Jammu and Kashmir State Assembly Elections 2008: Survey and Observations

Jammu and Kashmir Coalition of Civil Society

Historical Backdrop

Jammu and Kashmir came under military occupation in October 1947. But the armed resistance began only after 1988. The decades between 1947-87 saw people fight for the right of self-determination through non-violent militant struggle. Every step of the way was punctuated with obstacles either in form of direct physical assault or of arbitrary arrests, false cases, long periods of detention without trial, politics of proscription where organisations were banned and their literature seized, elections rigged. But what began in 1988 was something unprecedented in scale and magnitude.

Article 42 of the Hague Regulations (also called law of warfare) describes occupation as a ‘territory placed under the authority of the hostile army’. In the Fourth Geneva Convention 1949 this is attenuated. Article 2 provides that the convention shall apply even to an occupation that ‘meets with no armed resistance’. The rationale for this was that there is an inherent antagonism between the occupier and the people. Article 47 of the Fourth Geneva Convention provides that ‘the benefits under the Convention shall not be affected by any change introduced, as a result of occupation of territory, into the institutions or government of the said territory, nor by any agreement concluded between the authority of the occupied territory and the occupying power, nor by annexation by the latter of the whole or part of the occupied territory’. The conditions in J&K conform to what is invested in the term ‘occupation’.

With heavy deployment of security forces empowered under the Armed Forces Special Powers Act since October 1990, which provides impunity to the security forces, and other draconian laws such as Public Safety Act (1978), the Enemy Agent Ordinance (1948), The Egress and Internal Movement (control) Ordinance (1948), Prevention of Unlawful Activities Act (1963), Prevention of Suppression and Sabotage Act (1965), etc., soldiers are authorised to search, question, raid houses, detain without charge-sheet, kill and injure on mere suspicion.

In our report ‘State of Human Rights in Jammu and Kashmir 1990-2006’ [Published by JKCCS, Srinagar, 2006] we had tried to show through our research that death toll in Kashmir was more than 70,000 for the period between 1990-2005. Admittedly not everyone died at the hands of Indian security forces, some were victims of militants. What is indisputable, however, is the fact that but for the war of suppression prosecuted by the Indian state, to smother people’s desire to exercise their democratic right to self-determination, there would not have been an armed resistance. In other words, the Indian state cannot shirk its primary responsibility for the destruction caused in J&K.

The Summer of Protests: Just two months prior to declaration of state assembly elections, on October 19, 2008, Jammu and Kashmir was in agitation. For over two months, in June to August 2008, masses of people came out in Kashmir to demand ‘Azaadi’ (freedom) from India. Militants silenced their guns in civilian areas. Simultaneously, in the Hindu dominated three districts of Jammu region, namely; Jammu, Kathua and Udhampur, an agitation spearheaded by Hindu right-wing extremists declared a sort of war against Muslims by imposing economic blockade. By August 11, the Indian state proceeded to crack down on Kashmiris demanding freedom, but adopted a kid glove treatment for the Jammu based agitation. Strict curfew, i.e., with shoot-at-sight orders, was imposed, reminiscent of early 1990, protesters fired at resulting in loss of lives.

According to chronological data collected by us (J&K Coalition of Civil Society), in just two months of July-August 80 people were killed, in contrast to year end total of 152 civilian deaths, with at least 2000 injured (of which nearly 600 suffered bullet injuries), doctors, ambulances and hospitals attacked by Indian security forces. There was complete ban on electronic channels and print media across Kashmir for days, journalists were beaten and their movement curtailed.

Total Number of Civilians Killed in 2008

Attack on Media and Journalists

Local Media Banned

Under these circumstances questions remain over the representative character of an assembly, which is elected through a process guarded by a security force considered hostile by people. Besides, it is common knowledge, that such an assembly has no mandate to decide the future dispensation of J&K. It is powerless to demilitarise J&K. It even lacks authority to release political prisoners without the sanction of Union of India’s Ministry of Home Affairs. Notwithstanding the absence of what can be considered a democratic process, we do not belittle the formal conduct of elections. Even this casts some light on the social ground reality. Moreover, these elections were being held after more than three-month-long agitations in J&K. It is for this reason, as in earlier years, we decided to monitor the elections to the J&K state assembly of 2008.

It is in this existing condition elections to the state assembly 2008 were announced.

The EC announced an unusually long seven phase election, spread over six weeks, from November 17 to December 24. Extraordinary measures were adopted. For instance, security forces deployment of 667,000 for counter-insurgency was augmented by 452 companies of central paramilitary forces (cpmf). Since each company comprises approximately 100 persons, nearly 50,000 more troops were deployed inside those constituencies where elections were to be held. The counter-insurgency grid remained intact. But areas where polls were to be held were cut off from the rest of Kashmir by imposing, what is euphemistically called, informal curfew. (See the table on Curfew/Hartal). It is called ‘informal’ because security forces do not announce declaration of curfew. Barbed wires blocked the highways and traffic was severely curtailed. No ‘outsider’ was allowed to be in the area where polling was to be held. So much so that some Indian observers were placed under house arrest in Srinagar during the seventh and the last phase of polls because they were outsiders. This was unlike the 2002 assembly polls, where we had commended the Election Commission ‘for living up to its commitment of letting official or unofficial observers free access to polling booths and unhindered mobility’ and lamented that ‘this lasted for less than a day.’ This time mobility became a casualty and free access was denied to practically most people. In 2002 polls, 17 foreign observers oversaw the polls, this time foreign observers were not even invited and most foreign media and observers were conspicuously absent. Separatist leaders, top to middle level, were booked under Public Safety Act, i.e., detained for two years. Not satisfied with this on November 2, 2008 secretary information, Mr K B Jandial, J&K government, through a circular directed the media to ‘refrain from publishing objectionable and seditious material failing which the government shall be constrained to take action under rules’. What was objectionable and seditious were the publication of boycott call and appeal by separatist leaders. The High Court Bar Association (Srinagar) pointed out, two days later, on 4th November, that neither People’s Representation Act considered a campaign for boycott of polls as unlawful and illegal nor is there a law, which compels the media not to publish boycott appeal. In other words the dice was, so to say, loaded against the separatists.

Another peculiar phenomenon was the incredibly large number of candidates per constituency. In all, 1354 candidates filed nominations. Which means an average of 15.56 per constituency. This is nearly three times the number in 2002, which was 5.81 per constituency. Remarkably, between 1983 to 2002, the average rose mildly: it was 4.38 in 1983, 4.69 in 1987, 4.92 in 1996, 5.81 in 2002, and 15.56 in 2008. An incredible number, 517, were independents.

What made these extra-ordinary measures unusual was the fact that the Indian state has been playing down militancy, in particular rhetoric of ‘proxy war’ levelled against a popular movement. Indian authorities have acknowledged that the number of infiltration bids, primary in determining all measurements of ‘proxy war’, had fallen sharply: from 2417 in 2001 to 535 by 2007. In 2008, according to the army chief, there had been a 65% decline up to 31st July, 2008 i.e. to 150, as compared to the same period in 2007. (The Times of India, 23 August, 2008.) The Indian government also claimed a seventy percent decline in militancy-related incidents between 1990 and 2007, from 3500 to less than 1000 incidents. Firing incidents came down from 671 to 183.  Bomb explosions declined from 1000 to just 50. Killings of civilians declined from 914 to 153. (The Tribune, 12 December, 2007.) According to the army chief, the number of militants, ‘present and active’ in J&K, is 750-800. It was also claimed that people are participating in existing political process and shunning ‘separatists’. Besides, ceasefire was being observed by India and Pakistan along the LOC since November 2003 resulting in ending mortar shelling and a fall in infiltration.

Table 1: Curfew and Hartal in 2008 in Kashmir

It is a moot point whether these conditions can be considered conducive for a ‘free and fair elections’ one in which ‘(t)he will of the people shall be the basis of the authority of government’, as laid down under Article 21(3) of the Universal Declaration of Human Rights (1948). But even within the constraints spelled above out there were other infirmities found in the electoral process.

Under Section 6 (1) of the Registration of Electors Rules 1960, ‘the names of electors in each part of the roll shall be arranged according to house number’. In the 1996 and 2002 assembly elections, the state Election Commission (EC) undertook summary revision, which places onus on people to come forward and register themselves. The Chief Electoral Officer of J&K was reported as telling the media, on October 9, 2002, that ‘there was no master copy of the electoral rolls, no intensive revision had been done; electoral rolls were not even in proper serial number’. According to the EC rolls were not revised during 2007. However they were revised in 2006 and in 2008. But how effective was the revision in 2008 when two months before the polls agitation had virtually paralysed the administration?

The electoral rolls released on October 19, 2008 shows the final published roll with 6,538,111 electors for a population projected to be 12,630,246 in the year 2008. As in 1996 and 2002 the ratio of population to electors, in the region of Jammu and Kashmir, remained skewed in favour of Jammu. According to EC, the projected population for 2008 of Kashmir and Jammu were 6,922,091 and 5,408,782, and the electorate were 3,260,282 and 3,077,266 respectively. In other words whereas the ratio of electorate to population was 0.47 in Kashmir it was 0.57 in Jammu. In 2002 voters in Jammu even numerically outnumbered those in Kashmir, namely 2,892,290 in Jammu to 2,546,913 in Kashmir. While in actual numbers this discrepancy appears to have been rectified in the 2008 electoral roll. However, the fact is that the ratio of electorate to population remains skewed in favour of Jammu. This is most striking when it is recalled that the census data for 2001 shows the population of Kashmir rising by 73% between 1981-2001, as against 60% for Jammu, in the corresponding period. Thus in 2002 population in Kashmir was 5.44 million as against 4.39 million for Jammu. In 2008 the projected population in 2008 electoral rolls was 6.9 million and 5.4 million respectively.

Table 2: Electors in Jammu and Kashmir

Note: See “Independent Election Observers Report: J&K State Assembly Elections 2002, pp 3 and ceojammuandkashmir@nic.in

Table 3: Ratio of Population to Electorate

In other words a large portion of the electorate, as much as 15 per cent, remains unrecorded in the electoral rolls of Kashmir region. It is important to note that identity cards are vital for residents of J&K; its absence can result in summary action by the security forces. Electoral Photo Identity Cards (EPICs) are the most sought after IDs. Intriguingly, EPIC coverage, which was just 26.35 as on 30th  June 2008 rose by November to a 68% coverage! Between July and November, three out of five months were affected by the agitation. And yet the EC managed to increase the EPIC coverage to 68 per cent, while it failed to perform under less strenuous conditions?

This does raise questions about the representative character of the electoral roll. In the game of election turnout, averages play a role, and any allegation about a rigged electoral roll would be a matter of concern. How does the Indian election commission explain this skewed nature of electoral rolls election after election? Why has it been unable to remove this anomaly? Does the under recording of electorate bring down the average turnout? How are such processes identifiable as ‘democratic’?

Thus, the staging of elections supervised by security forces which is perceived as being hostile towards Muslims of J&K, in conditions where separatists had been incarcerated, media warned against carrying messages of electoral boycott, and questionable recording of region-wise electors, raises serious concerns about the efficacy, purpose and trustworthiness of the process itself and its outcomes.

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