Context:

• Recently, in response to a Right to Information (RTI) query regarding whether Jammu and Kashmir would be part of the Electoral College for Presidential elections, the Election Commission of India (ECI) directed individuals to refer to Article 54. This response highlights the ongoing ambiguity surrounding Jammu and Kashmir’s status in this electoral process.

Key Points:

Applicability of Article 54 to Jammu and Kashmir

• Article 54 of the Indian Constitution outlines the process for electing the President of India, specifying that the President is elected by an Electoral College composed of elected members from both Houses of Parliament and the Legislative Assemblies of States, as well as from the Union Territories of Delhi and Puducherry.
• The recent political changes in Jammu and Kashmir  have raised significant questions regarding the applicability of this article to the newly formed Union Territory.
• Following the abrogation of Article 370 in August 2019, which granted special status to Jammu and Kashmir, the region was reorganized into two Union Territories: Jammu & Kashmir and Ladakh. The Jammu and Kashmir Reorganisation Act, 2019, enacted during this transition, did not explicitly address whether J&K would be included in the Electoral College for presidential elections.

Key provisions of Article 54

1. Electoral College composition:
   • Article 54 specifically mentions that the President is elected by an Electoral College consisting of:
     • Elected members of both Houses of Parliament.
     • Elected members of the Legislative Assemblies of all States.
     • Elected members from the Union Territories of Delhi and Puducherry.
   • Notably, there is no mention of Jammu and Kashmir in this context.
      
2. Legislative Silence:
   • The Jammu and Kashmir Reorganisation Act does not clarify whether Jammu and Kashmir’s legislature can participate in presidential elections. This absence raises questions about its representation at the national level.
      
3. Constitutional Amendment requirement:
   • To include new members like Jammu and Kashmir in the Electoral College under Article 54, a constitutional amendment is necessary. This requires a two-thirds majority in Parliament along with ratification by over 50% of the States.
   • Historical context shows that Delhi and Puducherry were included as Electoral College members through the 70th Constitutional Amendment Act of 1992, which amended Article 54 to reflect these changes.

However, some legal experts in this regard have argued that Jammu and Kashmir could still participate in presidential elections without a formal Constitutional Amendment. They reference Section 13 of the Jammu and Kashmir Reorganisation Act, which states that provisions applicable to "Union territory of Puducherry" under Article 239A will also apply to "Union territory of Jammu & Kashmir." This interpretation suggests that existing legislative frameworks could facilitate Jammu and Kashmir’s inclusion in the electoral process.