LG’s Name-Dropping in JK Assembly Have Democratic Questions

The Union Home Ministry feels that the Lieutenant Governor (LG) of Jammu & Kashmir is within his rights to appoint five members to the J&K Legislative Assembly without the consent of Council of Ministers that has been elected by the J&K and given Legislative Assembly numbers even this elected Council of ministers may not be able to do so. This stand made in front of the J&K and Ladakh High Court has triggered a debate on democratic principles in Union Territories (UTs) with legislatures.

The Constitutional and Legal Framework

There are nominated members in different legislatures under the Indian Constitution:

Parliament: Twelve members of the Rajya Sabha are nominated by the President.

States: Governors can nominate members on Legislative Councils in six states.

Union Territories: These are governed by individual parliamentary acts.

• Delhi: 70 elected MLAs with no nominated member.
• Puducherry: Has 30 elected MLAs and not more than 3 nominated members by the Central Government.
• J&K: The Assembly has 90 elected seats and the LG can nominate up to five members under the Jammu and Kashmir Reorganisation Act, 2019 (amended in 2023) (two women, two Kashmiri migrants, and one displaced person from PoK).

The Core of the Controversy

The issue is if these nominations should be made on the advice of the elected UT government by the LG. The other is the position of the Home Ministry that the LG can act unilaterally.

Contrasting Judicial Views

Previous court decisions offer a complicated picture:

• A 2018 Madras High Court judgment recently held that the Centre could appoint MLAs in Puducherry without any recommendation of the UT cabinet.
• But a key Supreme Court ruling in 2023 in the Delhi vs. Union of India case formed the “triple chain of command” doctrine. It said the government should govern, and the LG is constitutionally proceeding on the advice of the Council of Ministers where the Assembly has the power.

Democratic Implications

The ability to appointment members without consulting the elected government is both significant:

• Changing Mandates: In a narrow legislature, five nominated members might sway the majority, which could sit unkindly with the popular mandate in case the party in power in the Centre is not the same as in the UT.
• Accountability: It results in such a bloc of legislators being made accountable not to the electorate but to the appointing authority (the LG/Centre), challenging the very basis of representative democracy.

The case is a continuing illustration of the contestation that exists between central control and democratic governance in the country’s UTs and the additional nuance introduced to the subject by the special constitutional status that J&K now enjoys.