Why in the News?

• The Union Home Ministry informed the J&K High Court that the Lieutenant Governor can nominate five members to the Assembly without ministerial advice, reviving the debate on nominations to Union Territory legislatures.

What’s in Today’s Article?

• Nominations to UTs (Introduction, Constitutional Provisions, Judicial Precedents, Implications, Way Forward, etc.)

Introduction

• The process of nominating members to Union Territory (UT) Assemblies has sparked a renewed debate after the Union Home Ministry submitted an affidavit before the Jammu & Kashmir and Ladakh High Court.
• It stated that the Lieutenant Governor (LG) of Jammu & Kashmir can nominate five members to the Legislative Assembly without the aid and advice of the Council of Ministers.
• This position has revived discussions about the scope of executive power, constitutional principles, and the balance between the Union government and UT administrations.

Constitutional Provisions on Nominations

• The Indian Constitution envisages nominated members in both Parliament and State legislatures.
• While the provision for Anglo-Indian representation in legislatures was abolished in 2020, the Rajya Sabha continues to have 12 nominated members appointed by the President on the advice of the Union Cabinet.
• Similarly, Legislative Councils in six States have one-sixth of their members nominated by the Governor based on ministerial advice.
• In the context of UTs, nominations are guided by specific Parliamentary statutes.

• Delhi: The Government of NCT of Delhi Act, 1991 provides for 70 elected members, with no nominated MLAs.
• Puducherry: The Government of Union Territories Act, 1963 allows the Union government to nominate up to three members to the Assembly.
• Jammu & Kashmir: The J&K Reorganisation Act, 2019 (amended in 2023) provides 90 elected seats and authorises the LG to nominate five members, including women, Kashmiri migrants, and displaced persons from Pakistan-occupied Kashmir.

Judicial Precedents

• The nomination process has been tested before the courts multiple times.

• Puducherry Case (2018): In K. Lakshminarayanan vs Union of India, the Madras High Court upheld the Union government’s power to nominate three members without ministerial advice.
• However, it recommended statutory clarity to avoid ambiguity. The Supreme Court later set aside these recommendations while upholding the nominations.
• Delhi Services Case (2023): In Government of NCT of Delhi vs Union of India, the Supreme Court elaborated on the principle of the “triple chain of command,” ensuring accountability of civil servants to ministers, ministers to legislatures, and legislatures to the electorate.
• While not directly related to nominations, this reasoning strengthens the argument for requiring LGs to act on ministerial advice in matters of Assembly composition.

Implications for Democracy

• The issue assumes importance because UTs with Assemblies have elected governments that are accountable to the people.
• When the ruling party at the Centre differs from that in the UT, nominations made unilaterally by the LG or Union government could alter the political balance, potentially converting a majority into a minority government.
• This is particularly significant in smaller legislatures like J&K (90 seats) and Puducherry (30 seats), where nominated members could influence the stability of elected governments.

Jammu & Kashmir - A Special Case

• J&K stands apart due to its history of statehood and greater autonomy prior to its reorganisation into a UT in 2019.
• Although the Supreme Court upheld this transition, the Union government has assured restoration of statehood in due course.
• Given this background, democratic principles suggest that the LG’s power to nominate should ideally be exercised on the advice of the elected Council of Ministers, rather than independently.

Way Forward

• To avoid constitutional ambiguity and political friction, the following measures are necessary:

• Statutory Clarity - Parliament should amend relevant laws to define the procedure and authority for nominations unambiguously.
• Democratic Safeguards - Nominations should not undermine electoral mandates or alter Assembly majorities.
• Advisory Role of Council of Ministers - LGs should generally act on ministerial advice to preserve representative democracy.
• Case-Specific Adaptations - J&K’s unique political context requires sensitive handling to ensure legitimacy and fairness in nominations.