Nominations to J&K Assembly: Legal and Constitutional Implications
By Suryavanshi IAS
Introduction
The recent affidavit filed by the Union Home Ministry
before the Jammu & Kashmir High Court regarding the
nomination of members to the J&K Legislative Assembly has
raised significant constitutional and administrative questions. The issue
revolves around whether the Lieutenant Governor (L-G) can
nominate members without the aid and advice of the elected
government.
This topic is crucial for UPSC aspirants as
it intersects with:
- Indian
Polity (Governance in UTs, Role of L-G)
- Constitutional
Provisions (Articles 239, 239AA, Basic
Structure Doctrine)
- Current
Affairs (J&K Reorganisation Act, 2019)
Background of the Issue
1.
J&K Reorganisation Act, 2019
o Converted J&K
into a Union Territory (UT) with a Legislative Assembly.
o Provided
for 90-member Assembly (later increased to 114 with
reserved seats for PoJK migrants and Kashmiri Pandits).
2.
2023 Amendment
o Inserted
provisions for nomination of 5 members:
§ 2
Kashmiri migrants (including 1 woman)
§ 1
member from PoJK community
§ 2
women (if L-G feels inadequate representation)
3.
Legal Challenge
o A PIL was
filed by Congress leader Ravinder Sharma, arguing that such
nominations could alter the balance of power in the Assembly.
Key Arguments by the Union Home Ministry
1.
L-G’s Discretionary Power
o The
Ministry stated that nomination is a statutory function of the
L-G, not bound by the aid and advice of the Council of
Ministers.
o Cited Section
15 of J&K Reorganisation Act, which grants the L-G independent
authority.
2.
Distinction Between L-G and UT Government
o The
affidavit clarified that the L-G is not an extension of the UT
government but a separate constitutional authority.
3.
Constitutional Validity
o The
Ministry defended the amendment, stating it does not violate the basic
structure of the Constitution.
Constitutional and Legal Analysis
1. Role of L-G in UTs
- Article
239: Governs UTs, giving the President (via L-G) administrative
control.
- Article
239AA (for Delhi): L-G acts on aid and advice except
in police, land, and public order.
- J&K
(Post-2019): Unlike Delhi, J&K’s L-G has wider
discretionary powers due to UT without legislature status
earlier.
2. Basic Structure Doctrine
- The
PIL argues that allowing nominations to alter majority/minority violates democratic
principles (a basic structure).
- Supreme
Court Precedents:
- Kesavananda
Bharati (1973): Parliament cannot amend the basic
structure.
- S.R.
Bommai (1994): Federalism and democracy are
part of the basic structure.
3. Comparison with Other States/UTs
- Puducherry:
L-G can refer a bill to President if against national interest.
- Delhi:
L-G bound by aid and advice except in reserved subjects.
- J&K:
L-G has more autonomy post-2019 reorganisation.
Previous Year UPSC Questions (2016-2024)
Prelims Questions
Q1. (2023) Consider the following statements
regarding the administration of Union Territories:
1.
The Lieutenant Governor of a UT acts on the aid
and advice of the Council of Ministers.
2.
In Delhi, the L-G has discretionary powers in
matters of police and public order.
3.
The President can regulate the powers of the
L-G through administrative orders.
Which of the above is/are correct?
(a) 1 and 2 only
(b) 2 only
(c) 1 and 3 only
(d) 1, 2, and 3
Answer: (b) 2 only
- Explanation:
- Statement
1: False (Only in Delhi, except reserved subjects).
- Statement
2: True (As per Article 239AA).
- Statement
3: False (Powers are defined by Parliament, not
President’s orders).
Q2. (2021) With reference to Jammu and Kashmir,
consider the following statements:
1.
The J&K Reorganisation Act, 2019,
bifurcated the state into two UTs.
2.
The UT of J&K has a Legislative Assembly,
while Ladakh does not.
Which of the above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Answer: (c) Both 1 and 2
- Explanation:
- Statement
1: Correct (J&K became UT with legislature, Ladakh
without).
- Statement
2: Correct.
Mains Questions
Q. (2022) Discuss the constitutional
implications of the nomination of members to the J&K Legislative Assembly
by the Lieutenant Governor without the aid and advice of the elected
government. (15 Marks)
Answer Approach:
1.
Introduction:
Briefly explain the J&K Reorganisation Act’s nomination clause.
2.
Constitutional Provisions: Role
of L-G under Article 239, comparison with Delhi.
3.
Legal Issues:
Basic structure doctrine, democratic representation.
4.
Judicial Precedents:
Kesavananda Bharati, S.R. Bommai.
5.
Conclusion: Need
for balance between administrative discretion and democratic norms.
Conclusion
The J&K nomination issue is a critical case
study for UPSC aspirants, covering:
- Polity (L-G’s
role, UT governance)
- Constitutional
Law (Basic structure, federalism)
- Current
Affairs (Post-2019 J&K changes)
Aspirants should track court judgments on
this matter and relate them to broader democratic principles for Mains
answer writing.
For more UPSC-focused analyses, follow
Suryavanshi IAS!
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