Published On: Tue, Apr 4th, 2006

April 24 Bypoll in Kashmir

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Elections are a festival of an organised civil society in a democracy. There can be no democracy without politics and no politics without people. At this jovial festival, people exercise their ‘people’s power’. This exercise is the basis of an authority to govern.

UN recognises the ‘will of the people’ in its Universal Declaration of Human Rights.

Article 21[3] of the Universal Declaration of Human Rights provides the necessary jurisprudence in support of  ‘elections’ in Kashmir. It envisages that ‘the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.

The report of the UN Secretary General A/46/609 and Corr.1 para. 76 maintains that “Elections in and of themselves do not constitute democracy. They are not an end but a set up, albeit an important and often essential one, on the path towards the democratisation of societies and the realisation 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”.

As one is free to take part in an expressed politics through participation in elections, so is one free not to participate in any such elections without fear.

Elections in Kashmir should have been like a political festival whereat the free will of human spirit takes a free plunge. The participation in elections is like unbinding the Prometheus.

The anti-election campaigners place their reliance on a baseless notion that Elections shall in any way stand to account for a Plebiscite. If the anti vote campaigners feel that an election would prejudice the right of self-determination, then their campaign has no merit at all. Kashmir has been through 9 elections – in 1951, 1957, 1962, 1967, 1972, 1983, 1987, 1996 and 2002. UN has settled the issue that elections, as such cannot be a substitute for plebiscite in Jammu and Kashmir.

We know it beyond doubt that India could not advance these elections, to advantage, her position vis a vis Kashmir. It is once again that the people of Kashmir are called upon to boycott the elections and not exercise the ‘peoples power’ to make a difference in their life leading up to a self-determination – achievable today, tomorrow or after many tomorrows. Life has to move till we realise the ultimate.

Use of violence to seek a compliance, of obviously varying interests by the State and private parties, has no merit. Violence by the State machinery, has no place in the exercise of a vote. Use of violence by non state groups to keep a voter away is a serious crime – a violation of human right.

Kashmiri leadership, is poor, in its understanding of a voluntary and involuntary participation, in the exercise of ‘free will’.

Anti election campaign is of no benefit to the people of Kashmir, if on one hand it results in a ‘sleep walk victory’ for those campaigned against and on the other if it does not link itself with the UN jurisprudence of the case.

UN is unambiguous on the question of a plebiscite in Kashmir. There is a clear UN edict on the difference between elections and a plebiscite. A continuation  in the process of elections on 24 April 2006  makes no difference.

India has been restrained in the past that the process of elections could not be counted as a substitute for self-determination. Elections in April 2006 or ever after attract the same jurisprudence of UN edict and face the unabating resolve of a people in regards to their understanding of an election and a plebiscite.

Kashmiri leadership on either side of the Line of Control, does not have a reliable grasp of the jurisprudence of their case. Their understanding of the jurisprudence of the case in relation to UN, India and Pakistan, is unclear. It is on this ‘dotted’ belief that they run the risk of being called the ‘stooges’ of Indian or Pakistani establishment.

The lack of understanding of the relative jurisprudence of the case leaves them to eagle spread on a frivolous defence. The local context of elections for a day to day governance and a broader context of UN approved plebiscite, are to be understood separately and on their own.

At worse, the leadership, has to weigh the gains and losses, if the people were to exercise their basic human right to participate in running the public affairs until the remainder part of the UN jurisprudence is invoked.

Anti-election campaign, of course an arduous one, fails in merit as it tends to   offer a ‘sleep walk success’ to the undeserving. It unduly raises the profile of local elections and undermines the real issue of self-determination. It has also caused loss of life and a fresh wave of violence against the people of Kashmir. And in the absence of a well planned follow up and a future strategy it ends up as a ‘single issue’ agenda.

Anti vote campaigners should consider the unmeritorious side of their campaign. Their anti vote campaign in fact helps those forces to return to power against whom they intend to campaign.

Politicians in Azad Kashmir, make a political meal out of the suffering of the people in the Indian administered Kashmir and the incarceration of Kashmiri leadership, in Indian prisons services them best.

At the very outset, the pro election and anti election schools have to understand and accept the jurisprudence of tolerance in UN resolutions. UN resolutions on Kashmir envisage and allow the people of Kashmir a difference of opinion on the question of self-determination.

Kashmiri leaders and advocates of Kashmir case have to conduct their case by the rules of the UN resolutions on Kashmir and to do so they have to study the jurisprudence of these resolutions. All the leaders sleep nose down to avoid this principal challenge.

We should not remain aloof and fall behind, in not exercising a ‘basic human right’ – the right to participate in the conduct of public affairs. Right to participate in the conduct of public affairs is prized by people throughout the world. A civil society ensures to involve individuals in community decisions.

Kashmiri leaders should  take a pro people position and stay away from going anti-democratic. If at all they have to propagate against the exercise of a vote it can hold logic only if they could prove:

That the ‘will of the people’ shall not be the basis of governance.

That the election lacks the merits of Article 21[3] of the Universal Declaration of Human Rights provides the necessary jurisprudence to prove a point in reference to ‘elections’ in Kashmir. It envisages that ‘the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.

That the elections would not cohere with the report of the UN Secretary General A/46/609 and Corr.1 para. 76 which maintains that “Elections in and of themselves do not constitute democracy. They are not an end but a set up, albeit an important and often essential one, on the path towards the democratisation of societies and the realisation 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”.

That there is a question mark on  the ‘effective administration of justice’, ‘importance of non interference with rights’ and the ‘existence of an environment free of intimidation’.

That Police and security forces accused of massive abuse of human rights cannot be trusted to play a role in an election setting. Effective administration of justice during an election period requires a balance between, on one hand, the need for electoral security and maintenance of order, and on the other hand an importance of non-interference with rights and the existence of an environment free of intimidation.

The necessary jurisprudence in this challenge is provided in the Code of Conduct for Law Enforcement Officials adopted by General Assembly in 1979.

This Code imposes upon all officers of the law a duty of service to the community. It requires that security forces strive to ensure that all citizens benefit from elections that are administratively sound and free of any disruptive forces which seek to undermine the free expression of popular will.

Article 2 of the Code of Conduct provides that “law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights”. This includes not only the human right to take part in elections, but all human rights.

That there is a ‘continued ring of suspicion’.

Elections in Indian administered Kashmir have continued to have a ring of suspicion around them. People do not have an informed choice and the lack of civic education, across the board makes the transfer of free will near impossible. There is no legal and moral common between the right of self-determination and the effort of the State to structure a respectability to govern on a daily basis.

A challenge could be mounted on the question of ‘non compliance’ with constitutional obligation a ‘breach of agreement’ and ‘non-participation’.

Elections in the Indian administered Kashmir could never be certified as complete or a reference on any other issue as long as over 2.5 million Kashmiri refugees are denied their right to return in safety and dignity and express their free will or as long as conditions under article 48 of The Constitution of Jammu and Kashmir are not satisfied.

Jurisprudence for this challenge is provided in para 6[a] of UN resolution of 5th January 1949 and Nehru-Abdullah agreement of 1952.

Political democracy cannot be isolated from other factors concerning the lives of a people. Kashmir is a subject of the right of self-determination at the UN. The UN package on Kashmir prescribes for India that she should make known the withdrawal of her forces to a minimum, and to arrange for the remaining forces to be stationed according to the following principles:

“(i) that the presence of troops should not afford any intimidation or appearance of intimidation to the inhabitants of the State;

(ii) that as small a number as possible should be stationed in forward areas” (Security Council resolution 47/1948).

Anti vote appeal which violates a basic human right of participating in the running of public affairs through an election process, is a serious decision. If participation in the elections is no solution to the dispute, non-participation does not bring this solution any nearer either. In the case of non-participation, the proponents should have a convincing and a workable alternative, to fill the vacuum. Anti-election campaign should not end up in a ‘sleep walk success’ for those who are campaigned against.

Anti-election campaign has to be carefully crafted to avoid handing over a negative concern that the people of Kashmir are-anti democracy. It requires extreme caution and care, to ensure that coercion and violence is not blamed on anti-election campaigners. One has to bear in mind that the relativity of interest in an anti-election or a pro-election campaign is different for India, Pakistan and the people of Kashmir.

Kashmiris have a double act to balance – i) the right to participate in the conduct of public affairs and ii) the right to self-determination. One cannot be ignored at the cost of the other. A continued denial of the former right could make the civil society sick in health and jittery in judgement.

Indian government would be desirous to see things return to an acceptable level of normalcy and to plan its second ‘direct’ or ‘indirect’ move in Kashmir. She has to seek to disengage her security forces in this war with a people.

Pakistan has an interest – a principal interest under the two constitutions, to see that no harm comes to the right of self-determination of the people of Kashmir. Pakistan too has to balance a double act – i) support of the right of self-determination and ii) her principal interest of accession of the state. She has to even her interest of accession with the endurance of the suffering of the people.

Now the pro vote and anti vote forces, use violence to seek a compliance of their desire. It is not the argument to persuade but the players – State sponsored and private, all seem at ease in the use of violence, intimidation and threat. The victim has remained the ‘free will’.

The lack of understanding in the political ranks, lack of a ‘mature judgement’ and the non use of ‘enlightened conscience’ or making of an ‘informed choice’, in the various parts of Jammu and Kashmir, has reduced the regime of human rights and fundamental freedoms to a flattering poor low. A future political analyst and a historian would always find it difficult to conclude as to what has been wrong at core with the struggle of the people of Jammu and Kashmir, that the demand of a ‘responsible government’ has eluded them since its first demand in 1932.

The people of Jammu and Kashmir need political opinions and militant disciplines – with a ‘mature judgement’, an ‘enlightened conscience’, a ‘reliable understanding of the jurisprudence of the case’ and with a ‘semblance’ well becoming in securing the rights of a civil society. Use of violence has no merit to crusade against a violence.

It is equally important that the institutions of politics and militancy don’t degenerate into self-serving interest groups in the name of the just cause. It is time that all the actors avoid a cul de sac and remain on the side of the people.

It is wise to admit that a people that fail to execute a transfer of free will in the running of day to day affairs are unlikely to graduate for self-determination. It is in this context that Lenin while in exile in Switzerland has rightly said that “there are decades when nothing happens; and there are weeks when decades happen”. The people of Kashmir shall have to look for the ‘weeks’ when ‘decades’ happen.


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