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Parties to experts, no clarity on nominated MLAs in J&K House

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CategoryPolity

Last Updated08/10/2024

Exit polls add to apprehension that no group may get clear majority, which would make role of nominated members, who nominates them, and in consultation with whom, crucial

As Jammu and Kashmir faces the possibility of a hung Assembly, concerns have arisen over the nomination of five members to the Assembly by the Lieutenant Governor (LG).
The issue has sparked a legal and political debate, with opposition parties questioning the LG’s authority to make such nominations without the Council of Ministers, while the BJP maintains that the nominations are in line with the Jammu and Kashmir Reorganisation Act.

Exit polls have suggested that no party or coalition may secure a simple majority in the J&K Assembly elections.
The addition of five nominated members, who will have the same voting rights as elected MLAs, could raise the total strength of the Assembly to 95, with a majority mark of 48. This development is crucial as the frontrunner, the National Conference-Congress alliance, is predicted to fall short of this number.

Several opposition leaders, including representatives from the National Conference (NC) and People’s Democratic Party (PDP), have expressed concerns over the LG's authority to nominate members without the advice of an elected Council of Ministers.
Imran Nabi Dar, NC spokesperson, emphasized that nominations should be done by an elected government, citing past precedents. PDP leader Mehboob Beig added that allowing the LG to make such decisions would disrespect the people's mandate.

On the other hand, BJP leaders argue that the J&K Reorganisation Act permits the LG to nominate members without needing the Council of Ministers. Sunil Sethi, BJP’s chief spokesperson in Jammu, referenced the Puducherry model, where the Centre has the power to nominate members.
He further noted that the nomination process would be carried out with the advice of the Union Home Ministry, although the Act does not explicitly state this.

The legal provisions surrounding nominations have evolved since the abrogation of Article 370 and the passage of the J&K Reorganisation Act in 2019. The Act initially allowed the LG to nominate two women members if there was inadequate representation of women in the Assembly.
In 2023, the Act was amended to allow the nomination of three additional members, representing the Kashmiri migrant community and displaced persons from Pakistan-occupied Jammu and Kashmir.

Legal experts are divided on the issue. Former J&K law secretary Mohammad Ashraf Mir noted that while J&K had its own Constitution, the nomination of members required consultation with the Council of Ministers.
However, under the current Reorganisation Act, the LG has discretion over nominations where the state legislature has no authority. Mir believes that the nomination of members is within the LG’s powers.
Conversely, Shariq Riyaz, a lawyer practicing in J&K and the Supreme Court, argues that the LG does not have unilateral authority to nominate members. Riyaz contends that the nomination process falls under the State List in the Seventh Schedule, meaning the LG must act on the advice of the Council of Ministers.