With the MHA asserting that nominating five members to Jammu and Kashmir’s assembly is the sole prerogative of the Lt Governor, a new ‘disempowerment’ challenge has emerged for the political class of the erstwhile state, reports Masood Hussain
A legal and political storm is brewing in Jammu and Kashmir after the Ministry of Home Affairs (MHA) filed an affidavit in the High Court asserting the Lt Governor’s (LG) discretionary power to nominate five members to the Legislative Assembly without the “aid and advice” of the elected government. The MHA’s stance, which it claims is a statutory function to ensure inclusivity and representation, has been met with fierce opposition from political parties across the spectrum, including the ruling National Conference (NC) and the opposition Peoples Democratic Party (PDP).
The MHA’s affidavit was filed in response to a plea by senior Congress leader Ravinder Sharma, who has challenged the constitutional validity of Sections 15, 15-A, and 15-B of the Jammu and Kashmir Reorganisation Act, 2019. These sections empower the LG to nominate five members: two women, two representatives from the Kashmiri migrant community (one of whom must be a woman), and one member from the persons displaced from the part of Kashmir on the other side of the LoC, officially called Pakistan-occupied Jammu and Kashmir (PoJK). The total strength of the Jammu and Kashmir Assembly, including these nominated members, stands at 95, with 90 elected seats. An additional 24 seats are reserved for areas under PoJK.
Sharma’s petition argues that these provisions are unconstitutional and have the potential to “turn a minority into a majority, or a majority into a minority,” thereby violating the basic structure of the Constitution. He contends that the nominations are “over and above the sanctioned strength of 114” and that the LG should not be able to act without the council of ministers’ advice. Sharma, represented by senior Supreme Court lawyer Dr Abhishek Manu Singhvi, has announced his intention to file a rejoinder to the MHA’s reply before the next hearing, scheduled for August 14.
The MHA, in its affidavit, has sought to dismiss Sharma’s plea, labelling it “politically motivated.” It argues that the LG’s power to nominate is a statutory function, distinct from the executive authority that requires the council of ministers’ advice. The MHA’s position is that this is in line with the governance model of other Union Territories like Delhi and Puducherry. The ministry emphasised that the sections were enacted to serve a “critical legislative function” by ensuring representation for under-represented communities and historically displaced persons. This, they assert, is necessary because “women are not adequately represented in the legislative assembly,” and displaced communities like Kashmiri migrants and PoJK residents lack a voice in the governance structure.
Fierce Reaction
This legal battle has ignited a political firestorm, with Jammu and Kashmir’s mainstream parties uniting in their criticism of the Centre’s position. Former Chief Minister and PDP president Mehbooba Mufti took to X (formerly Twitter) to denounce the decision as a “blatant subversion of democratic principles.” She argued that “nowhere else in the country does the Centre handpick legislators to override the public mandate” and that in a “Muslim-majority region, long marred by conflict,” this move feels “less like governance and more like control.” Mufti also urged the Omar Abdullah-led government to challenge the “undemocratic precedent,” stating that “silence now would be complicity later.”
Echoing her sentiments, National Conference chief spokesperson Tanvir Sadiq called the move “contempt for the people’s mandate.” He posted on X that with an elected government holding an “absolute majority,” bypassing it to allow the LG to “handpick members” strikes at the heart of parliamentary democracy, and sets a “dangerous precedent.”
CPI(M) leader Mohammad Yusuf Tarigami also joined the chorus of criticism, calling the MHA’s justification a “clear attempt to undermine the electoral democratic process.” He pointed out that the LG is an “unelected nominee” and giving him the authority to nominate members “runs contrary to the very spirit of representative democracy.”
High-Stakes Intervention
The political stakes are high, with the MHA’s decision having the potential to significantly alter the balance of power in the Jammu and Kashmir Assembly and even influence elections for the Rajya Sabha. The Jammu and Kashmir Assembly has 90 elected members, and an alliance between the NC and Congress, holding over 50 seats, is in a strong position. With the five LG-nominated members, the total strength of the house would increase to 95.
While the current alliance has a comfortable majority, the BJP could potentially use the five nominated votes to increase its strength in the assembly and aim for an additional Rajya Sabha seat, bringing its potential total from one to two of the four available seats. This could have a substantial impact on the political landscape of the Union Territory, which has been without Rajya Sabha members since February 2021.
The outcome of the High Court case is therefore not just a legal matter but a crucial political one. The court’s decision on whether Sections 15, 15-A, and 15-B of the Reorganisation Act violate the basic structure of the Constitution will determine the future of legislative representation and the balance of power in Jammu and Kashmir. For now, the fate of the five nominated members and the political equilibrium of the UT hang in suspense as the legal battle unfolds.
Earlier System
Before Jammu and Kashmir’s reorganisation, the erstwhile state’s assembly consisted of 87 seats available for contestation, a figure derived from an initial strength of 111 seats with 24 officially reserved for areas under Pakistani control. This pre-2019 seat allocation saw the Kashmir valley holding the largest share with 46 seats, followed by the Jammu region with 37, and the Ladakh region with 4. Routinely, the ruling party would nominate two women to the house, but they would lack voting rights. This bicameral system, which included a legislative council, was dissolved in late 2018, with the 13th assembly being elected in 2024 under the new unicameral structure established by the 2019 Act.
Following the 2019 reorganisation and a subsequent delimitation exercise completed in 2020, the structure of the legislative assembly was significantly altered. The total number of seats was increased to 114, with the original 24 seats reserved for PoK remaining vacant. Of the remaining 90 contested seats, the delimitation report added six seats to the Jammu division and one to the Kashmir division, resulting in a new distribution of 47 seats for the Kashmir division and 43 for the Jammu division. This change also introduced provisions for the reservation of 7 seats for the Scheduled Castes and 9 for the Scheduled Tribes, marking a major shift in the region’s electoral landscape.
Now, the nominations by an unelected executive to an elected house are Jammu and Kashmir’s new political battle.
