Explaining row over Lt Governor's power to nominate 5 members to J&K Assembly

Political parties have expressed concerns over Lieutenant Governor Manoj Sinha's authority to nominate five members to the Jammu and Kashmir Assembly.

In Short

• Exit poll predicts hung Assembly in Jammu and Kashmir
• Assembly majority mark rises to 48 if 5 members are nominated
• Nomination rules amended in 2023 to include Kashmiri migrants

The exit polls for Jammu and Kashmir predicted a hung Assembly with an edge to the National Conference-Congress alliance. With the results for the Jammu and Kashmir Assembly election to be out tomorrow, attention is now turning to Lieutenant Governor Manoj Sinha’s authority to nominate five members to the Assembly — a move that could tilt the balance of power in a politically fractured House.

With parties raising concerns about the implications of this nomination process, questions arise over what role these appointed members will play and the legal framework governing their selection.

WHAT WILL BE THE MAJORITY MARK?

The Lieutenant Governor has the power to nominate five members to the Union Territory’s assembly. If the five members are nominated, the Assembly strength will expand to 95 members, increasing the majority mark for government formation to 48 seats.

HOW NUMBER OF NOMINATED MEMBERS WENT UP?

The Jammu and Kashmir Reorganisation Act, 2019 specified that the Lieutenant Governor may nominate two members to the Legislative Assembly to give representation to women, if in his opinion, they are not adequately represented.

The Act was further amended in 2023. After the amendment, the Lieutenant Governor now has the power to nominate three more members to the Assembly. According to the

The Jammu and Kashmir Reorganisation (Amendment) Bill, 2023, which was cleared by Parliament in December 2023, the Lieutenant Governor may nominate not more than two members, one of whom shall be a woman, from the community of Kashmiri Migrants, to the Assembly. The Bill adds that the Lieutenant Governor may also nominate to the Assembly one member representing displaced persons from Pakistan-occupied Kashmir (POK).

CAN LT GOVERNOR NOMINATE MEMBERS ON HIS OWN?

The Indian Express, in its report, cited former Jammu and Kashmir Law Secretary Mohammad Ashraf Mir as saying, “There is (the J&K) Reorganisation Act, and it states that the L-G will act on the aid and advice of ministers in respect to matters where the state Legislature has the power to make laws. The rest is within his discretion.”

According to Mir, the issue of nomination is “not within the powers or competence of the elected Assembly”, meaning the Lieutenant Governor had the discretion to nominate members to the Assembly.

The report cites another expert, Shariq Riyaz, saying that the Lt Governor does not have the power to unilaterally nominate members to the Legislative Assembly. "This is covered by a direct entry to the State List under the Seventh Schedule, as per which he has to act only on the ‘aid and advice’ of the Council of Ministers. Any misadventure must be interdicted in courts," Riyaz said.

Riyaz emphasised the crucial distinction between Jammu and Kashmir's status and that of Puducherry, responding to comparisons between the two regions. "Puducherry was always a Union Territory, while J&K was a state that has been reorganised as a UT," he explained, underscoring the significance of this change.

He further pointed out a key difference in the nomination process, noting that "in Puducherry, the Act states that the nomination of members will be by the Centre," whereas "the J&K Reorganisation Act states that the LG will nominate," highlighting the varied frameworks governing each region.

CONFUSION OVER VOTING RIGHT

The nominations are at the discretion of the Lieutenant Governor as per the Jammu and Kashmir Reorganisation Act, but whether these members will have voting rights and can participate in government formation or vote of no confidence remains unclear.

WHAT SUPREME COURT SAID ON NOMINTAED MEMBERS IN PUDUCHERRY

In Puducherry's Legislative Assembly, three nominated members hold the same rights as elected MLAs, including voting privileges.

The issue arose in 2018 when the BJP-led Centre nominated three party members to the Puducherry Assembly. This nomination was contested in the Madras High Court on the grounds that the government of the Union Territory had not been consulted. However, the court upheld the Centre’s decision, finding no legal violation in the nomination process. The case was then taken to the Supreme Court, which settled two key issues in its December 2018 ruling.

Firstly, the Supreme Court clarified that under the 1963 Union Territories Act, the Centre is not obligated to consult the Union Territory government when nominating MLAs to the Puducherry Assembly.

Secondly, the court ruled that there is no distinction between nominated and elected MLAs under the same law. Nominated members enjoy equal voting rights on all matters, including critical decisions such as trust votes, no-confidence motions, and the Budget.

WHAT POLITICAL PARTIES ARE SAYING?

BJP's Jammu and Kashmir unit spokesperson Sunil Sethi said, “This law is very clear right from 2019. Political parties objecting to the powers of nominated members have neither read the Constitution nor the Jammu and Kashmir Reorganisation Act. If they have a problem with this, they should not participate in elections.”

Congress General Secretary Ghulam Ahmed Mir said, "Nominating MLAs with intent to favour a party is unconstitutional, and no court will allow it, the nomination process should be apolitical, you should get scholars, social workers without any party affiliation".

National Conference leader Rattan Lal Gupta said, “This move is unconstitutional and undemocratic. Such powers lie solely with an elected government and cannot be exercised by the L-G in the absence of an elected body. All legislative powers, including the authority to nominate MLAs, shift to the government after elections”.