as normal voters outside Kashmir in Jammu where they have been living for more decades. In the last Parliamentary elections a substantial number of votes of internally displaced people from Kashmiri who otherwise had enrolled themselves in Jammu were transferred back to Kashmir without their consent. Why did Election Commission allow it? Was it not a brazen violation of the Peoples Representation Act? This issue came up in the public domain. The Election Commission did not even address the issue. How does this inaction compare with public reprimand of another Constitutional Authority i.e. LG of UT?

For three years Anantnag Parliamentary Constituency remained unrepresented in Lok Sabha. Then MP Mehbooba Mufti had resigned from this Parliamentary constituency in 2016. She had assumed the reigns of the state as a Chief Minister of the State of Jammu Kashmir. However elections were not held in this parliamentary constituency by the ECI when they were due. Justification by the EC was that law and order situation was not conducive for conduct of elections in this parliamentary constituency. Incidents of violence which had taken place in the adjacent parliamentary constituency Srinagar became the alibi for postponing conduct of elections in Anantnag. Was this excuse a flimsy one and did it not actually serve the political interests of Peoples Democratic Party (PDP)? Did election commission abdicate its legal responsibility?

Post neutralization of Article 370, abrogation of 35 A & reorganization of the erstwhile state of Jammu Kashmir; it is bifurcated for the time being into two Union Territories. This constitutional amendment has made about three million refugees of West Pakistan and Pak Occupied Jammu and Kashmir as well as Gurkhas and Valmiki samaj as eligible domiciles of the UT of Jammu and Kashmir. Most of these were denied even voting right in assembly elections. All these years ECI didn’t take any objection to violation of fundamental right of voting in a democracy. Why? If the ECI wanted, it could have approached SC and posed question of Law, “how can one portion of population be subjected to discrimination in basic democratic right in local elections”. Can it be called an act of Omission? Didn’t election commission till now ditch Dalits, Valmikis, Gorkhas who follow Dr Ambedkar; father of Constitution of India; in letter and spirit?

The process of issuance of domicile has just begun. Registration of Migrants and displaced persons will continue with Relief Commissioner initially up to 16 May, 2021. GoJK has another 15 days for issuance of domicile to eligible voters after that. Registration by such eligible, domicile holders for purposes of voting could be done only after such process is over. Displaced persons who were from Pak Occupied areas have too been driven out forces. Not only they were denied PRC i.e. basic citizenship document in the past, they were denied relief announced by Prime Minister Fund. How will ECI assure and guarantee these families a free and fair elections, unless their population is considered for Census purposes; and registration as voters?

Delimitation of legislative Constituencies has been taken up by Government of India based on 2011 Census in Jammu Kashmir. All these legitimate domiciles should as well be a major determining factors for the new delimitation in the Union Territory. This vital factor would be denied the right of being a factor in delimitation process which would undermine the basic principle of delimitation and thereby would be contrary to the legislative intent of the Representation of people act of India 1950.

Most important development of the electoral process in Jammu Kashmir, since 1996, ECI may have chosen to overlook; has been the competitive communal and secessionist campaigning, by the contesting candidates all through. The crescendo of such type of campaigning has only become more intense over the years and the election campaigns particularly in Kashmir have become competitive races to please the separatist and fundamentalist establishments within and across the borders.

Democratic exercise in any part of India is guaranteed by the Constitution of India and takes place within the boundaries determined by it. When electoral campaign is allowed to flirt with secessionist, fundamentalist and communal agenda, it undermines the very Constitution that guarantees the electoral rights. Silent and hush-hush campaigns allegedly promising “Nizam-e-Mustafa”; were overlooked by ECI time and again.

Permissiveness of separatist sensitivities creates perverted democratic order that transgresses the Constitution. It leads to the creation of soft and permissive states. In a place like Jammu Kashmir where enemies of the nation have always been active, such permissiveness allowed the separatist politics during election campaigns, has facilitated the creation of a perverted democratic order; based on subversive motivations. Mere conduct of elections is not an end in itself. Conduct of elections within the discipline that Constitution of India has underlined; prevents the misuse of democracy, by forces who seek to destroy the democratic order, by using the democratic space. In a place like Jammu and Kashmir ECI has to be most sensitive and proactive, about the conduct of elections which do not end up with promoting anti-national agenda.

ECI has a constitutional responsibility. Its constitutional authority cannot be allowed to be transgressed. The Challenges to the conduct of electoral processes in Jammu and Kashmir are daunting because, it is here, that intense subversive campaigns are on to use the democratic freedoms, to subvert democracy. Election Commission of India has to rise to prevent misuse of electoral processes. Even if it means of approaching legislature or Supreme Court of India, to protect the so far unprotected, till 5th August 2019. Entire world is watching.

Image Credits: By Election Commission (GODL-India), GODL-India, https://commons.wikimedia.org/w/index.php?curid=71645030