Context: The Union Home Ministry, in an affidavit before the J&K and Ladakh High Court, submitted that the Lieutenant Governor (LG) of Jammu & Kashmir can nominate five members to the Legislative Assembly of J&K without the aid and advice of the elected Council of Ministers.
This has revived debates on the constitutional scheme governing nomination of legislators and the principles of democratic accountability in Union Territories (UTs).
Relevance of the topic:
Prelims: Constitutional provisions for nominated members in Parliament, State legislatures, and UT Assemblies.
Mains: Federal balance between Centre and UTs, Role of LG vs elected government in UTs.
Constitutional and Statutory Provisions on Nominated Members
Indian Constitution provides for nominated members in the houses of Parliament and State legislature.
- Lok Sabha and State Legislative Assemblies: The provision for nominating two Anglo-Indian members to the Lok Sabha and one Anglo-Indian member to State Legislative Assemblies was discontinued in 2020 (104th Constitutional Amendment, 2020).
- Rajya Sabha (Article 80): Rajya Sabha has 12 nominated members. These members are nominated by the President on the aid and advice of the Union Council of Ministers.
- States With Legislative Councils (Article 171): In the six States with Legislative Councils, nearly one-sixth of the members are nominated. These members are nominated by the Governors on the advice of the States’ Council of Ministers.
- Union Territories: The composition of the Legislative Assemblies of three Union Territories (UT) are governed by Acts of Parliament.
Provisions on Nominated Members in Union Territories
- Delhi: The Government of National Capital Territory of Delhi Act 1991 provides for 70 elected members in the Delhi Assembly. There are no nominated MLAs in the Delhi Assembly.
- Puducherry: The Government of Union Territories Act 1963 provides for 30 elected members in the Legislative Assembly of Puducherry. It also provides that the Union government may nominate up to three members to the Puducherry Assembly.
- Jammu & Kashmir:
- Section 14 of the J&K Reorganisation Act, 2019 (as amended in 2023) provides for a total of 90 elected seats in the Legislative Assembly of J&K.
- In addition, Sections 15, 15A and 15B provide that the LG may nominate a total of up to five members (two women, two Kashmiri migrants and one displaced person from Pakistan occupied Kashmir) to the J&K Assembly.
What have the Courts ruled?
K. Lakshminarayanan vs Union of India (2018) case:
- The Madras High Court upheld the power of the Union government to nominate three members to the Assembly and such nomination need not be based on the advice of the UT’s Council of Ministers.
- However, the court also recommended that Parliament should bring statutory amendments to lay down a clear and unambiguous procedure for nomination of MLAs, including who will exercise this power and on what basis.
- However, the Supreme Court on appeal had set aside the recommendations in this judgment of the Madras High Court.
Government of NCT of Delhi versus Union of India (2023) case:
- The Supreme Court had delved into the concept of ‘triple chain of command’ that ensures democratic accountability.
- In this ‘triple chain of command’ opined by the court, civil servants are accountable to ministers; ministers are accountable to the legislature; and the legislature is accountable to the electorate.
- Therefore, it is held that the LG is bound by the aid and advice of the Council of Ministers in all matters, except where the Delhi Assembly does not have legislative powers.
- Although this case dealt with appointment of officers in the Delhi Government, its reasoning may apply to the nomination of MLAs as well.
Way Forward
A UT does not enjoy the same status of a full-fledged State in the Indian federal set up. However, UTs with Assemblies have their own elected governments that are accountable to its population, therefore
- Political differences between the Union government and a UT government should not derail the democratic process in the UTs.
- The process of nomination must be based on the advice of the elected Council of Ministers as in smaller assemblies like that of J&K and Puducherry, these nominated MLAs can have the potential of converting a majority government into a minority one and vice versa, thereby rupturing popular mandates.
- J&K is a special case as it was a State till 2019 with greater autonomy than others. Though its conversion into a UT has been upheld by the Supreme Court, the Union Government has promised early restoration of statehood. Hence, the LG should nominate five members to the J&K Assembly on the advice of the Council of Ministers to uphold democratic principles.