Going by Supreme Court verdicts, J&K L-G can nominate 5 members to UT Assembly

Ahead of Jammu and Kashmir Assembly election results on Tuesday, the question of whether Lieutenant Governor Manoj Sinha can nominate five members to the House of the UT -- taking its strength from 90 to 95 -- is on everyone's mind, with the BJP and its rival NC and Congress taking varied positions.

In the event of a fractured verdict as predicted by pollsters, the L-G’s power to nominate these five members could alter the entire equation and potentially determine who forms the government.

Section 15 of the J&K Reorganization Act 2019 empowers the L-G to nominate five members to the Assembly. These include two women; two Kashmiri migrants one of whom should be a woman (Section 15 A) and one person to be nominated from those displaced from Pakistan occupied Jammu and Kashmir (Section 15 B).

Once the results are declared, the L-G will notify the constitution of Jammu and Kashmir Assembly and then nominate five members to the House, taking its strength to 95. Accordingly, it would require 48 MLAs to form the government.

Can the L-G nominate these five members under the J&K Reorganization Act, 2019 on his own? Is he mandated to act on the ‘aid and advice’ of the newly formed council of ministers?

Going by the Supreme Court’s 2018 verdict in the case of nomination of members to the Legislative Assembly of Puducherry and the recent one on the nomination of Alderman to the Municipal Corporation of Delhi (MCD), L-G Manoj Sinha can nominate five members to the Jammu and Kashmir Legislative Assembly at his own discretion and he need not act on the aid and advice of the council of ministers.

“In Puducherry, where the governance continues to be regulated by Government of Union Territories Act, 1963, the Central Government, through Lt Governor, acting as the nominee of the President and Administrator under Article 239 has power to nominate three members in the Legislative Assembly,” senior advocate Sanjay Jain – who had represented the Puducherry Lt Governor in the case – told The Tribune.

“On the same lines, the Lt Governor of Delhi under Delhi Municipal Corporation Act has discretionary powers to nominate Aldermen to Municipal Corporation of Delhi.  Such nominations do not require the aid and advice of the elected governments of the union territory and this aspect has been upheld by the Hon'ble Supreme Court in respect of both enactments. Such nominated members of Puducherry have powers to vote on a par with the elected legislators on all issues including motions of budget or that of no confidence,” Jain said.

He, however, clarified that the MCD Aldermen do not have power to participate and vote on the motions inside the House, though they have a limited power of voting for the Wards Committees with no right to contest.

On December 6, 2018, the Supreme Court had upheld the then Puducherry Lt Governor Kiran Bedi’s decision to nominate three Members of Legislative Assembly (MLAs) to the Assembly of the union territory.

A three-judge Bench headed by Justice AK Sikri (since retired) dismissed Congress party’s petitions challenging the March 22, 2018 verdict of the Madras High Court declining to declare illegal the nominations made on behalf of  the Central Government under Section 3(3) of the Government of Union Territories Act, 1963 to the Legislative Assembly of Union Territory of Puducherry.

Similarly, a three-judge Bench of CJI DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala on August 5 upheld Delhi Lt Governor VK Saxena’s decision to nominate 10 members to the MCD.

The top court ruled that the Delhi Lt Governor can act at his own discretion in nominating aldermen to the MCD and he was not required to act on the aid and advice of the Delhi Council of Ministers headed by the Chief Minister.

The power to nominate aldermen was a statutory power conferred on the Lt Governor by a law enacted by Parliament and the L-G was not required to act on the aid and advice of the Delhi Council of Ministers to exercise this particular power, it said, drawing a distinction between statutory and executive powers exercised by the Lt Governor.