G L Raina
Long and hectic electioneering for Legislative Assembly is over in the UT of Jammu and Kashmir. People’s mandate is sealed in the EVMs. Choice of the electorate will be clear by the afternoon of October 8, 2024. Till then the guessing game will continue. Pollsters will have few days to make merry and market their version also as the exit poll predictions will be released only after October 5 when voting concludes in Haryana.
There however seems to be no end to behind the scene parleys and public posturing over the outcome of election and government formation. Amidst claims and counter claims one factor that is having an overriding effect on Government formation is the role of nominated members to the legislative Assembly. This time their number is going to be five and they will have indistinguishable powers and rights from elected members.
This feature seems to have ruffled feathers of several caps particularly in the NC-Congress alliance. Not that they are sure of winning the election on their own. Some observers see this as diversional tactics and future fall guy to shoulder the blame attributing failure to this legal arrangement deliberately and falsely in order to deflect blame from real responsible people.
Before moving forward and instead of deducing the outcome in advance it is time to reflect on electioneering and its various features observed during campaigning after the schedule of the election was announced by the Election Commission of India on 16 August 2024.
We must also appreciate a) the free and fair environment provided by the administration for the election and canvassing, b) people’s enthusiastic participation both in numbers and intensity and also c) political players new and old fighting it out on ground in a democratic manner with a little liberty here and there. Credit must be given where it is due.
On July 26, 2023 in session XII of the 17th Lok Sabha The Jammu and Kashmir Reservation (Amendment) Bill, 2023 and The Jammu and Kashmir Reorganisation (Amendment) Bill, 2023 were introduced to Lok Sabha by Home Minister Amit Shah. Discussion took place in Lok Sabha on December 5-6, 2023.
In his reply to the debate Home Minister said that he felt happy and termed it good for our parliamentary system that no Member opposed the very spirit of this Bill. The objective of the Bill, he continued, was to provide justice and rights to all those who have been wronged, humiliated and ignored for 70 years. There is a major difference between giving rights and giving rights with respect, he added.
Home Minister asserted that, “For the first time in the history of the Delimitation Commission, 9 seats have been reserved for Scheduled Tribes (STs). Earlier, there were 107 seats in the Jammu and Kashmir Legislative Assembly, now the number has gone up to 114 seats. Earlier there used to be 2 nominated Members, now there will be 5 nominated Members. We cannot imagine the suffering of the displaced people of Kashmir. Those who have left property worth crores of rupees there to save their lives and have been living in camps in different parts of the country are living in a pitiable condition. In a way, property worth crores of rupees was snatched away from them at throwaway prices and the administration did nothing. We found a way out.”
So the way out that was found by this pro-people, pro-democracy and underprivileged -friendly government was to accept the recommendation of the Delimitation Commission and pave way for their representation in the state legislature.
It was on 6th of December that Lok Sabha passed the Reorganization (Amendment) Bill, 2023″. RajyaSabha passed it on December 11, 2023, and published it in the Gazette of India on December 15, 2023. It is clear now that there will be five nominated members in the newly constituted Legislative Assembly after declaration of results.
The Breakdown of these nominated members is as follows:
*. two women members; * two members -one male and one female from among the Kashmiri Migrants and *. one member from the Displaced Community from Pakistan Occupied Jammu and Kashmir.
Regarding the rights of these nominated members one has to remember that section 13 of The Jammu and Kashmir Reorganisation Act, 2019 reads ” On and from the appointed day, the provisions contained in article 239A, which are applicable to “Union territory of Puducherry”, shall also apply to the “Union territory of Jammu and Kashmir”.
The Puducherry legislative assembly has 33 seats, of which 5 are reserved for candidates from scheduled castes and 3 members are nominated by the Government of India. 30 out of 33 Members are elected directly by the people on the basis of universal adult franchise. In February 2021 Puducherry Lt Governor asked the Chief Minister to prove his government’s majority in the Vidhan Sabha. This was necessitated after Six MLAs of the ruling alliance resigned from the Vidhan Sabha.
The effective strength of the house was reduced to 26. In the House of 26 currently, the government had 12 MLAs – one short of the halfway mark. This includes the Speaker, a Congress MLA – but he could not vote unless there was a tie. The opposition had 14 MLAs – 7 from N R Congress, 4 from the AIADMK, and 3 nominated MLAs. Chief Minister Narayanasamy contends that the nominated MLAs do not have the power to vote in a confidence motion.
In 2018, the nomination of the three Puducherry MLAs was challenged before the Madras High Court. It was contended that the central government did not consult the Puducherry government before nominating them to the Legislative Assembly. After the High Court upheld the nominations of the three BJP members, the case went in appeal to the Supreme Court.
In December 2018, a three-judge Bench of the apex court held that no consultation with the Puducherry government was required before nominating members. (K Lakshminarayanan v. Union of India and Anr, 2018)
The Court also considered whether the nominated members had the power to vote on the Budget and on the no-confidence motion against the government. It held that the 1963 law did not distinguish between elected and nominated MLAs – so, they enjoyed voting powers at par with elected MLAs, and were empowered to vote in no-confidence motions.
It is therefore clear that :
* Lt. Governor has constitutional power to nominate five members to the Jammu Kashmir Legislative Assembly.
* That these nominated members have identical powers and rights as is available to elected members.
* As the Apex court has ruled that the 1963 law did not distinguish between elected and nominated MLAs – so, they enjoyed voting powers at par with elected MLAs, and were empowered to vote in no-confidence motions.
Article 239A provided that the legislature created for Union Territories could be either fully elected, or part nominated and part elected. For a brief reference to 1963 law it must be remembered that in 1962, after the signing of a treaty with France, the territories of Pondicherry, Karaikal, Mahe, and Yanam became part of the Indian Union. In the same year, then Home Minister Lal Bahadur Shastri introduced a Constitution Amendment Bill in Parliament, which grouped these territories into the Union Territory of Pondicherry, and also inserted a new Article 239A into the Constitution.
Article 239A provided that the legislature created for Union Territories could be either fully elected, or part nominated and part elected.
(The author is former Member of Legislative Council of Jammu Kashmir and spokesperson of BJP JK-UT)
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