‘Go To HC’: Supreme Court rejects appeal against LG’s plan to nominate 5 members to UT Assembly

New Delhi: As Jammu and Kashmir moves closer to forming a new government under chief minister-designate Omar Abdullah of the National Conference (NC), the Supreme Court on Monday declined to consider a petition challenging the lieutenant governor’s (LG’s) authority to nominate five members to the J&K legislative assembly.
“They may nominate, may not nominate… we don’t know. Go to the high court. Not everything has to come to this court directly,” a bench of justices Sanjiv Khanna and Sanjay Kumar told senior counsel Abhishek Manu Singhvi.

Singhvi represented the petitioner, Union territory resident Ravinder Kumar Sharma, who contested Sections 15, 15A and 15B of the J&K Reorganisation Act, 2019. These provisions authorise the LG to nominate five members to the assembly, potentially altering the elected body’s composition.

Singhvi, assisted by senior advocate Sunil Fernandes, sought to highlight the gravity of the issue, arguing it related to the basic structure of the Constitution as far as a threat to electoral mandate is concerned.

“Suppose I have a strength of 48 in the 90-member assembly. That’s three above the majority mark. If the LG nominates five MLAs, the other side can become 47 and it boils down to just one member. You can completely frustrate the electoral mandate by using this power… what if they decided to raise the nomination from five to ten in the future,” Singhvi contended.

But the bench retorted, “One, they have not done it so far. Second, they are expected to have some reasons why these provisions are there. Let the high court examine all this… also, this petition appears to have been filed before the election results were announces,” it told the senior lawyers.

In its brief order, the bench recorded. “We are not inclined to entertain this petition under Article 32 of the Constitution (writ jurisdiction). We leave the petitioner with liberty to move the jurisdictional high court under Article 226 (writ).”

At this point, Singhvi said that he should be allowed to come back if something drastic happens. Responding, the bench said: “It hasn’t happened yet, and we may also say that it should not happen.”
The NC emerged victorious in the recent elections, winning 42 seats in the 90-member assembly. The Congress and Communist Party of India (Marxist) secured six and one seat respectively, bringing the coalition tally to 49. The NC’s position was further strengthened with support from several Independent candidates and the sole MLA from the Aam Aadmi Party (AAP), pushing its numbers comfortably beyond the majority mark. Omar Abdullah, who met with LG Sinha on October 11, has requested the swearing-in ceremony be scheduled at the earliest.

On Sunday, President Droupadi Murmu signed a notification, formally ending the five-year-long President’s rule in J&K, paving the way for the NC-Congress alliance to form a government. President’s rule was imposed on October 31, 2019, following the abrogation of Article 370 and the bifurcation of Jammu and Kashmir into two UTs– J&K and Ladakh. The Narendra Modi-led government passed the J&K Reorganisation Act on August 5, 2019, and subsequently revoked the special status previously granted to the erstwhile state under Article 370, a move affirmed by the Supreme Court in December 2023.

Section 15 of the J&K Reorganisation Act empowers the L-G to nominate five members to the assembly. These include two women; two Kashmiri migrants one of whom should be a woman (Section 15 A) and one person to be nominated from those displaced from Pakistan occupied Jammu and Kashmir (Section 15 B).

In his writ petition, Sharma contended that the LG’s nomination power threatens the assembly’s democratic structure by potentially altering its composition and influencing the majority.
According to Sharma, the LG’s declaration to nominate members after the elections but before the formation of a government reflects a motive to influence the Assembly’s composition. The nominations, the plea claimed, would increase the assembly’s strength from 90 to 95 members, potentially impacting the balance of power. The petition argued that this move undermines the results of the recent elections, wherein the NC and its allies have already secured a clear majority.

Contending that Sections 15, 15A and 15B of the Act exceed constitutional limits by effectively raising the assembly’s sanctioned strength from 114 to 119 members, without legislative amendment, Sharma pointed out that other Union territories, including Puducherry, do not adjust their assembly size to accommodate nominated members. Consequently, the plea stated, this increase is both illegal and violative of democratic norms.
Citing the SR Bommai case (1994) that emphasised the importance of proving majority on the legislative floor, the petition raised concerns that LG’s nominations could alter the balance of power. “The Impugned provisions can potentially render such a government as minority one, despite being in numerical majority in the 90-member House which is the result of a legitimate election,” it said.

The petitioner described LG’s nomination power as “unfettered, uncanonised and arbitrary,” arguing that it endows the LG with an outsized role in legislative affairs, contrary to the principles of representative democracy enshrined in the Constitution. Sharma further argued that Jammu and Kashmir’s historical status as a state with constitutional protections under Article 370 distinguishes its legal framework from that of other Union territories, necessitating a more restricted role for the LG.

Sharma’s petition referred to the Supreme Court’s decision in Lakshminarayanan Vs Union of India (2020), which affirmed the LG’s power to nominate members in Puducherry. However, the petition pointed out that the J&K case is distinct, as these nominations are occurring post-election but prior to government formation. In Puducherry’s case, the assembly was already constituted when nominations took place, with nominated members included in the assembly’s total strength.
The Supreme Court’s recent December 2023 judgment upheld the abrogation of Article 370, framing it as the “culmination of the process of integration” of Jammu and Kashmir with India. The judgment also directed the Election Commission to hold elections by September 30, 2024, and urged the Centre to restore Jammu and Kashmir’s statehood “as soon as possible.”

Additionally, one of the members of the bench, justice Sanjay Kishan Kaul (since retired), recommended establishing a “Truth and Reconciliation Commission” to address human rights violations in the region and facilitate a framework for social and cultural restoration.

Following the NC’s electoral victory, party president Farooq Abdullah emphasised the need for unity within J&K, declaring that healing the social divide would be a priority for the incoming government. He also reiterated the coalition’s commitment to pursuing the restoration of J&K’s statehood. (HT)