New Delhi, Oct 7: The question of whether the Lieutenant Governor (LG) of Jammu and Kashmir has the authority to nominate five Members of the Legislative Assembly (MLAs) at the time of government formation or subsequently on the advice of the Council of Ministers has sparked a debate among legal experts. This issue has gained attention amidst the upcoming declaration of election results for the Union Territory’s 90 assembly seats, which were conducted in three phases, with results expected on Tuesday.
If the LG nominates these five members, the total strength of the Jammu and Kashmir Assembly would increase to 95, with 48 being the majority mark required to form a government. This power has become particularly significant due to predictions of a hung assembly, leading to the question of whether these nominated MLAs could play a role in determining the majority in the House.
On the legality of the LG’s authority to nominate these MLAs, particularly without the aid and advice of the Council of Ministers, opinions vary. Former Delhi High Court judge Justice (Retd) S N Dhingra suggests that it is premature to address the issue before the actual election results are revealed. “We can wait for the actual results as this question is dependent on the outcome,” Justice Dhingra stated.
Meanwhile, senior advocate Gopal Sankaranarayanan argued that the Centre’s interference in the Union Territory’s political process undermines the proper functioning of elected governments. He expressed concerns that such actions if allowed, could lead to a prolonged period of political uncertainty.
Supreme Court advocate Ashwani Kumar Dubey cited the 2018 Supreme Court judgment that upheld the Centre’s decision to nominate three members to the Puducherry Assembly by the then LG Kiran Bedi. However, Dubey noted that the Jammu and Kashmir Reorganisation Act of 2019, amended in 2023, remains ambiguous on whether the nominated MLAs would have voting rights during government formation.
Senior advocate Sankaranarayanan further argued that the Supreme Court’s acceptance of the Solicitor General’s statement—that Jammu and Kashmir would eventually be restored to full statehood—means that the scenario in Jammu and Kashmir cannot be equated with that of Puducherry. He asserted that the conversion of a state into a Union Territory is constitutionally impermissible, thereby distinguishing Jammu and Kashmir’s situation from other Union Territories like Puducherry. He called for an end to what he described as political interference by the Centre in state governance, highlighting the administrative paralysis witnessed in Delhi and Puducherry due to similar central actions.
Referring to the Jammu and Kashmir Reorganisation Act and Article 239A of the Constitution, Dubey explained that the Act provides for the nomination of five members to the state assembly: two women, two from the migrant community, and one from Pakistan-occupied Jammu and Kashmir (PoJK) refugees. However, he emphasized that the Act is “unclear” on whether these nominated members would have voting rights during critical legislative processes such as government formation or a vote of no confidence. He added that the provision was introduced when no legislative assembly was in existence in the Union Territory, leaving the current applicability in question.
Dubey also drew parallels with the 2018 Supreme Court ruling on Puducherry, where it was determined that the Union government did not need to consult the state government when nominating members to the assembly and that these members would have voting rights equal to those of elected MLAs. He suggested that similar legal principles might be applicable in Jammu and Kashmir unless explicitly contradicted by subsequent legal interpretations or legislative amendments.
Political parties, including the Congress, the National Conference, and the People’s Democratic Party (PDP), have voiced their opposition to the nomination of the five members before government formation, arguing that it undermines the democratic process. They contend that such nominations should occur only on the aid and advice of a fully constituted council of ministers.
The backdrop of this debate includes the 2019 abrogation of Article 370, which removed Jammu and Kashmir’s special status and divided the state into two Union Territories. The J&K Assembly, now structured similarly to the Puducherry Assembly, allows for the nomination of members who function with the same privileges as elected representatives, including voting rights.
As election results approach, the interpretation and application of the LG’s power to nominate MLAs could become a critical factor in determining the political balance of power in the Union Territory. The issue is likely to attract further legal scrutiny and political debate as stakeholders await clarity on how these nominations might influence the formation of a government in Jammu and Kashmir.