Srinagar: Electoral politics in Jammu and Kashmir was the exclusive domain of its permanent residents before the BJP-led Central government unilaterally scrapped Article 370 in August 2019.
Like its jobs and its land, Jammu and Kashmir’s elections have also been opened up for “outsiders” – those who were not permanent residents of J&K before August 5 last year – as any Indian citizen can now become eligible to vote or contest in the assembly, panchayat and municipal elections by fulfilling the condition of being an “ordinarily resident” of the Union territory.
With doors being opened for non-natives, refugees from West Pakistan, who have been residing in J&K for seven decades, will be eligible to vote in the forthcoming district development council elections and by-polls for panchayats and urban local bodies. This will be the first time they will be voting for any local body elections in the erstwhile state.
Position before August 5
Under the legal framework existing in the erstwhile state of Jammu and Kashmir, its permanent residents were only entitled to vote or contest in elections to the assembly and local bodies after enrolling themselves as electors. The statutes governing polls in the erstwhile state disqualified any person from being registered as a voter in the Jammu and Kashmir assembly and local bodies elections if he or she was not a permanent resident of J&K.
But there was no restriction on any Indian citizen, registered as a voter anywhere, to contest Lok Sabha polls in J&K.
Constitutional changes impact on electoral politics
The constitutional and legal changes enacted by the Centre last year scrapped the precondition of being a permanent resident of Jammu and Kashmir for registering as an elector for the assembly and local bodies elections in the Union territory.
Now anyone enrolled as an elector in J&K can vote or fight assembly elections anywhere in the Union territory and local polls in his or her respective panchayat or urban local body. The refugees from West Pakistan, who were not able to contest state polls in Jammu and Kashmir, have become eligible to vote and contest all elections in J&K by virtue of being an “ordinarily resident” of the Union territory.
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“The West Pakistan refugees can vote in elections as they are citizens of India and are residing here as per definition of the Representation of the Peoples Act,” state election commissioner Kewal Kumar Sharma told The Wire. Lawyer and BJP spokesman Sunil Sethi said that anyone registered as a voter could contest elections in J&K.
“A person who constitutes electoral college will be in a position to contest elections. So any person who is voter can contest,” he said. Unlike parliamentary polls, there is a legal binding that a person contesting assembly polls anywhere in a state or Union territory must be an elector of that state or Union territory.
So those who are “ordinarily residents” of J&K can contest assembly polls in the erstwhile state after enrolling themselves as voters.
Who are “ordinarily residents” of J&K?
The conditions prescribed for enrolment as an elector in a constituency or state or Union territory is that the person must be an “ordinarily resident” of that constituency or state or Union territory. The concept of ‘ordinary residence’ has not been defined clearly anywhere in the statutes. However, some administrative instructions by the Election Commission and judicial procurements define “ordinary residence.”
Kashmiri women walk past concertina wire laid across a road during restrictions after the scrapping of the special constitutional status for Kashmir by the Centre, in Srinagar, August 20, 2019. Photo: Reuters/Adnan Abidi
In Dr Manmohan Singh vs. the Election Commission of India & Others, the Guwahati high court defined the term ‘ordinary resident’ as a usual and normal resident of that place. The residence must be permanent in character and not temporary or casual and it must be for a considerable time.
According to the verdict, the resident must have an intention to reside there permanently. The Supreme Court has held that the person has to have an intention to stay in that place for a considerable period of time. Based on an interpretation of rulings by courts, the Election Commission has clarified that such a person need not be eating there, but must be sleeping regularly at that place.
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As per ECI guidelines, any document like current passbook, ration card, passport, driving license or income tax assessment order, latest rent agreement, latest water/telephone/electricity/gas connection bill for that address, either in the name of the applicant or that of his or her immediate relation like parents etc. or any post/letter/mail delivered through Indian postal department in the applicant’s name can be used as a proof for establishing the fact of being an ordinarily resident of that place for voter registration.
The poll-body instructions state that homeless persons or those living in sheds or pavement dwellers, who do not possess any documentary proof of ordinary residence are eligible for enrolment in the electoral roll, provided they are ordinarily residing there, irrespective of whether they reside at a private property or pavement. “In such case, the booth level officer will visit the address given in application for enrolment as voter for more than one night to ascertain that the homeless person actually sleeps at the given place,” the ECI said.
According to the poll-body, the students residing as tenants at the place of study will have the option to get themselves registered as electors either at their native places where their parents or guardians reside or at the address of landlord where they are residents for the period they are pursuing their studies. “The courses pursued by the said students should be recognised by central/state govt or boards/universities/deemed universities defined under relevant Acts and such courses should be of not less than one year’s duration,” the ECI states.
However, service voters i.e. members of the armed forces are registered as voters at their native place and not at their place of postings. As per the special election-related safeguards for states or Union territories under The Representation of Peoples Act, a person registered as voter anywhere in the country can contest Lok Sabha elections from any constituency with the exception of three seats – one each in Assam, Lakshwadeep and Sikkim.
A person must be an elector of these constituencies to be able to contest Lok Sabha elections from them. This restriction was not applicable to Jammu and Kashmir as any Indian citizen, registered as a voter in any state or Union territory could contest Lok Sabha elections from the erstwhile state.
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Similarly, Article 371F empowered the parliament to make laws to reserve seats for different communities living in Sikkim. As many as 12 seats were reserved for persons of Sikkimese Bhutia-Lepcha origin, two for Scheduled Castes of castes specified in the Representation of Sikkim Subjects Act, 1974 and one for Sangha (where only monks from registered monasteries in the state could contest elections). Under the special constitutional provisions, MLAs from the Tuensang district of Nagaland were elected by a regional council for a period of 10 years after formation of the State.”