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Introduction

The 2019 reorganisation of Jammu and Kashmir, which split it into two Union Territories, reshaped its governance framework. The 2023 amendment to the J&K Reorganisation Act empowers the Lieutenant Governor to nominate five Assembly members, including Kashmiri migrants, Pakistan-occupied J&K representatives, and underrepresented women, without the advice of the elected government. This raises concerns about its compatibility with democratic accountability and the Constitution’s basic structure.

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Justifications: Nomination Powers Aligned with Democratic Accountability & Basic Structure

• Promotion of inclusive representation: The provision ensures representation of otherwise under-represented groups such as Kashmiri migrants, PoJK community, and women, thereby enhancing democratic inclusivity.
  Eg: L-G empowered to nominate two Kashmiri migrants (one woman), one from Pakistan-occupied J&K, and two women if underrepresented in the Assembly.
• Statutory authority under central law: Amendments made in Sections 15A and 15B of the J&K Reorganisation Act, 2019,  explicitly empower the L-G to nominate members, exercising authority conferred by Parliament.
• Precedents from other federal territories: The Puducherry precedent (K. Lakshminarayanan case) upheld L-G nominations as discretionary powers, establishing legal consistency.
• Preservation of legislative function amid transition: In a territory with delayed statehood and evolving governance, nominated seats can help maintain legislative continuity and ensure balanced representation during transition phases.

Concerns: Democratic Accountability and Constitutional Disquiet

• Override of the elected government’s mandate: The nominations bypass the “aid and advice” of the elected government, undermining the spirit of representative governance.
  Eg: Goes against the principle that executive action should reflect the elected mandate.
• Risk of altering government stability: Five nominated members in a 119-member Assembly could swing majority or minority status, impacting government formation.
  Eg: Potential to decide outcomes in a closely contested Assembly.
• Contradiction with Supreme Court doctrine on L-G discretion: The Delhi services cases (2018, 2023) ruled that the L-G must act on elected government’s advice except in rare exceptions, making unilateral nominations contentious.
• Allegation of democratic erosion: Opposition parties in J&K view these provisions as undermining the essence of electoral democracy.
• Potential for administrative overreach: Allowing an appointed official to tilt legislative balance contradicts federalism and decentralised decision-making.
  Eg: Central control overriding local political authority.

Suggestive Measures to Safeguard Federalism

• Mandate Aid and Advice Requirement: Make consultation with the elected government a legal prerequisite for all legislative nominations by the L-G.
• Codify Transparent Criteria for Nominations: Objective, data-based eligibility norms can ensure nominations genuinely reflect underrepresentation.
• Introduce Legislative Oversight: Require Assembly ratification or committee vetting to subject nominations to democratic scrutiny.
• Restoration of Statehood: Returning full legislative powers to an elected Assembly will dilute central overreach and strengthen accountability.
• Independent Selection Panel: A bipartisan committee with civil society representation can ensure fairness in the nomination process.
• Limit Voting Rights of Nominated Members: Restrict nominated members from voting on motions of confidence or key fiscal matters to protect electoral mandate.
• Adopt Sarkaria & Punchhi Commission Guidelines: Implementing commission recommendations can limit discretionary overreach and reinforce cooperative federalism.

Conclusion

The L-G’s unilateral power to nominate members to the J&K Legislative Assembly, without the elected government’s aid and advice, raises significant constitutional and democratic concerns. While the intent of inclusivity is laudable, the potential to alter Assembly majorities strikes at the heart of democracy and federalism, both part of the basic structure. Ensuring transparent procedures, legislative oversight, and alignment with Supreme Court jurisprudence will safeguard democratic accountability.

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