With the conclusion of the three-phase Jammu and Kashmir Assembly elections, a heated debate has emerged regarding the nomination of five Members of the Legislative Assembly (MLAs).
The debate has intensified as the "Jammu and Kashmir Reorganization (Amendment) Bill, 2023," passed by the Lok Sabha on December 6, 2023, and published in the Gazette of India on December 15, 2023, did not clarify details about these nominations.
Political parties and experts remain divided on the issue. Opposition parties have warned the Bharatiya Janata Party (BJP) against using these nominated seats to secure its advantage, while the ruling BJP has asserted that it is the Lieutenant Governor's prerogative to nominate these members.
Representation of Women and Displaced Communities
According to the Jammu and Kashmir Reorganization Act 2019, the Lieutenant Governor may nominate two women MLAs if they believe women are underrepresented in the Assembly. This is explicitly mentioned in Part III, Section 15 of the Act under the title "Representation of Women."
"—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".
In addition, the Jammu and Kashmir Reorganization (Amendment) Act 2023 provides for the nomination of two MLAs representing Kashmiri migrants and one representing displaced persons from Pakistan-Occupied Jammu and Kashmir (PoJK).
These provisions allow the Lieutenant Governor to nominate two members from the Kashmiri migrant community, including one woman, and one member from displaced persons of PoJK.
"Notwithstanding anything contained in sub-section (3) of section 14, the Lieutenant Governor of the Union territory of Jammu and Kashmir may nominate not more than two members, one of whom shall be a woman, from the community of Kashmiri Migrants to the Jammu and Kashmir Legislative Assembly"
"Notwithstanding anything contained in sub-section (3) of section 14, the Lieutenant Governor of the Union territory of Jammu and Kashmir may nominate one member from displaced persons from Pakistan-occupied Jammu and Kashmir to the Jammu and Kashmir Legislative Assembly."
The nominated MLAs will have full legislative powers, equivalent to elected MLAs, marking a historic step toward including these underrepresented communities in the political process.
Expanded Assembly and Nomination Process
The Jammu and Kashmir Legislative Assembly will expand to 95 members, consisting of 90 elected MLAs and 5 nominated MLAs. This expansion raises the majority threshold to 48 seats to form a government.
The Lieutenant Governor will nominate the five members based on the advice of the Home Ministry, following the provisions outlined in the amendments to the Jammu and Kashmir Reorganization Act, 2019.
Article 239A and Future Implications
After amendments to the Jammu and Kashmir Reorganization Act, Article 239A of the Constitution, which applies to the Union Territory of Puducherry, now also applies to Jammu and Kashmir. This article allows for a legislature that may be partly nominated and partly elected, and a Council of Ministers.
As the vote counting concludes on October 8, political parties are closely watching how the nomination process unfolds, with the possibility of government formation as early as October 15.
Any nominations to assembly prior to government formation would be undemocratic: Cong
Meanwhile, the Congress has strongly objected to the move of the ruling BJP to get five of its leaders nominated to the Legislative Assembly, from Lieutenant Governor prior to the process of government formation in J&K and termed any such move as undemocratic and against the mandate of people.
Reacting strongly to the media reports in this regard, the chief spokesperson of the Jammu and Kashmir Pradesh Congress Committee (JKPCC) Ravinder Sharma termed any such move as undemocratic, and an attempt to defeat the mandate of the people. He said that the power to nominate five members to the legislative assembly should lie with the new government.
