The proposed Jammu and Kashmir Reorganisation (Amendment) Bill, 2023 specifies that the Lieutenant Governor of J&K – who is appointed by the Union government – would nominate these MLAs.
By: Umer Maqbool
The Bharatiya Janata Party-led Union government is planning to introduce a Bill in parliament to reserve three seats in the legislative assembly of Jammu and Kashmir for Kashmiri migrants and refugees from the Pakistan-occupied Jammu and Kashmir (PoJK). This will take the number of nominated seats in the unicameral House to five as two seats were already reserved for women in 2019.
The BJP claims that the Bill is aimed at “preserving the political rights of these communities as well as for their overall social and economic development”. However, within J&K’s political circles, it is being debated whether the Union territory’s elected government would have a role in making these nominations, or would these seats be used by the Union government to subvert public mandate and destabilise elected regimes in Jammu and Kashmir, akin to what happened in Puducherry.
The proposed Bill
Accessed documents that show that the Jammu and Kashmir Reorganisation (Amendment) Bill, 2023 provides for the nomination of three MLAs – two from the Kashmiri migrant community and one from the displaced persons of PoJK – in the legislative assembly of the UT. The proposed Bill specifies that the Lieutenant Governor of Jammu and Kashmir – who is appointed by the Union government – would nominate these MLAs.
In August 2019, the Union government retained the provision of nominating two seats for women in the legislative assembly of the UT. “Notwithstanding anything in sub-section (3) of section 14, the Lieutenant Governor of the successor Union territory of Jammu and Kashmir may nominate two members to the legislative assembly to give representation to women, if in his opinion, women are not adequately represented in the legislative assembly,” reads section 15 of the Reorganisation Act, 2019.
This provision also existed in the erstwhile state of Jammu and Kashmir as J&K’s constitution provided that two women can be nominated to the assembly by the governor. The nomination would occur if the governor believed that the women are not adequately represented in the House.
The governor would then make these nominations on recommendations of the erstwhile state’s elected government as he was bound to do so under the J&K constitution. “There shall be a council of ministers with the chief minister at the head to aid and advise the governor in the exercise of his functions. All functions of the governor except those under sections 36, 38 and 92 shall be exercised by him only on the advice of the council of ministers,” read the J&K constitution whose key provisions were repealed by the Union government in 2019.
Who will have the power to nominate these MLAs?
The bigger question is, whether the Lieutenant Governor would consult J&K’s council of ministers or the chief minister before making nominations.A cursory look at the Reorganisation Act, 2019 and the proposed Bill suggests that the specific authority to nominate these MLAs in the legislative assembly lies with the Lieutenant Governor.
The Reorganisation Act further reveals that Lieutenant Governor wouldn’t be bound to go by the recommendations of the council of ministers on the nomination of the MLAs, as the law restricts the role of the elected government in advising him on the matters over which the J&K assembly has powers to enact laws. “There shall be a council of ministers consisting of not more than ten percent of the total number of members in the legislative assembly, with the chief minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the legislative assembly has power to make laws except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions,” reads section 53 of the Jammu and Kashmir Reorganisation Act, 2019.
Under Article 239A, the parliament has the authority to enact a body – whether elected, or partly nominated and partly elected – to function as a legislature for a UT. Since the J&K assembly has no powers to enact a law for its composition, it means that the Lieutenant Governor would not be required to consult the council of ministers while nominating MLAs.
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 court emphasised that the nominated members have the same right to vote as the elected members.
The Reorganisation Act, 2019 also makes it clear that the nominated members have voting rights on all issues, including a no-confidence motion and budget, as the Act treats elected and nominated members equally in terms of voting rights. “Save as otherwise provided in this Act, all questions at any sitting of the legislative assembly shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as such,” reads section 25 of Jammu and Kashmir Reorganisation Act, 2019.
‘A subversion of public mandate’
Political analyst Zaffar Choudhary said that the nomination process would have an unfair bearing on public mandate if the Lieutenant Governor has powers to nominate MLAs before floor test.
“The law is not very clear about who has the authority to nominate such members to the assembly. If the Lieutenant Governor does this on the advice of the elected government, then it’s a fair process. However, if the Lieutenant Governor is empowered to nominate members to the assembly before the formation of the elected government, it will have an unfair bearing on the public mandate. Such nomination of members with voting powers can potentially change the floor arithmetic,” he said.
He said that the amendment to the Jammu and Kashmir Reorganisation Act, 2019 – which increases the number of seats in the legislative assembly – aligns with the recommendations of the delimitation commission. He said the government’s plan to bring a Bill on the matter is indicative of the possibility of preparing for the assembly elections in Jammu and Kashmir.
M.Y. Tarigami, four-time MLA and senior Communist Party of India (Marxist) leader, told that the Union government’s move is ‘unconstitutional and illegitimate’. “We believe that the Jammu and Kashmir Reorganisation Act, 2019 is not in tune with the Constitution of India. They should wait for the Supreme Court judgment before going ahead with the Bill,” he said.
He said that the proposed legislation mocks the plight of the Kashmiri Pandits and the refugees. “They should have carved out exclusive seats for Kashmiri Pandits and PoJK refugees in Jammu during the delimitation process. These nominated members will be representatives of the Lieutenant Governor rather than their communities. If they were so concerned about their political rights, they should have given them the right to elect their representatives,” he said.
National Conference MP from south Kashmir, Justice (retd.) Hasnain Masoodi, said that they would wait for the introduction of the Bill in the House. “It would be inappropriate on part of the Centre to bring such a Bill at this time, as the Supreme Court is set to hear a challenge to the constitutional validity of Jammu and Kashmir Reorganisation Act,” he said.
A politician, wishing not to be named, said that such a move would mean a subversion of public mandate. “We are not averse to political empowerment of these communities, but such a move would mean that the government in New Delhi would have partial control on the legislative assembly of J&K,” he said.
Kashmiri migrants, displaced persons from PoJK and their representation
At the time of the outbreak of armed militancy in Kashmir in 1989, a large number of Kashmiri Hindu families had migrated from their places of residence to Jammu and other cities. They are called Kashmiri migrants.
As many as 46,517 families, comprising 1,58,976 people, are registered as Kashmiri migrants with the Jammu and Kashmir government. They also comprise a few hundred Sikh and Muslim families who had migrated to Jammu during that period. Since 1957, one or two Kashmiri Pandits had been elected to the assembly of Jammu and Kashmir till 2002. Even after the armed conflict broke out in the region in 1989, members from the Kashmiri Pandit community had managed to get elected from the region.
In 1996, P.L. Handoo of the National Conference got elected from Habba Kadal and became a cabinet minister in the Farooq Abdullah-led government. In 2002, Raman Matto, who fought as an independent candidate, won from Habba Kadal and became a minister of state in the Mufti Muhammad Sayeed-led government. In the 2008 and 2014 elections, no Kashmiri Pandit was elected to the assembly. The displaced persons are those who have migrated from different parts of the Pakistan occupied Jammu and Kashmir to J&K in the 1947-48, 1965 and 1971 wars.
As per official records, there are a total number of 41,844 such families. Like other state subjects, the PoJK refugees had all political rights and were entitled to contest and vote in the assembly elections of Jammu and Kashmir before 2019. A number of PoJK refugees have been elected to the Jammu and Kashmir assembly.
Legal provisions in states and UTs on nominations
There is no legal provision for the nomination of MLAs in any state assembly. Such provisions only exist for the assemblies of Jammu and Kashmir and Puducherry. All MLAs in the Delhi UT are elected by the people. In the Sikkim assembly, there is a provision for the reservation of seats for Sikkimese people of Bhutia-Lepcha origin and Sanghas (Buddhist monastic community), but elections are held on all seats in the state.
Effective strength of the J&K assembly
The effective strength of the Jammu and Kashmir assembly would be 95 with the addition of these seats. Ninety out of 95 members would be elected directly by the people and the remaining five would be nominated by the Lieutenant Governor. Besides, 24 seats will remain vacant in the J&K assembly for the people living in areas of Jammu and Kashmir under the occupation of Pakistan – a provision in the Jammu and Kashmir constitution which was retained by the Union government when it reorganised J&K into two UTs in 2019.
These 24 seats remain vacant and are not considered when calculating the total membership of the assembly.
