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Indian Express
a day ago
- Politics
- Indian Express
J&K nominated MLAs: Centre says ‘no bearing or co-relation with formation of govt'
THE Centre has described the power vested in the Jammu and Kashmir Lt Governor to nominate five members to its Legislative Assembly as 'discretionary', and exercisable by him without the aid and advice of the Council of Ministers in the Union Territory. In an affidavit in the Jammu & Kashmir and Ladakh High Court, the Union Home Ministry has also said that this nomination has 'no bearing or co-relation with the formation of the government'. The affidavit was in response to a question framed by the court as to whether Sections 15, 15-A and 15-B of the Jammu & Kashmir Reorganization Act, 2019, providing for nomination of members to the UT's Legislative Assembly over and above its sanctioned strength – which could potentially convert a minority government into a majority government, and vice-a-versa – were in violation of basic structure of the Constitution. Senior Congress leader and its chief spokesperson Ravinder Kumar Sharma had filed a PIL in the High Court, challenging the provisions. Just before results were declared for the first elections held to the J&K Assembly following the abrogation of Article 370, in October 2024, non-BJP parties had expressed apprehension over the L-G's powers to nominate members. This fear was accentuated by claims of a BJP leader that all five would be BJP leaders, and that L-G Manoj Sinha would name them in consultation with the Centre. Opposition parties had demanded that the nominations be made only on 'the aid and advice' of the government that was due to take over, and not precede it. With five nominated members, the strength of the J&K Assembly would be 95, making the majority mark 48. It was feared that the Opposition would not reach this mark, and the BJP would tilt the scales in its favour with the nominated MLAs. Eventually, however, the L-G did not make any nominations before the results, and the National Conference-Congress combine won with 47 MLAs (NC 41 and Congress 6), apart from enjoying the support of four Independents and a CPI(M) MLA. In its affidavit in the High Court, the Union Home Ministry has noted that while Section 15 was part of the original 2019 Reorganization Act, Sections 15A and 15B were added through an amendment in 2023. Section 15A empowers the Lt Governor to nominate two members, one of whom shall be a woman, from the Kashmiri migrant community, while Section 15B provides for nomination of one member from persons displaced from Pakistan Occupied Jammu and Kashmir (PoJK). Speaking about Section 15, the Centre's affidavit says that the provision in it for nomination of two women MLAs was similar to an Article in the Constitution of the erstwhile J&K state, before its special status was scrapped. Then the Governor had the power to nominate up to two women members if women were not adequately represented in the Assembly. '(It) is an act of affirmative action, in support of promoting and ensuring female representation.' A 'plain reading' of the statute shows that 'it is a nomination which is to take place at any juncture post-elections, and has no bearing or co-relation with the formation of the government, inasmuch as the standard in the section is representation of women in the Assembly, and not in the government', says the affidavit. On Section 15A, the affidavit refers to the Supreme Court's verdict upholding the abrogation of Article 370 in which Justice Sanjay Kishan Kaul wrote an epilogue on the migration of Kashmiri Pandits. 'In order to move forward, the wounds need healing… The first step towards this is to achieve a collective understanding of the human rights violations perpetrated both by State and non-State actors, against peoples of the region,' Justice Kaul wrote. The Centre's affidavit says that it is a matter of record that multiple regions of Kashmir have remained disturbed for decades, leading to extensive displacement of civilians. 'Accordingly, the nomination of two members from the Kashmiri Migrant community under Section 15A serves the objective of providing them with adequate representation, ensuring their voice is heard in the legislative process, and safeguarding their rights and interests,'' it says. Similarly, the affidavit talks of Section 15B providing representation to those displaced from PoJK, in 1947 and during the India-Pakistan wars of 1965 and 1971. 'It is evident that displacement of these communities prevents them from their democratic participation… thereby necessitating the appointment of a nominated representative to ensure that their interests are not entirely excluded from governance.' Therefore, the affidavit says, the legislative intent behind these provisions is 'well-founded in law and equity', ensuring that voices of the displaced are neither ignored nor marginalised. On whether the J&K Lt Governor has to act on the aid and advice of the Council of Ministers or has discretionary powers to nominate the five members, the affidavit says that this stands conclusively settled with respect to the Assemblies of both Puducherry and the Municipal Corporation in NCT of Delhi – the other two UTs with Assemblies. Sections 15, 15A and 15B specifically recognise the authority of the Lt Governor to nominate Assembly members, the affidavit says, adding that there can be no doubt that he has to exercise this duty in his discretion as a statutory functionary and not as an extension of the government – and thus, act without aid and advice of the Council of Ministers.
The Hindu
3 days ago
- Politics
- The Hindu
J&K Assembly's nominated seats outside the realm of govt., L-G has statutory powers: MHA
The Union Ministry of Home Affairs has informed the Jammu and Kashmir High Court that the Union Territory's Lieutenant-Governor can nominate five members to the J&K Legislative Assembly without the government's 'aid and advice'. It said the office of the Lieutenant-Governor was not an extension of the government. The Ministry said that the nominations were 'outside the realm of the business of the elected government of J&K'. 'Once the Parliament bylaw recognises the Lieutenant-Governor as a distinct authority from the government of Union Territory under Parliamentary enactment, it necessarily follows that when a power is conferred upon the Lieutenant-Governor, then the same must be exercised as a statutory function and not as an extension of his duties as the head of the UT Government.... there can be no manner of doubt that it is the Lieutenant-Governor who has to exercise this statutory duty in his discretion, as a statutory functionary and not as an extension of the government, thus, without aid and advice,' the MHA's affidavit in court said. The powers to nominate three members -- two Kashmiri migrants, including a woman, and one member from the Pakistan-occupied-J&K (PoJK) community -- to the Assembly was inserted in 2023 with an amendment to the J&K Reorganisation Act, 2019 by the Parliament. The 2019 Act also provided for nomination of two women to the Assembly if in the opinion of the Lieutenant-Governor, women are not adequately represented in the Assembly. The amendment was challenged through a public interest litigation (PIL) filed by Congress leader Ravinder Kumar Sharma. While hearing the petition, the High Court on October 21, 2024 had sought a reply from the Union government on the changes to the 2019 Act. 'Whether Sections, 15, 15-A and 15-b of the J&K Reorganisation Act, 2019, making provision for nominating the members of Legislative Assembly over and above the sanctioned strength of the Legislative Assembly, and which have the potential of converting the minority government into a majority government and vice versa, is ultra vires the Constitution being in violation of basic structure of the Constitution?' it had asked. The 2023 amendment had increased the total number of seats to 119 from the existing 114. The government had kept 24 seats vacant for the PoJK areas. In the affidavit filed on July 24, the MHA said the 'present writ petition has become academic as the scenario contemplated did not arise'. It said that 'the interpretation of Section 12 of the Union Territories Act, 1963 would pari materia apply to Sections 15, 15A and 15B of the J&K Reorganisation Act and accordingly, the nominations so made, would be made without the aid and advice of the Council of Ministers, being outside the realm of the business of the elected government of J&K.' The MHA said that the petitioner had failed to substantiate the claim that the nominations made under the J&K Reorganisation Act, 2019 exceed the sanctioned strength of the Legislative Assembly, while those under the Government of Union Territories Act, 1963, do not. 'The Petitioner has not provided any cogent legal basis or statutory interpretation to support such a distinction, and the submissions in this regard remain misconceived and unsustainable in law,' the MHA said. It added that Section 14(3) of the 2019 Act 'does not provide the total strength of the Legislative Assembly; but merely provides the number of directly elected members to such Legislative Assembly'. 'The sanctioned strength of the Assembly, therefore, is not 114, but 114 + all members nominated in terms of Sections 15, 15A and 15B,' the MHA said. It further said that the fallacious statutory interpretation of the petitioner was to be cross-applied to the Union Territory of Puducherry, then as per such reading, the total strength of the Assembly of Puducherry under Section 3(2) of the 1963 Act would be 30. 'Whereas, as per his own case, the sanctioned strength of the Legislative Assembly for the UT of Puducherry has been stated to be 33, i.e. 30 +3,' MHA said. The case is scheduled for hearing on August 14. The election to the 90-seat J&K Assembly was held in September-October 2024 and the results were declared on October 8, with the National Conference-Congress alliance sweeping the polls.
