The Union Ministry of Home Affairs (MHA) has told the J&K High Court that the Lieutenant-Governor (L-G) can nominate five Assembly members without the “aid and advice” of the elected government. This position has sparked a constitutional debate over democratic accountability in a politically sensitive Union Territory where such nominations could alter the balance of power. This is significant because these nominations could decide the majority in a 119-member House, potentially overturning the people’s electoral verdict. The High Court is examining whether this undermines the Constitution’s basic structure.
Core issues before the J&K High Court
- Constitutional question: Whether the 2023 amendments to the J&K Reorganisation Act, allowing the L-G to nominate five members, violate the Constitution’s basic structure.
- Potential impact: These five voting members could “convert a minority government into a majority government and vice versa,” influencing governance stability.
- Judicial scope: Goes beyond statutory interpretation into democratic essence.
Provisions of the 2023 amendments
- Sections 15A & 15B of the Jammu and Kashmir Reorganisation Act, 2019: Allows nomination of two Kashmiri migrants (including one woman) and one from Pakistan-occupied J&K, in addition to two women if inadequately represented.
- Total seats: Creates five nominated members in the 119-member Assembly.
- Voting rights: These nominees have full voting powers.
Centre’s justification of this power
- MHA’s submission: Nominations fall outside the elected government’s remit, citing K. Lakshminarayanan vs Union of India (Puducherry).
- Legal references: Invokes “sanctioned strength” concept, including elected + nominated members, and Section 12 of the 1963 Union Territories Act on voting procedures.
- Approach: Focuses on legal technicalities rather than broader constitutional implications.
Concerns over democratic implications
- Risk of mandate distortion: In a tight Assembly, nominees could decide government stability.
- Precedent in Puducherry: In 2021, nominated members plus defectors contributed to the collapse of the Congress-led government.
- UT context: J&K’s downgrade from State to UT in 2019 happened without consultation with elected representatives, making accountability critical.
Supreme Court jurisprudence on L-G’s powers
- Delhi Services Cases (Government of NCT of Delhi vs. Union of India (2018), Government of NCT of Delhi vs. Union of India & Anr. (2023)): SC held that the L-G should act on the “aid and advice” of the elected government, with discretion as the exception.
- Contradiction: MHA’s stance that nominations lie outside the elected government’s domain runs counter to this jurisprudence.
Conclusion
The J&K nominations issue highlights the tension between administrative authority and the democratic mandate. In politically sensitive regions, bypassing elected governments in decisions that can shift Assembly majorities risks undermining public trust and the constitutional promise of representative governance.
Value Addition |
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Mapping Micro Themes for GS Paper II
| Topic | Micro Theme | Example |
| Centre–State Relations | Constitutional role of L-G in UTs & states | J&K L-G nominations without elected govt’s aid and advice |
| Electoral Process Integrity | Impact of nominated members on Assembly majority | Puducherry 2021 govt collapse case |
| Basic Structure Doctrine | Threat to democratic accountability | HC challenge to J&K Reorganisation Act amendments |
| Comparative Jurisprudence | Lakshminarayanan vs Union of India precedent | Puducherry nominated MLAs case |
| Federalism in Special Regions | J&K statehood restoration debate | SC acknowledgement & public demand |
PYQ RELEVANCE
| [UPSC 2016] Discuss the essentials of the 69th Constitutional Amendment Act and the controversies regarding the powers of the Lieutenant Governor vis-à-vis the elected government in the NCT of Delhi.
Linkage: The 69th Constitutional Amendment Act created a legislative assembly for Delhi and defined the relationship between the L-G and the elected government, leading to recurring disputes over whether the L-G must act on the “aid and advice” of the Council of Ministers. The J&K nominations case mirrors this constitutional tension—while Delhi’s dispute involved administrative control and services, J&K’s controversy centres on the L-G’s power to nominate voting members without elected government concurrence. Both situations raise a common constitutional question: Can the L-G exercise discretionary powers in a manner that can override or alter the democratic mandate? This makes Delhi’s precedent and Supreme Court rulings directly relevant to interpreting J&K’s case. |
Practice Mains Question
Discuss the constitutional implications of granting the Lieutenant-Governor of Jammu & Kashmir the power to nominate Assembly members without the aid and advice of the elected government. In your answer, examine its impact on the democratic process in light of Supreme Court jurisprudence.
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