Former bureaucrat Wajahat Habibullah has written to President Ram Nath Kovind, flagging a lacuna in the Jammu and Kashmir Reorganisation Act 2019, which, if not remedied, will result in the non-inclusion of the proposed legislation of the newly-formed union territory of Jammu and Kashmir in the electoral college for Presidential election.
The J&K Reorganisation Act contains no provision to amend Articles 54 and 55 of the Constitution of India for including the proposed legislation of the union territory (UT) of Jammu and Kashmir (J&K) in the Electoral College that will be constituted to vote for your successor in July 2022. If this lacuna is not remedied, the people of J&K will be denied representation in this and successive elections,” Habibullah wrote in his letter to the President.
The letter stated that the lacuna came to light through an RTI application filed by Shubham Khatri, a student of Ashoka University, before the Election Commission of India. Khatri had sought from the poll body a list of the state and union territory legislative assemblies which are part of the electoral college for the election of the President of India. He also asked whether or not the legislative assembly of the union territory of Jammu and Kashmir is a part of the electoral college.
In response to both the queries, the commission merely asked the applicant to refer to Article 54 of the Constitution. However, Article 54 only explicitly mentions the national capital territory of Delhi and the union territory of Puducherry as being eligible for definition under the term 'state' for the purpose of inclusion of their elected members in the electoral college for the election of the President. The inclusion of Delhi and Puducherry in Article 54 was done through a Constitutional amendment in 1992.
Habibullah pointed out that Section 14 of the J&K Reorganisation Act provides for the establishment and the constitution of a 107-member legislature for the UT of J&K, while the UT of Ladakh has no legislature. “To the best of our knowledge, nothing in Section 14 or other provisions of the J&K Reorganisation Act seeks to amend Articles 54 and 55 of the Constitution to include the proposed Legislative Assembly of J&K in the Electoral College that must be constituted to elect the President of India, thus depriving millions of Indians of a say in this vital democratic exercise,” he said.
The former chief information commissioner urged the president to ensure that the government
takes immediate steps for inclusion of the legislative assembly of J&K in the said electoral college through an appropriate legislative device, which he said is indispensable for removing all doubt about the participation of the elected representatives of J&K in the process of electing the President.
“For this, we urge you to have this crucial matter examined by legal experts in your governmentwith the clear direction that suitable remedial action be taken to ensure that the future members of the J&K legislative assembly are not left out of the electoral college that will be convened to elect your successors,” he said.