Srinagar: As people in Jammu & Kashmir anxiously wait for the outcome of the assembly polls, the issue of nominated Members of Legislative Assembly (MLAs) has taken centre stage in the Union Territory (UT).
The political grapevine suggests that five persons would be nominated to the assembly by Lieutenant Governor of UT before formation of the government, something which would be an advantage to the BJP in case the opposition National Conference-Congress alliance fails to secure a clear majority. While election was held for 90 seats, the LG will now nominate five persons to the assembly including two each women and Kashmiri migrants and one Pakistan Occupied Jammu & Kashmir (PoJK) refugee.
Nominated MLAs and Number Game
As per the Jammu & Kashmir Reorganisation Act, five MLAs would be nominated to the assembly by the Lieutenant Governor, who apparently would do it on advice of Union Home Ministry.
Citing the Supreme Court judgement in K. Lakshminarayanan versus Union of India and the Jammu & Kashmir Reorganisation Act, the Bharatiya Janata Party(BJP) claims that the LG doesn’t need to consult council of ministers of J&K for nominating them and these members would have voting rights on all matters in the House.
“These five MLAs would have a right to vote on all matters including formation of the UT government,” BJP J&K unit spokesman and lawyer Sunil Sethi told The Wire.
“They would be nominated by the LG immediately after election results and before oath is administered to all MLAs,” he said.
According to political observers, these members would have a pivotal role in the formation of a government in case the opposition fails to cross the majority mark.
They say these nominations would not only increase the strength of BJP in the House, but would also increase the majority mark for the opposition.
In the 90-member assembly of J&K, a political party or a coalition requires 46 seats to prove its majority. However, the nomination of five MLAs would effectively take the strength of the House to 95, increasing the majority threshold to 48 instead of 46.
It means that the opposition NC- Congress should have 48 elected MLAs to form the government. On the other hand, with five nominated MLAs already in its kitty, BJP would require only 43 elected MLAs to reach the majority mark of 48.
Opposition Parties slam move
Meanwhile, opposition parties have slammed the move, saying it is “undemocratic” and “unconstitutional”.
J&K unit of Congress said the proposed move is equivalent to fraud with democracy and mandate of the people of Jammu & Kashmir.
“The right to form a new government lies with the elected MLAs of whichever party or coalition gains a majority in the elections. Any nominations contemplated before the government formation in J&K UT would be a fraud on democracy and the people’s mandate,” Ravinder Sharma, spokesman of J&K unit of Congress told mediapersons on Friday (October 04).
National Conference also decried the move, saying “the power to nominate five MLAs lies solely with an elected government”.
“These powers cannot be exercised by the LG in the absence of an elected body,” NC’s provincial president, Jammu, Rattan Lal Gupta said.
Peoples Democratic Party (PDP) has also expressed concerns over the decision, saying it is an “assault” on the already “disenfranchised” people of Jammu and Kashmir.
“This move is not just unhealthy, but it’s also an insult to the democratic institution in the region. It appears the BJP is playing a dangerous game with national interests by undermining the essence of elections,” senior PDP leader Dr. Mehboob Beg told a Srinagar-based news agency.
The organisations representing refugees of PoJK have cautioned LG against appointing a political nominee for the seat reserved for them in J&K assembly.
In a memorandum submitted to the LG, Rajiv Chuni, who heads an organisation of refugees of PoJK, said that 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.
He said the reserved seat in J&K Legislative Assembly should not be treated as a political sanctuary for any individual.
“It must instead serve its intended purpose of genuinely representing the interests of the displaced community. If the government truly wants 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 said.
Legal provisions for nominations
Currently, there is no provision for nomination of MLAs in any state assembly. These provisions only exist for the assemblies of Union Territories of Puducherry (three nominated MLAs) and Jammu & Kashmir (five nominated MLAs).
While the provision for nominating two women, which existed in the erstwhile state of J&K, was retained by the Union Government in 2019 at the time of enactment of the Reorganisation Act, the provision of nomination of two seats for Kashmiri migrants and one for PoJK refugees was incorporated in the Reorganization Act in 2023 on recommendations of delimitation commission headed by Justice (retired) Ranjana Desai.
In 2018, the Supreme Court in K. Lakshminarayanan versus Union of India held that the Union government is not required to consult the elected government for nominating members to the Puducherry assembly.
Moreover, the top court emphasised that the nominated members have the same right to vote as the elected members.
