Aid and advice: on Jammu and Kashmir, LG’s Assembly member nominations

The Union Ministry of Home Affairs’ assertion to the J&K High Court that the Lieutenant Governor (LG) can nominate five Assembly members without the “aid and advice” of the elected government overrides democratic accountability. Consequential decisions such as nominating members who have voting rights in an elected assembly must flow from democratic mandate, not administrative discretion. The High Court’s constitutional question could not be more direct: do the 2023 amendments to the J&K Reorganisation Act, allowing the LG to nominate five Assembly members “which have the potential of converting the minority government into a majority government and vice-versa,” violate the Constitution’s basic structure? Rather than addressing this, the Ministry delves into legal technicalities. Its submission argues that nominations fall outside the elected government’s remit, seemingly invoking the K. Lakshminarayanan vs The Union of India precedent from Puducherry while claiming the “sanctioned strength” includes elected and nominated members. It even references Section 12 of the 1963 Union Territories Act (voting procedures) as justification for bypassing democratic consultation. When five nominated members could determine government stability in a 119-member Assembly, the issue transcends statutory definitions of “sanctioned strength”. The real question is whether any legal framework allowing appointed officials to potentially overturn the people’s electoral verdict violates the democratic essence of the Constitution.

The amendments inserted Sections 15A and 15B into the 2019 Act, allowing the LG to nominate two Kashmiri migrants (including one woman) and one from the Pakistan-occupied J&K community, besides the existing power to nominate two women, if inadequately represented in the elected Assembly. This effectively creates five nominated seats. The High Court’s framing of this issue acknowledges the stakes involved: this could “convert minority government into majority government and vice-versa”, potentially subverting the electoral process. This concern is not unsubstantiated — in 2021, three years after Lakshminarayanan, Puducherry saw nominated members and defecting elected MLAs contributing to the collapse of the Congress-led government. Also, J&K’s trajectory to Union Territory, without consultation with elected representatives, makes democratic accountability even more crucial. The unfulfilled promise of Statehood restoration, acknowledged by the Supreme Court and despite overwhelming support in J&K, reinforces that current arrangements should strengthen democratic governance. The Ministry’s argument that nominations exist “outside the realm of the business of the elected government” also contradicts evolving Supreme Court jurisprudence. In the Delhi services cases of 2018 and 2023, it ruled that the LG should act on elected governments’ aid and advice, with discretionary powers treated as exceptions. Seen in this light, the Ministry’s arguments do not hold water.