Legal experts have divergent views on whether Jammu and Kashmir lieutenant governor can nominate five MLAs at the time of government formation or at a later stage on the aid and advice of the council of ministers.
Jammu and Kashmir has 90 assembly seats for which elections were held in three phases and poll results are scheduled to be declared on Tuesday.
The five members to be nominated by the LG will take the effective strength of the assembly to 95, where 48 would be the majority mark.
The LG’s power to nominate these five MLAs assumes significance in wake of the exit polls predicting a hung assembly in the Union territory and a vexatious question arises whether nominated MLAs will have a role in deciding the majority in the House.
On being asked about the LG’s power to nominate five members and whether it can be exercised without the aid and advice of the council of ministers, former judge of Delhi High Court Justice (retd) S N Dhingra said one has to wait for the actual results of the election and the issue at this stage is premature.
“We can wait for the actual results as this question is dependent on the outcome,” Justice Dhingra told media.
On the issue, senior advocate Gopal Sankaranarayanan said the Centre should not be interfering in the political process in the UT as such actions bury the functioning of the elected governments.
Supreme Court advocate Ashwani Kumar Dubey referred to the 2018 judgement of the apex court which had upheld the Centre’s decision to nominate three members to Puducherry Assembly by the then LG Kiran Bedi.
He, however, said the Jammu and Kashmir Reorganisation Act 2019, which was amended in 2023, was “unclear” over the issue whether the nominated MLAs will have a role in the government formation.
In response to a question whether the power of Jammu and Kashmir’s LG to nominate five MLAs has to be guided by the aid and advice of the council of ministers, senior advocate Sankaranarayanan said this was answered by the top court in the context of Puducherry being a UT and property of the Union.
“As far as Kashmir is concerned, once the Supreme Court has decided to accept the solicitor general’s statement that it will be reverted to full statehood, this question cannot apply. It was conceded that the conversion of a state to a Union Territory is impermissible, and so Kashmir cannot be likened to Puducherry,” he said.
“In any event, it is about time that this kind of political interference by the Centre with the functioning of elected governments is given a proper burial. We have seen how administration in Delhi and Puducherry has come to a standstill, seriously affecting the rights of citizens,” the senior lawyer said.
Referring to the Jammu & Kashmir Reorganisation Act and Article 239A of the Constitution, Supreme Court advocate Dubey said the Act provides for nomination of five members — two women, two from migrant community and one from POJK refugees – to state assembly.
“But it is ‘unclear/silent’ on the issue of nominated members’ voting rights during ‘government formation or vote of no confidence’,” he said, adding, the provision came when there was no assembly existing in the UT.
Referring to the 2018 verdict in the Puducherry case, he said it was held that the Union government is not required to consult the state for nominating members to the assembly and the nominated members have the same right to vote as the elected members.
The J&K Assembly is modelled on the Puducherry Assembly where three nominated members function at par with elected MLAs and have voting rights.