Nomination powers in J&K same as Puducherry, Delhi
Cites several SC rulings, dubs PIL politically motivated
Neeraj Rohmetra
JAMMU, Aug 11: In a detailed preliminary affidavit filed in the High Court, the Union Ministry of Home Affairs (MHA) has taken the legal position that the Lieutenant-Governor of the Union Territory of Jammu & Kashmir can nominate members to the J&K Legislative Assembly in his statutory discretion without the aid and advice of the Council of Ministers, being outside the realm of business of the elected Government.
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Citing several Supreme Court’s rulings, the MHA has further submitted that the provisions in the J&K Reorganization Act must be read in the same way and with the same meaning as the law governing other Union Territories and mentioned that nomination powers in J&K are same as in Puducherry and Delhi (both the UTs with Legislative Assembly).
The affidavit has been filed in response to a question framed by the High Court of J&K and Ladakh vide its order dated October 21, 2024—whether Sections 15, 15A and 15B of the J&K Reorganization 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?
The question was framed in a Public Interest Litigation (PIL) filed by Ravinder Kumar Sharma, Senior Vice-President and Chief Spokesperson of the J&K Pradesh Congress Committee (JKPCC) challenging these sections of the Reorganization Act.
“The J&K Reorganization Act defines the legislative and administrative structure of the two newly created Union Territories. J&K has a Legislative Assembly with a total strength of 114 members of which 24 seats remain vacant, reserved for the regions of Pakistan-occupied Jammu Kashmir (PoJK). The Lieutenant Governor of J&K holds executive authority, similar to the governance model of New Delhi and Puducherry. Under Section 32 of the Reorganization Act, the Lieutenant Governor of J&K has been given discretionary powers in the matters on Police and Public Order”, the affidavit said.
Pointing towards J&K Reorganization (Amendment) Act, 2023, which received the President’s assent on December 15, 2023, the MHA said, “by way of proviso inserted to Section 14(3) of the Act, the strength of Assembly was increased to 114 members from earlier 107 as per Section 60(1) of the Act. Further, inserted Section 15A granted power to the Lieutenant Governor (LG) to nominate two members from the community of Kashmiri migrants, out of which one must be a woman belonging to the community, to the J&K Legislative Assembly”.
Moreover, inserted Section 15B granted powers to the LG to nominate one member from the community of persons displaced from the PoJK to the Legislative Assembly.
“The enactment of Sections 15, 15A and 15B of the Jammu & Kashmir Reorganization Act, 2019 was necessitated to ensure adequate representation and inclusivity in the Legislative Assembly of the Union Territory of Jammu & Kashmir”, the MHA said, adding “Section 14 originally provided for the composition of the Legislative Assembly, outlining the number of elected and reserved seats. Further, Section 15 provides nomination of two members to the Legislative Assembly to give representation to women, if in the opinion of Lieutenant Governor they (women) are not adequately represented in the Legislative Assembly”.
However, through the 2023 amendment, Sections 15A and 15B were introduced to empower the Lieutenant Governor to nominate members to the Legislative Assembly thereby addressing the need for representation of certain communities or groups that may not have adequate electoral representation. This was in line with similar provisions in other Union Territories with Legislatures, ensuring that diverse voices, including those from underrepresented communities, could contribute to the legislative process, the MHA said in the affidavit.
Stating that J&K continues to be a Union Territory governed by Article 239 of the Constitution of India and laws enacted by the Parliament of India, the MHA said, “by virtue of this Article the governance of UT vests in the President of India, who administers it through the LG”, adding “while J&K has been provided with a Legislative Assembly under the Act, its legislative competence remains subject to the provisions of the Constitution and matters relating to Police and Public Order to remain under the exclusive control of LG under Section 32 of the Reorganization Act. This is consonance with the legislative scheme applicable to the UT of National Capital Territory of Delhi”.
According to the affidavit, Sections 15A and 15B of J&K Reorganization Act, 2019 serve a critical legislative function by ensuring representation for historically displaced communities and unrepresented persons within the governance structure of the UT. “These provisions uphold the constitutional principles of inclusivity, representation and justice by addressing the unique political and humanitarian issues faced by the Kashmiri migrants and displaced persons from PoJK as well as women in the UT. Therefore, the legislative intent behind these provisions is well-founded in the law and equity ensuring that the voices of these displaced communities are neither ignored nor marginalized in the democratic process”, the MHA added.
“The issue whether the Lieutenant Governor with regard to nomination of members of the Legislative Assembly has to act with the aid and advice of the Council of Ministers or has the discretionary power under Article 239(AA) of the Constitution of India already stands conclusively settled with respect to the Legislative Assembly of Puducherry and Municipal Corporation in NCT of Delhi”, the MHA further said, adding “it would be apposite to juxtapose the provisions of the three Acts, where this issue has arisen for consideration, so as to exhibit that the Supreme Court has, on two instances settled the very same issue which is being agitated before the High Court of J&K”.
The MHA has also pointed towards decision of Supreme Court in Govt of NCT Delhi Versus the office of LG of Delhi whereby the court has proceeded to hold that the LG exercises the powers of nomination of members as a statutory duty and not as an executive power of the Government. It has further been held by the Apex Court that LG is intended to act as per the mandate of the statute and not to be guided by the aid and advice of the Council of Ministers.
“The arguments advanced by the petitioner echo similar arguments advanced earlier with respect to the UT of Puducherry and the Supreme Court has conclusively opined that the nomination of members to the Legislative Assembly is not the business of the Government of Puducherry and accordingly the same was to be exercised by the LG. The feeble attempt of the petitioner to distinguish the case of J&K from Puducherry is meaningless in as much as both Puducherry and J&K are UTs where the constitution, composition, powers and functions of Legislative Body are to be prescribed by the Parliament by law”, the affidavit said.
The affidavit further read: “The necessary implication is that the interpretation of Section 12 of the UTs Act, 1963 would pari-materia apply to Sections 15, 15A and 15B of the J&K Reorganization 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 business of the elected Government of J&K”.
Regarding the issue of sanctioned strength of the UT Legislature raised by the petitioner, the MHA has drawn comparative analysis of the provisions of the Government of Union Territories Act, 1963 and J&K Reorganization Act and said, “both contains provisions that are nearly identical in nature, specifying the exact number of seats to be filled through direct elections. Likewise, both statutes include additional provisions governing the nomination of members to their respective Legislative Assemblies”.
The High Court has been informed that Jammu & Kashmir Reorganization Act, 2019, was duly amended in the year 2023 to incorporate Sections 15A and 15B. Accordingly, it cannot be contended that the nominations to be made under these provisions are arbitrary or have been introduced without increasing the sanctioned strength of the Legislative Assembly, adding “a due legislative amendment was enacted through the prescribed parliamentary procedure”.
The 2023 amendment to the J&K Reorganization Act, 2019 has been duly brought about and it has increased the sanctioned strength of the Legislative Assembly to include the provision for 3 new nominations. The Constitution also has a scheme of providing categorization of members based on election and nomination.
“Section 14(3) 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 plus all members nominated in terms of Sections 15, 15A and 15B”, the MHA further said.
Regarding maintainability of the PIL, the MHA has drawn the attention of the High Court towards the law laid down by the Supreme Court in Guruvayoor Devaswom Managing Committee Versus C K Rajan, and M C Mehta Versus Kamal Nath whereby the Apex Court has consistently opined that an individual with oblique motives, personal motivations or political motivations, cannot use the PIL jurisdiction to agitate such motivations purportedly in public interest.
“By virtue of the office occupied by the petitioner, the present petition is, without a doubt, a politically petition meant to upset the homeostasis arrived at through democratic process in the Union Territory of Jammu and Kashmir and must be dismissed at the threshold on account of the same”, the MHA has prayed, adding “PIL jurisdiction cannot become a medium for political expression and must be reserved for matters which pertain to public interest, rather than the political ambitions of a particular person or the faction that they are associated with”.
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