Lacuna in J&K Act red-flagged

No provision to allow representatives to participate in Prez Polls, says former CIC

Former Chief Information Commissioner (CIC) Wajahat Habibullah has written to President Ram Nath Kovind flagging a “Constitutional lacuna” in the enactment of the Jammu and Kashmir Reorganisation Act saying it has no provision to allow representatives of the two new UTs — J&K and Ladakh — to participate in the President’s election.

In his letter to the President, Habibullah, who has long served in J&K as a bureaucrat, has drawn attention to a “significant Constitutional lapse” saying the J&K Reorganisation Act contains no provision to amend Articles 54 and 55 of the Constitution of India for including the proposed Legislature of the Union Territory (UT) of Jammu and Kashmir in the Electoral College that will be constituted to elect next President in July 2022.

“If this lacuna is not remedied, the people of J&K will be denied representation in this and successive elections,” wrote Habibullah in his capacity as the Chairperson of Commonwealth Human Rights Initiative (CHRI).

CHRI is an NGO with special consultative status with the economic and social council of the United Nations.

He cited a news report related to a query filed by Shubham Khatri, a student of Ashoka University, through The Right to Information Act, 2005 in this regard.

Article 54 of the Constitution provides for the manner of election to the office of the President of India. The members of the electoral college who are eligible to vote in the President’s election are listed and the procedure for such election is prescribed in Article 55 of the Constitution.

Article 54 was amended in 1992 to include the Legislative Assemblies of the UTs of Delhi and Pondicherry in the Electoral College. However, with regard to J&K and Ladakh that has not happened so far. Though the J&K Reorganisation Act does say that the provisions contained in Article 239A, which are applicable to “Union territory of Puducherry”, shall also apply to the “Union territory of Jammu and Kashmir”. Article 239A gives Parliament the power to by law create a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory.

Habibullah underlined that while 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, 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,” Habibullah said and urged the government take immediate corrective steps.

“We urge you to have this crucial matter examined by legal experts in your government with 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,” the former CIC wrote.