Maneesh Chhibber 
It is safe to say that on October 8, even before counting of votes officially begins in the erstwhile state of Jammu and Kashmir, the Bharatiya Janata Party will have five MLAs in the seats-won column.
These five MLAs will be those nominated to the new assembly – over and above the sanctioned strength of 90 MLAs – by the Lieutenant Governor as per the J&K Reorganisation Act, 2019 and the J&K Reorganisation (Amendment) Act, 2023.
However, as it becomes clear that, despite its shenanigans, the BJP may fall severely short of the requisite numbers to form the next government in Jammu and Kashmir, where election are being held after over a decade and for the first time since the reading down of Article 370, which granted special status to the erstwhile state, questions are being asked as to the role that these nominated MLAs will play in government formation.
‘Unconstitutional’
“It is clear that these nominated MLAs will have voting rights. Normally, and constitutionally, it should have been the right of the new government to recommend names of such persons to the LG, who should have issued their orders on the aid and advice of the cabinet,” says one of J&K’s leading lawyers, Sheikh Shakeel Ahmed.
“However, in the case of J&K, it is clearly not going to be the case. It is very questionable and may even be unconstitutional. This is the discretionary quota given to the LG and is therefore against constitutional values. Isn’t it a way to circumvent the mandate of the public?” Ahmed asks.
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To give representation to certain sections of people, including migrant Kashmiri Pandits and those displaced from Pakistan-occupied Jammu and Kashmir community, the Union government notified the J&K Reorganisation (Amendment) Act, 2023 on December 15 last, giving the LG power to nominate to the legislative assembly two members – one of them a woman – representing the “Kashmiri migrant community” and one member to represent the displaced persons from Pakistan-occupied Jammu and Kashmir (PoJK). This is apart from the two women who will be nominated as MLAs as per the earlier Act.
It is interesting to note that the phrase used is “Kashmiri migrant community”, which means not just Kashmiri Pandits, but that even Kashmiri Muslims, many of who also migrated due to threat of militants, could be eligible to be nominated MLAs. The two criteria for a person to be eligible under this category are: a person who migrated from the Kashmir Valley or any other part of the state of Jammu and Kashmir after November 1, 1989, and who is registered with the Relief Commissioner. Such migrants also include individuals who have not been registered due to “being in government service in any moving office”; having left for work, or; lastly, possessing immovable property at the place from where they migrated but are unable to reside there due to disturbed conditions.
There’s no clarity so far as to the criteria, if any, which will be followed by current LG Manoj Sinha, an ‘outsider’, whose administration is often seen as very inefficient, while selecting these five MLAs.
“They will certainly be BJP supporters, either overtly or covertly, who can be expected to support the BJP rather than any other party. I feel that was the basic intent of this clause (to have nominated MLAs) too. What I don’t understand is why the opposition chose not to challenge it so far,” observed another advocate, who requested anonymity.
‘Leaves us vulnerable’
Even the people, for whose supposed betterment the controversial clauses were brought in are questioning them.
Says Rajiv Chuni, chairman of SOS International, an organisation spearheading the “struggle for the legitimate and genuine rights” of displaced persons from Pakistan-occupied Jammu and Kashmir, says that the LG should not nominate a political party’s candidate for the seat reserved in the assembly for the “12-lakh strong community.”
“Any political appointment for this seat would make the PoJK displaced persons vulnerable to losing their rights which they have partially secured after nearly three decades of struggle. Such a move will further alienate PoJK refugees who have been neglected by successive governments over the past three decades,” Chuni says.
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Chuni further adds, “The reserved seat in J&K legislative assembly should not be treated as a sanctuary for any politically-aligned individual.”
He says that it must instead serve its intended purpose of genuinely representing the interests of the displaced community. “If we truly want to address the needs of PoJK refugees, a non-political nominee should be considered. Many political figures have represented this community in both the assembly and the Upper House, yet they have failed to deliver meaningful results,” he adds.
Chuni also wondered why the Union government, despite its tall claims of having brought back peace in Kashmir region, was still eager to bring nominated MLAs from the Kashmiri migrant community.
“If, as the government claims, the situation has improved so much, then why can’t Kashmiri migrants go back home and contest elections there? What is the message we are sending here? That it is still unsafe for Kashmiri migrants to return home?” he asks.
However, sources in the state government say, despite opposition, the LG is not considering a re-think and will “certainly” nominate the persons “he deems fit for the role”.