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.