The recent discussions surrounding the potential nomination of five members to the Jammu and Kashmir Legislative Assembly by the Lieutenant Governor (LG) echo a legal precedent set by the Puducherry administration in 2017-2018. In Puducherry, then-LG Kiran Bedi nominated two members to the UT Assembly without consulting the Congress-led government. This move was challenged in both the Madras High Court and the Supreme Court, but the apex court upheld the LG’s authority, confirming that the LG had acted within legal bounds, even without the Chief Minister’s consultation.
This legal precedent now looms large over Jammu and Kashmir (J&K), where the nomination of five members by the LG is a potential game-changer in the region’s upcoming political landscape. These nominated members could play a pivotal role in the formation of the next government, increasing the total Assembly strength to 95, thereby raising the majority threshold to 48 seats.
The provision for these nominations stems from the Jammu and Kashmir Reorganisation Act, 2019, which was amended in 2023. Section 15 of the Act allowed the LG to nominate two women to the Assembly to ensure adequate representation. The 2023 amendment extended this power, granting the LG the authority to nominate two Kashmiri migrants and one displaced person from Pakistan-occupied Jammu and Kashmir (PoJK). These five nominated members, according to the amendment, will possess the same powers and voting rights as other elected members.
This move, however, has met with fierce opposition from J&K’s major political parties, particularly the Congress, National Conference (NC), and the People’s Democratic Party (PDP). These parties argue that allowing the LG to nominate members before government formation constitutes an undemocratic manipulation of the electoral process. In their view, such nominations, especially if the nominees are aligned with the Bharatiya Janata Party (BJP), could tip the balance in favor of a particular political agenda even before the people’s mandate is fully realized.
National Conference leader Farooq Abdullah has stated his party’s readiness to challenge the move in the Supreme Court. Abdullah argues that the power to nominate members traditionally lies with the elected government, not the LG. He views any effort by the BJP-led Centre to empower the LG to make these nominations before the formation of a government as an undermining of democratic norms.
Similarly, the Congress, through its spokesperson Ravinder Sharma, has strongly condemned the idea, calling it an “assault on democracy.” For Sharma, the move represents a violation of the Constitution’s fundamental principles, as it circumvents the democratic process by allowing unelected individuals to play a decisive role in government formation.
Iltija Mufti of the PDP has gone even further, describing the move as “brazen pre-result rigging.” Mufti suggests that the nominated members are likely to have strong ties to the BJP, which she views as a deliberate effort to manipulate the electoral outcome and consolidate power.
From a legal standpoint, however, the Supreme Court’s ruling in the Puducherry case may bolster the legitimacy of these nominations. The Court upheld the LG’s right to nominate members to the Assembly, even without consulting the Chief Minister. If challenged in court, the J&K nominations may similarly be upheld, given the clear language of the 2023 amendment to the Reorganisation Act.
However, while the legal framework may support such nominations, the democratic implications are more contentious. Nominated members, despite not being directly elected by the people, would hold the same voting rights as elected MLAs. This raises important questions about representation and the balance of power in a nascent political landscape like Jammu and Kashmir, where the memory of the abrogation of Article 370 is still fresh, and the region’s political autonomy remains a sensitive issue.
The possibility of nominated members playing a decisive role in government formation could set a concerning precedent for the future. If the nominated members align strongly with a particular political party, it could skew the formation of the government in ways that may not reflect the will of the electorate.
While the legal provisions may be clear, the broader democratic question remains: should unelected members have the power to determine the course of a government? As Jammu and Kashmir moves towards its next phase of governance, this issue will likely become a defining aspect of the region’s political future. The people of J&K, long accustomed to political uncertainty, deserve a transparent and fair electoral process, one where the power to form a government lies firmly in the hands of those elected by the people—not those appointed by an external authority.
In the end, while the Puducherry precedent may offer legal clarity, it is the people of Jammu and Kashmir who must navigate the political implications of these nominations. As political parties prepare to contest these moves in court, the stakes are high—not just for the immediate outcome of government formation, but for the future of democracy in Jammu and Kashmir.
