B.L. Saraf
Form “M” is in hot discussion these days. In fact it becomes a subject of discussion and cause for an agitation on the eve of every election. The Form “M” pertains to the migrant community so far as their voting rights are concerned. Well the community considers it a vote cheater. May be rightly so! Therefore, it is time to examine its politico/legal position vis-à-vis the relevant election laws. Before that, a word about alphabet “M”. It has become inextricably linked with the Kashmiri Pandit Community. Having been constantly used as an abbreviation for the exiled tribe the alphabet has, indeed, transmigrated into the soul of Pandits that it has taken over the normal initials of the Community like K and P. The KP has become “M”!
Form “M” has a direct bearing on the voting right of the exiled community. Constitution of India provides for the democratic functions of the Government. For a democratic set up of the governance a right to vote is a sine-quo-non. It is a most sacred right of a citizen to be used at the husting. How well said, the voting is not only a right but a responsibility as well. The decision to vote and actual act of voting are spiritually motivated, because what you intend to achieve by voting is to help infuse higher values in the matter of governance. These matters touch every body’s lives in different ways – social, economic and environmental. Corrine Mclauglin of the U.S. Centre for Visionary Leadership says that the right and the responsibility to vote matters if you care about life, if you care about the life of other human beings. If you care answer the call of your soul to vote. Our vote could help to decide policy on terrorism, war, education and climate change and a plethora of other subjects that touch the life of every individual. Indeed, in no better words can the importance of the vote be emphasized.
The right to vote has, undoubtly, been considered as invaluable in England since 16th Century. To prevent a person to vote in the election would be taken as infliction of actionable injury on the plaintiff, no matter he had suffered no physical harm. A golden rule in the law of Torts came to be crafted as Injuria sine Damano. It means that one may suffer an actionable injury by some act of the defendant though no physical damage is caused to him. This maxim was explained in a celebrated case of Ashbby V/s White. Here the election officers had prevented the plaintiff from casting his vote and they were held liable for the injury caused to the latter. That speaks about the spirit underlying a right to vote. Any violation of it, therefore, amounts to a politico/legal sacrilege.
Seen in this background, the Form “M” effectively prevents a displaced Kashmiri voter to exercise his right of franchise. He is denuded of yet another basic human right. The mischief of the Form “M” is apparent; but what one fails to see is its legal basis. We are not made aware from which provision of law does it emanate and draws the sustenance. Would authorities, that be care to educate us. We know that a voting right depends only on the registration of a voter in the electoral rolls of a constituency.
The J&K Representation of People Act 1957 (Shortly Act hereinafter) envisages two modes of casting of vote by an elector. He could either give it personally in a polling booth set up in a particular constituency u/s 36 of the Act, or he could cast his vote by a postal ballot u/s 70 of the Act, provided his case falls into any of the categories mentioned in this section. Under section 69 a vote is to be cast in the prescribed manner only and not by proxy or any other mode.
Due to the onset of the militancy in Kashmir in early 1990’s, almost entire Kashmiri Pandit community and some persons of other communities had to leave the Valley. They left behind everything, including the Assembly and the Parliamentary Constituencies they belonged to. The security scenario deteriorated to such an extent there that it was felt not safe for the KPs to cast votes in their constituencies in the Valley. So, legal measures came to be devised to protect their valuable right of vote. Accordingly amendments were made to sections 36 and 70 of the Act vide Act IX of 1997. A new section i.e. 36A comprising of two sub-sections and sub-section (c) to the section 70 were inserted. Vide section 36A a provision for establishing polling booths outside a constituency was made for those electors to give votes who for security reasons, were not living within the territorial limits of the constituency. Similarly sub-section (c) to section 70 empowered the Election Commission and the Government to specify a class of people who could give their votes by the postal ballot.
In normal legal course, a migrant elector who opts to utilize facility provided under section 36A would be treated on par with an elector who physically lives in the constituency, which has gone to the polls, and casts vote there. As latter is not required to fill in any form 10 days before polling date, the former too needs to be saved from the bother of running from one place to other to fill up the unnecessary paper so that he could cast his/her vote. There can be no dissimilarity between the two similarly situated persons; well case may be different for those migrant voters who propose to avail facility granted u/sub-section “C” of section 70. He has to follow the same procedure which a similarly situated voter- who is eligible to cast vote by a postal ballot – has to undergo. In that case Rule 27 ‘C’ of MK Conduct of Election Rules 1965 (shortly Rules) would come into play. According to this rule a notified voter who wishes to vote by post has to give intimation to the ARO vide Form 12-C well before the date of polling. This, presumably, is so in order to help him to issue postal ballot to such voter well in time. Form 12-C carries a necessary certificate in part-II, seeking information about certain particulars of a migrant. The manual of J&K Election laws no where` prescribes Form “M” (see eighth edition). However, in substance, Form “M” looks a complete carbon copy of Form 12-C. While as Form 12-C has a legal source in section 70 of the Act and R-27 of the Rules; Form “M” has none.
A plain reading of the relevant provisions of the election law, adumberated to herein before, would make it clear that Form 12-C is required by that voter, only, who intends to avail provision of section 70 and there is no such need for a voter who comes u/s 36A. Unfortunately the State Election Authorities and Relief Commissioner (M) have misread the law and thus mislead the lakhs of electors, depriving them of their valuable right to vote. They seem to have arrogated to themselves the powers of a legislature to superimpose a rule on section 36A, when nothing like it was, even remotely, suggested.
Some may argue what is the harm in filling up the form, which is of innocuous nature. Well, they must know that filling of a simple piece of paper entails lot of movement from a pillar to the post in a hot and humid weather; which would deter even a brave hearted and a committed voter. To find a Gazetted Officer to attest part-II of the Form ‘M’ is no mean a job. When there is a general apathy among the people to queue up for casting a vote, placing hurdles in their way and making the procedure cumbersome for a sincere voter to cast his vote is criminal on the part of the concerned authorities. They should ensure smooth and botherless voting.
There may be a point in the argument of the authorities that proper identification of a voter and his intent to come to the polling booth need to be ascertained. This problem could be effectively solved by issuing photo identity cards to the registered voters. Indeed this is the mandate of Rule 27-A of the J&K Registration of Electors Rules 1966. Apart from that since every Kashmiri Migrant is registered with the Relief Organisations and hooked to a particular relief zone that could be the polling station to cast his vote. If any other formality is required let it be completed in a single window fashion on the date of polling itself.
Let KPs answer the call of their souls. They are left only with it now.
Trending Now
E-Paper
Follow our WhatsApp channel