Sakal Bhushan
Under the Jammu and Kashmir Reorganisation Act, the Legislative Assembly of the Union Territory of Jammu and Kashmir has 90 seats. The Lieutenant Governor of the UT has power to nominate two women, two Kashmiri migrants (one of whom shall be a woman) and one PoJK displaced person to the Legislative Assembly, thereby increasing the total strength to 95. For clear majority in the Legislative Assembly, the crucial number is thus 48. Had the BJP got 43 seats as against 47 by the other parties, the question of nomination of five members to the Legislative Assembly by the LG would have assumed significance because addition of five members to their kitty would have increased their number to 48, thus getting them a clear majority for formation of the Government. But since in the recently concluded elections the BJP secured only 29 seats, this question hardly assumed any importance. That appears to be the reason that the LG did not make any nominations contrary to the rumours which were circulating before the declaration of the election results.
But even then the Spokesperson of the Indian National Congress filed a petition before the Supreme Court challenging the power of the LG to make the nominations without the aid and advice of the Council of Ministers which was yet to be sworn in. However the Supreme Court refused to entertain the said Petition filed directly in Supreme Court without first approaching the High court. And now the controversy has landed before the High Court.
The power of the LG to make these five nominations emanates from Sections 15, 15A and 15B of the Jammu and Kashmir Reorganisation Act and no restriction can be found on this power in those Sections. Moreover, Section 53 provides that there shall be a Council of Ministers with the Chief Minister at its head to aid and advice the LG in exercise of his functions only “in relation to matters with respect to which the Legislative Assembly has the power to make laws”. It is clear from a plain reading of this Section that the requirement of aid and advice of the Council of Ministers is limited only to such matters which fall within the legislative competence of the Assembly. By no stretch of imagination, the power of the LG to nominate five members to the Legislative Assembly falls within the category of matters with respect to which the Legislative Assembly has the power to make laws. Therefore, this power of the LG is totally discretionary.
It may be of interest to note that a similar power is vested in the Governor of a State to make nominations to the Legislative Council of the State (wherever constituted) under Article 171 of the Constitution of India. However, Article 163 provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions. Unlike Section 53 of the Jammu and Kashmir Reorganisation Act, the requirement of aid and advice of the Council of Ministers “in relation to matters with respect to which the Legislative Assembly has the power to make laws” is not contained in Article 163. Similar is the position of law in respect of the power of the President to make nomination of twelve members to the Rajya Sabha under Article 80 read with Article 74 of the Constitution of India.
The Irresistible conclusion which can be arrived at by the comparative analysis of the above-quoted provisions of the Jammu and Kashmir Reorganisation Act and the Constitution of India is loud and clear that the power of the LG of the UT of Jammu and Kashmir to nominate five members to its Legislative Assembly is absolutely discretionary unlike the powers of the Governors of the States and the President of India to nominate members to the Legislative Councils (wherever constituted) and the Rajya Sabha respectively.
This conclusion draws further support from the legal position prevalent in the context of the Union Territory of Puducherry. Section 13 of the Jammu and Kashmir Reorganisation Act makes the provisions contained in Article 239A of the Constitution of India with respect to Puducherry applicable to the UT of Jammu and Kashmir also. In exercise of the legislative powers vested in Article 239A of the Constitution of India, the Parliament had enacted the Government of Union Territories Act, 1963. Section 3(3) of the said Act empowers the Central Government to nominate three persons to the Legislative Assembly of the UT. The Central Government headed by BJP in exercise of the said power had nominated three members to the Puducherry Legislative Assembly in 2017 without the aid and advice of the Council of Ministers of Puducherry headed by Indian National Congress. The said action of the Central Government came to be challenged before the Madras High Court which upheld the said action and this decision was further confirmed by the Supreme Court in 2018 in case titled K. Lakshminarayanan v. Union of India. As late as in August 2024, the Supreme Court in case titled Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi also upheld the action of the LG of the UT of Delhi to nominate aldermen to the Municipal Corporation of Delhi without the aid and advice of the Council of Ministers of Delhi. In this background, the fate of the challenge being thrown to the power of the LG of the UT of Jammu and Kashmir to nominate five members to its Legislative Assembly is quite predictable.
(The author is a Delhi-based lawyer hailing from J&K)
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