The recent response of the Election Commission of India (ECI) to a Right to Information (RTI) query about the inclusion of the newly-formed Union Territory of Jammu and Kashmir in the Electoral College for presidential elections has brought an obscure constitutional issue into sharp focus. Amid the discussion, the ECI suggested referring to Article 54 of the Indian Constitution, prompting further examination of this clause and its implications.
The Constitutional Provisions
At the heart of the matter is Article 54, which delineates the constitution of the Electoral College responsible for the election of India’s President. It states that the college consists of elected members from both Houses of Parliament and the Legislative Assemblies of all States, including the National Capital Territory (NCT) of Delhi and the Union Territory of Puducherry. However, no specific mention is made regarding the inclusion of Jammu & Kashmir since its reorganisation as a Union Territory in August 2019.
Any additions to the Electoral College under Article 54 necessitate a Constitutional Amendment with support from two-thirds of Parliament and ratification by over half of the States. This process was followed when Delhi and Puducherry were added to the College via the 70th Constitution Amendment Act in 1992.
The Jammu and Kashmir Reorganization Act
The Jammu & Kashmir Reorganization Act passed in 2019 does not explicitly state whether the legislature of J&K would be eligible to vote in presidential elections. Interestingly though, some experts theorize that a Constitutional amendment might not be necessary for J&K’s inclusion. According to Section 13 of the J&K Reorganization Act, the provisions of Article 239A, which apply to Puducherry, also apply to J&K, potentially paving the way for J&K’s participation.
The Process of Presidential Elections
Indian presidential elections are indirect, conducted via a secret ballot in an Electoral College. The college comprises elected members from both Houses of Parliament, state legislatures, and the legislative assemblies of Delhi and Puducherry. The election operates on a system of proportional representation through a single transferable vote.
Each voter casts one vote but can indicate preferences for multiple candidates. The President serves a five-year term and can be immediately re-elected for an unlimited number of terms. All disputes related to these elections are referred to the Supreme Court, whose decision is final.
The Role of Article 324
Article 324 of the Constitution entrusts the ECI with the task of supervising, directing, and controlling elections to Parliament, state legislatures, and the offices of the President and Vice-President of India. This provision underscores the critical part played by the Commission in maintaining the integrity and transparency of the electoral process.
The question of Jammu & Kashmir’s inclusion in the Electoral College provides an interesting case study of the interactions between constitutional provisions, current legislation, and judicial interpretation in India’s electoral processes.
