Sunday, December 10, 2023
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Delayed Assembly Poll- A violation of “Basic Structure” Principle

B L Saraf

Date 24th announced the last week of the month of April, 2023. Normally, there is nothing notable in a date which denotes the beginning of a week or a month. But 24th April has a history behind in as much as on this day , in year 1973, a cloak of invincibility was put around certain features of Chapter 111 of the Constitution of India and citizenry rights triumphed over the possible dictatorial State actions .An inviolability of sorts from the State actions was bestowed on the Fundamental Rights, guaranteed to the Indian citizens by the Constitution which are encapsulated in this chapter .This day has added significance because it marks the golden jubilee of Kesavananda Bharti case where in Supreme Court prescribed the “Doctrine of Basic Structure ” which has now been accepted by the legislature , executive and the people of India and has spread across the Globe .
We leave delicate legal and academic significance to other day and concentrate only on the broader aspects of the ‘Doctrine Of Basic Structure “, to the extent it is germane to J &K’s political atmosphere prevailing today , and see if reading some aspect of the “Doctrine ‘ will help salvage situation and recreate much missed democratic ambience . While deciding the Kesvananda case the Supreme Court concluded ” Parliament cannot alter the basic structure or frame work of the Constitution .” The Judgment, however, did not define what would be the basic structure or the basic features. Now it is well settled that these include principles of federalism, secularism, separation of powers, independence of judiciary and free, fair and period elections. None of these features can ever be taken away by Parliament.

Coming to the Assembly elections ,the UT Chief Electoral Officer said in a interview to local daily (D E , 23 April ) that ” three elections are scheduled in J &K during current financial year namely, Panchayats , Municipalities and Parliament while Assembly polls are due .” Summary revision of voters list is going on. Panchayat and the Municipalities will complete five year term in October – November. While he sounded specific about the calendar of Local Bodies elections such exactness was missing in case of the Assembly election. With respect to the election CEO merely said “they are due.” Well Assembly election is due since 2018. For the last five years the erstwhile state of J & K is without a State Assembly. Therefore, it is time to analyze whether denial of election constitutes a violation of the “Basic Principle “doctrine, when holding of “a periodic, free and fearless “election is an integral component of it.
The election noise was heard soon after the delimitation report came out, year or so ago. After lying dormant for some time the noise has become a bit louder, today, in political circles of the UT. The election , as and when held , will elect ninety odd MLAs which in turn will form a popular Government and relieve JK of the central rule which in one format set in 19th June 2018 when , Sataypal Malik ,the then Governor of J&K , invoked Section 92 of the Constitution of Jammu and Kashmir and assumed ,for himself , the charge of state administration , after BJP withdrew from the Mehbooba Mufti led PDP – BJP coalition Government. The action was initiated for the reason, now, well known which certainly not the one set was forth as a prelude to the action.
With the expiration of stipulated time period prescribed by Section 92 of J&K constitution provisions of Article 356 of the Union Constitution were resorted to and the state came under President’s rule . The arrangement lasted till 31st October ,2019 where after , in consequence of coming into the effect of The Jammu And Kashmir Reorganization Act 2019 ( Act shortly ) , state got bifurcated into two Union Territories with both coming directly under the administration of Ministry Of Home Affairs , GOI . President’s rule was revoked and to continue with the arrangement Art 239 of the Constitution and Sec 73 of the Act were pressed into the service. As things show up there seems to be no end to the prevailing situation – at least not in near future as CEO’s interview would indicate. We may continue being denuded of full citizenry rights and bereft of a democratic Government in whose making one could have played some part.
In the autumn of the previous year the HM Amit Shah said that security situation has improved and it was for the Election Commission to take a call on holding Assembly election in J&K. L G Sinha echoed same sentiment. Before that – a year ago – the HM Amit said in a TV interview that in J &K Assembly Elections will be held within 6 to 8 months after delimitation report is available. The report is available for quite a time now. It is no secret that in case of J &K MHA has the last word. Election Commission, with all the pretence of autonomy, falls in line.
Security situation in J&K has not improved to the satisfactory levels. Civilians die, as do the security men get martyred. Latest terrorist attack on the military truck in Poonch area which resulted in martyrdom of five army personnel demonstrates the point .Surely the ground situation is far from instilling confidence in the mind of an ordinary resident that he can breathe peacefully in Kashmir. Security forces are on the streets, Kashmiri Pandits continue to languish in camps outside the Valley and people live fear stricken.
The situation, however, is not as worse as it was in 1996 to 2014 when Assembly elections were held at regular intervals. If local body elections can be held there is no reason for withholding Assembly poll. But then one has to contend with the political angle. That election wise J&K doesn’t provide a low hanging fruit for the rulers at Delhi to pluck. If Karnataka Assembly election doesn’t go their way would they risk assembly election in Kashmir going same route?
Signals coming from the Valley reveal that resentment is growing against the Central Government for delaying Assembly election. G OI has readymade reasons to explain the delay. Upcoming Amarnath Yatra will consume better part of the summer 2023, besides stretching security forces to the limit. Autumn will see holding of G 20 meeting in Delhi. This will be the period when no Government in Delhi can afford any misadventure in J&K. Thereafter, preparations for 2024 General Election will get underway, pushing JK Assembly elections farther. Under these circumstances it looks unlikely that “Basic Structure “imperatives will weigh over political considerations of the ruling class.

(The author is former Principal District & Sessions Judge)

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