Nomination of Assembly Members in Jammu & Kashmir
The Union Ministry of Home Affairs' position allows the Lieutenant-Governor (L-G) of Jammu & Kashmir to nominate five Assembly members without requiring the "aid and advice" of the elected government. This stance challenges the principle of democratic accountability.
Constitutional Concerns
- The core constitutional question is whether the 2023 amendments to the J&K Reorganization Act violate the Constitution’s basic structure by potentially converting minority governments into majority ones, and vice versa.
- The Ministry's legal argument, referencing previous legal precedents and specific sections of the Union Territories Act, suggests that nominations are beyond the elected government's purview.
- Sections 15A and 15B of the 2019 Act allow the L-G to nominate specific community representatives, thus creating five nominated seats in total.
Potential Impact on Governance
- These nominated members could affect government stability in a 119-member Assembly, thus raising concerns about whether such a framework aligns with democratic principles.
- Historical precedent: The 2021 collapse of the government in Puducherry, influenced by nominated members, highlights potential risks.
Democratic Accountability
- Jammu & Kashmir’s transition to a Union Territory without elected representation underscores the need for democratic accountability.
- The Supreme Court has recognized the importance of restoring statehood, which is widely supported in J&K, as crucial for enhancing democratic governance.
Contradiction with Supreme Court Jurisprudence
- The Ministry’s argument contradicts Supreme Court rulings in the Delhi services cases, which emphasized the L-G should act upon the elected government’s advice, with discretionary powers being exceptions.
The ministry's arguments do not align with evolving judicial interpretations, calling into question the democratic integrity of allowing appointed officials to potentially override electoral outcomes.
