New Delhi. Legal experts have different views on whether the Lieutenant Governor of Jammu and Kashmir can nominate five MLAs on the advice of the Council of Ministers at the time of government formation or later. Voting has been held in three phases for 90 assembly seats in Jammu and Kashmir and the election results are going to be declared on Tuesday. With the nomination of five members by the Lieutenant Governor, the number of Assembly members will increase to 95 and the majority figure in the House will be 48.
The Lieutenant Governor’s power to nominate five MLAs assumes significance in view of the exit polls predicting a hung assembly in the Union Territory. At the same time, a complex question also arises whether the nominated MLAs will play a role in determining the majority in the House.
When asked about the power of the Lieutenant Governor to nominate five members and whether it can be exercised without the advice of the Council of Ministers, former Delhi High Court judge SN Dhingra said that the election results will have to be awaited and the issue should not be raised at this time. There will be a hurry.
Justice Dhingra told PTI, “We can wait for the actual results because this issue depends on the outcome.” On this issue, senior advocate Gopal Sankaranarayanan said the Center should not interfere in the political process in the Union Territory as such actions affect the functioning of governments elected (by the public).
Supreme Court advocate Ashwini Kumar Dubey cited the apex court’s 2018 judgment, which had upheld the Centre’s decision to nominate three members to the Puducherry Assembly by then Lieutenant Governor Kiran Bedi.
However, he said the Jammu and Kashmir Reorganization Act 2019, which was amended in 2023, is “unclear” on the issue of whether nominated MLAs will have a role in government formation.
Responding to a question whether the power of the Lieutenant Governor of Jammu and Kashmir to nominate five MLAs should be guided by the advice of the Council of Ministers, senior advocate Shankaranarayanan said the answer has been given by the apex court to the Union Territory of Puducherry and its subjection to the Union. Was given in reference to.
He said, “As far as Kashmir is concerned, when the Supreme Court has accepted the statement of the Solicitor General that it will be given the status of a full state, then this question does not arise. “It was held that converting a state into a Union Territory is unacceptable and hence Jammu and Kashmir cannot be compared with Puducherry.” The senior advocate said, “The time has come that such political interference by the Center in the functioning of elected governments should be ended forever.
“We have seen how administration has come to a standstill in Delhi and Puducherry, seriously affecting the rights of citizens.” Citing the Jammu and Kashmir Reorganization Act and Article 239A of the Constitution, Dubey said the Act provides for nominating five members – two women, two from the migrant community and one POJK (Pakistan-occupied Jammu and Kashmir) refugees – to the state assembly. There is a provision of.
But it is ‘vague/silent’ on the issue of voting rights of nominated members during ‘government formation or no-confidence motion’, he said. He said that this provision was made at a time when there was no assembly in the Union Territory. Citing the 2018 judgment in the Puducherry case, he said it had held that the Central government is not required to consult the state to nominate members to the Assembly and nominated members have the same right to vote as elected members. .
Congress, National Conference and People’s Democratic Party (PDP) have opposed the nomination of five members before the formation of government in Jammu and Kashmir. Jammu and Kashmir Assembly is on the lines of Puducherry Assembly where three nominated members function like elected MLAs and also have the right to vote.