Illusion and Reality

The J& K State Assembly Elections

“Between the idea, And the reality, Between the motion, And the act, Falls the shadow.”

The poet TS Eliot described in The Hollow Men, the shadow between promises made and delivered – a hollowness known by every Kashmiri that hopes for free and fair elections in the state.

If the statements of politicians could be relied upon, it would appear that India has come to realize the significance of holding free and fair state assembly elections in Jammu and Kashmir (J&K).  But as the recently slain Kashmiri leader Mr. Abdul Ghani Lone observed, “Kashmir is a story of broken promises.”  There is an uninterrupted history of election fraud in the state, which has even been acknowledged by hard-line Deputy Prime Minister (DPM) Mr. L. K. Advani, who said in August 2001 that, with the possible exception of 1977, all previous elections in the state had been rigged. 

In the last year, leaders from India, the European Union (EU), and the United States (US) have spoken about the paramount significance of democratic governance in J&K as a necessary prerequisite of peace.  The fundamental elements of free and fair elections are many.  India’s obligations to ensure free and fair elections must be viewed in light of clear international standards provided in international law – principally derived from the International Covenant on Civil and Political Rights.  Despite credible evidence of past election malfeasance and on-going concern from US and Europe, India has so far rejected calls for international election monitoring.  Independent international monitoring is required to maintain electoral integrity, and to ensure the Kashmiri right to democratic governance. 

Recent statements by DPM Mr.Advani that the Election Commission of India is fully capable of administering free and fair elections in J&K without international election monitoring are contrary to the long history of election fraud in the state.  The Chief Election Commissioner would bear reminding that the blatant election abuses of recent past elections were ones for which the Election Commission of India provided the only official oversight.

According to international human rights law and Indian law, the people of J&K have the fundamental right to take part in their government through freely chosen representatives.  To ensure this right, 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.  During the elections in 1996 and 1998 there was widespread voter coercion carried out by the Indian security forces that forcibly entered homes throughout Kashmir, rounded up civilians to take them to polling booths and threatened them with physical harm if they did not vote.  This time around there must be a zero tolerance policy for such behaviour.  In word at least, Election Commissioner Mr. J.M. Lyngdoh has announced that security forces would not be allowed to coerce people to vote so as to increase voter turnout.  However, considering the high level of impunity already enjoyed by security forces for their human rights violations, real assurances can only come through independent international monitoring.

International monitoring will also dampen the efforts by armed opposition groups to intimidate the electorate against exercising their franchise. Armed militants have already killed a number of political workers to spread fear. One estimate states that around 2000 National Conference workers alone have been killed across J&K in the last 12 years. International presence will only reconfirm to those who believe in the bullet, the universal abhorrence of the gun and the supremacy of the ballot.

Obstacles to full participation must be removed and citizens must be free of fear of personal harm resulting from political participation. .  Nonviolent opposition political leaders are often the subjects of preventive detention and police harassment.  The release of several members of the main opposition formation, the All Party Hurriyat Conference (APHC), being held under provisions of the Public Safety Act (PSA) is seen as an encouraging indication that the government recognizes the baseless political nature of their arrest.  However, the unwarranted detention and harassment of other leaders -- including Yasin Malik who was ordered released on bail by a J&K judge but immediately re-arrested on undisclosed charges under the PSA – suggests that political harassment will continue unabated during the election period.  When US Secretary of State Powell visited Delhi in July 2002 he reiterated the requirement that political prisoners be released.

In order to guarantee the fundamental right to a free and fair election several additional logistical concerns must be clarified by the Election Commission of India:

The minimum standard for voter registration and maintenance of registers is that there is complete transparency in the process.  There are serious concerns that the current electoral rolls are faulty.  In October 2001 the Election Commission ordered summary revision of electoral rolls for the state.  In March 2002, the Commission disclosed that the rolls were “ridden with large-scale inaccuracies” and ordered a “comprehensive correction.”  In late spring 2002, the Commission began a special drive to computerize the voter lists, and ordered “house-to-house verification” of the lists.  Most of this effort is reported to have been finished.  It is worth asking how the Commission field officials made house-to-house verification of 52 lakhs (5.2 million) electors in only a few weeks.  The Election Commission of India has said it was a priority to “make available to all concerned in the state clean, legible, computerized electoral rolls of high accuracy.”  These rolls should be independently audited to ensure their accuracy. 

The government initiated a massive drive to provide each voter in the state with a photo election identity card.  The Election Commission has not indicated whether new identity cards will be a compulsory requisite for voting, but it is doubtful that they could be issued to the entire electorate in the intervening period.  Further, voters are required to supply the photographs at an average net cost of Rs 35 after reimbursement from the government.  The Government has only agreed to reimburse Rs 15 of the Rs 50 cost.  The difference is roughly equivalent to two days’ wages in many areas of the state.

The Election Commission now holds that its staff will distribute voters’ slips to the 5.2 million electors. There evidently needs to be independent verification of this claim.

The Election Commission has stated that voting will be conducted on Electronic Voting Machines (EVMs) in all polling stations.  If properly administered, these have the potential to reduce ballot-counting irregularities, but there has been no training of the citizenry in their use, and no announcements regarding the measures that will be taken to ensure there is no tampering.

Recently, it was announced that the elections would be held in four phases, from 16 September to 8 October.  The justification for the schedule is that it will allow the Government of India to provide the necessary security for the elections – a legitimate concern.  Given the increased time period over which the election will take place, it is important that the government also provide for the security of the ballots.  According to the plan, votes will be cast for four weeks, and then ballots will be counted between 10-12 October.  The treatment and storage of cast ballots must be independently monitored to guard against tampering with ballot boxes or the EVMs based on the geography of the voters.  In past elections there have been allegations of entire ballot boxes being lost or discarded, failure to secure the ballot boxes or EVMs in a central location, and lack of observer access to ballot box storage facilities before and during counting.  Current provisions to remedy these problems must be disclosed.

Resistance from the Indian government has met recent proposals from European and American diplomats that independent international monitors should observe the J&K elections.  Although India has attempted to mollify concerns about their failure to provide free and fair elections in the past by allowing foreign journalists and other international observers “acting in their individual capacity.”  Apparently, the Indian Government is wary of an organized, independent election monitoring effort that might question the legitimacy of its inadequate election procedures.

To guarantee free, fair and genuine elections independent bodies unaffiliated must supervise them with any particular party with a stake in the outcome.  It is manifest to all in India that the neutral civil servant is rare in present-day India and in Kashmir it is an extinct species.  Conversely, international organizations such as the UN, the Organisation for Security and Co-operation in Europe (OCSE) and the Carter Center have been increasingly utilized in election monitoring for the purpose of providing expertise, impartiality, and legitimacy.  It is not only essential that the elections be free and fair, but also that they be seen to be free and fair.  This will only be possible through the meaningful use of independent international monitors. 

It is apparent to observers of the situation in J&K that a necessary criterion of a lasting peace is a return to the supremacy of the rule of law in the state.  This is especially important in order to ensure the return to genuine democratic governance.  A bridge between the idea and the reality of free and fair elections can only come through independent international monitoring aimed at facilitating transparency of process – and eliminating the shadow of broken promises in Jammu and Kashmir.

- Human Rights Features

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