BJP's gambit to alter electoral demography in Jammu and Kashmir for poll gains may fall flat

The announcement that outsiders who are ‘ordinarily residents’ of Jammu and Kashmir will be allowed to register as local voters has caused consternation in the Union Territory. ‘Outsiders’, the Chief Electoral Officer explained, will include migrant workers besides security personnel.

In an attempt to soothe nerves, it was later claimed that the 2.5 million additional voters expected to be included in the ongoing electoral roll revision will largely consist of first time voters who have turned 18. No mention was made of security personnel and migrant workers.

Observers point out that the last electoral roll revision, undertaken before the 2019 general election, had added very few new voters, just about 100 in each constituency. What, then, could explain the addition of 2.5 million new voters in the Union Territory?

Estimates of the number of security personnel posted in the UT vary widely—from British ex-diplomat Mark Justin Lyall Grant’s half a million to unofficial figures of a million. The Union government claims a much smaller deployment—of 343,000, including army and paramilitary forces.

While 112,000 soldiers, including 14,000 from the Border Security Force, are deployed at the LoC, an additional 231,000 are posted in other areas of the UT, according to a government document.

There was more than just confusion when the Jammu and Kashmir Chief Electoral Officer announced that security personnel stationed at a ‘peace station’ (Jammu) would be allowed to cast their votes. Observers point out that the entire UT is, in fact, a ‘disturbed area’ since the dreaded AFSPA (Armed Forces Special Powers Act) applies everywhere.

Even otherwise, this move is untenable, says Muhammad Ashraf, a former Law Secretary to the Government of Jammu and Kashmir. The Supreme Court of India has clarified, he points out, that security forces posted at a peace station and living there with their families would be eligible as local voters provided they have resided there for a minimum of three years. With AFSPA generally providing for postings of two-and-a-half years, the ‘minimum three years’ criterion may also not be met, he said.

"In the Neela Gokhale case of 2019, the apex court also observed that “a caveat has been lodged by the Election Commission in its counter-affidavit that said the practice may not be extended to North-eastern states and the state of Jammu and Kashmir, as the same may result in change of demographic character of the constituencies… which in turn may affect the local populace and impact the electoral profile,” Ashraf explained.

According to the Jammu and Kashmir Representation Act, 1957, under the Jammu and Kashmir Constitution, voters had to be 18 and permanent residents of the state. But under the Representation of Peoples Act (of 1950 and 1951) of the Indian Constitution, people who have turned 18 and are ordinarily residents in the constituency, not the state, are eligible to enrol as voters.

Who is an ‘ordinarily resident’?
Section 19 of the Representation of Peoples Act, 1950 states that a person shall not be deemed to be ‘ordinarily resident in a constituency’ merely on the basis of ownership or possession of a house. In the landmark judgment in Manmohan Singh versus Election Commission of India (ECI), Guwahati High Court held that ‘ordinarily resident in a constituency' “shall mean a habitual resident of that place or a resident as a matter of fact as regular, normal and usual course, meaning normal and usual resident of that place.” The residency must be permanent in character, not temporary or casual, the high court held.

The ECI went on to challenge the judgment in the Supreme Court, which upheld the judgment of the Guwahati High Court.

In a commentary published in Business Standard, Bharat Bhushan points out that BJP has already done what it could to tilt the election in its favour. The Jammu and Kashmir Delimitation Commission used criteria other than population to demarcate constituencies. Six of the seven additional constituencies are now in Jammu.

It also changed the boundaries of existing constituencies to the advantage of the BJP. Earlier the ‘state subject’ classification excluded West Pakistan refugees from Assembly elections though they could vote for Parliament. Now they will be able to vote in the Assembly polls. By enrolling around 200,000 migrant workers in the Valley from Uttar Pradesh and Bihar, the BJP hopes to win more seats than earlier. It is also banking on the support of Valmikis brought in from Punjab as scavengers and safai karmachari.

But while the gerrymandering might help the BJP increase victory margins in its Jammu strongholds, observers doubt the party will manage to substantially increase its number of seats. It may even suffer reverses because of the mounting anger among Pandits following continued killings. And migrant workers might not like to risk retaliation by voting in the polls. But those niceties might not deter the BJP from trying to fix the election, observers fear.