With Jammu and Kashmir Assembly election results due Today (Oct 8), the question of whether Lieutenant Governor Manoj Sinha can nominate five members to the UT Assembly, increasing its strength from 90 to 95, is a key concern. The BJP, NC, and Congress hold differing views on this. In the event of a fractured verdict, the L-G’s power to nominate these members could significantly impact government formation.
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INDIA: As the Jammu and Kashmir Assembly election results are set to be announced Today, one major question looms large:
Can Lieutenant Governor Manoj Sinha exercise his authority to nominate five members to the House, thereby increasing its strength from 90 to 95?
This has sparked a debate, with the Bharatiya Janata Party (BJP), National Conference (NC), and Congress offering different viewpoints on the matter.
In the event of a fractured mandate, as predicted by many pollsters, the Lieutenant Governor’s ability to nominate these five members could play a crucial role in shaping the government formation.
This decision has the potential to alter the balance of power, ultimately determining which party or coalition may secure the majority needed to form the government.
Legal Provisions: J&K Reorganization Act 2019
The Lieutenant Governor’s authority to nominate members is grounded in Section 15 of the Jammu and Kashmir Reorganization Act, 2019, which grants the L-G the power to nominate five members to the Assembly.
These nominated members include two women, two Kashmiri migrants (with at least one woman), and one person displaced from Pakistan-occupied Jammu and Kashmir (PoJK) under Section 15A and Section 15B.
Once the election results are declared, the L-G is expected to notify the constitution of the Jammu and Kashmir Assembly and nominate these five members, which will increase the House’s total strength to 95 members.
Consequently, the majority needed to form the government would be 48 MLAs.
A Question of Discretion: Can the L-G Act Independently?
A significant legal debate centers around whether the Lieutenant Governor can nominate these five members independently or if he is required to act on the “aid and advice” of the newly formed Council of Ministers.
This question brings into focus recent judicial precedents that could provide insight.
In a landmark 2018 judgment by the Supreme Court, regarding the nomination of members to the Legislative Assembly of Puducherry, and another recent ruling on the nomination of Aldermen to the Municipal Corporation of Delhi (MCD), the Court affirmed the L-G’s discretionary power.
According to these rulings, L-G Manoj Sinha has the discretion to nominate five members to the Jammu and Kashmir Assembly without needing to consult the Council of Ministers.
Key Judicial Precedents
“In Puducherry, where the governance continues to be regulated by Government of Union Territories Act, 1963, the Central Government, through Lt Governor, acting as the nominee of the President and Administrator under Article 239, has power to nominate three members in the Legislative Assembly,”
-explained senior advocate Sanjay Jain, who had represented the Puducherry L-G in this case.
“On the same lines, the Lt Governor of Delhi under Delhi Municipal Corporation Act has discretionary powers to nominate Aldermen to Municipal Corporation of Delhi. Such nominations do not require the aid and advice of the elected governments of the union territory, and this aspect has been upheld by the Hon’ble Supreme Court in respect of both enactments. Such nominated members of Puducherry have powers to vote on a par with the elected legislators on all issues including motions of budget or that of no confidence,”
– Jain added.
He also clarified, however, that while MCD Aldermen do not have the authority to participate in or vote on motions within the House, they do hold a limited voting power for Ward Committees, without the right to contest in elections.
On December 6, 2018, the Supreme Court upheld Puducherry Lt Governor Kiran Bedi’s decision to nominate three Members of the Legislative Assembly (MLAs) to the Assembly of the Union Territory. A three-judge Bench, led by Justice AK Sikri (since retired), dismissed Congress party’s petitions challenging the nominations made on behalf of the Central Government under Section 3(3) of the Government of Union Territories Act, 1963.
Similarly, a three-judge Bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala ruled on August 5, 2023, in favor of Delhi Lt Governor VK Saxena’s decision to nominate 10 members to the MCD.
The Supreme Court asserted that the Delhi Lt Governor can act independently in nominating aldermen to the MCD and is not obligated to follow the advice of the Delhi Council of Ministers, led by the Chief Minister.
The Court explained that the power to nominate aldermen is a statutory power conferred upon the L-G by Parliament and distinguished this statutory power from the executive functions usually requiring the aid and advice of elected representatives.
Conclusion: Legal Precedent Backs L-G’s Discretion
As Jammu and Kashmir await the election results, the Lieutenant Governor’s discretionary power to nominate five members to the Assembly could significantly impact the political landscape, especially in the case of a split mandate.
Citing the judicial precedents set by the Supreme Court, L-G Manoj Sinha is likely empowered to nominate the five members independently. This legal backing could give the L-G a pivotal role in shaping the post-election dynamics in Jammu and Kashmir.
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