Understanding Nomination of MLAs in Jammu and Kashmir: Legal Debate Explained

In India's legislatores, not all members are elected. Some are nominated for their special contributions and

expertise. But the manner of this nomination has often been a subject of debate. Hello and welcome to Dishias. My

name is Aloney Nanduler and in this video we will discuss the recent debate on the nomination of MLAs to Jammu and

Kashmir and how will the LG nominate them. So there were petitions that were filed in Jammu Kashmir High Court which

said that the LG should nominate members based on the aid and advice of the council of ministers. He should take

recommendations from the council of ministers. But union ministry union home ministry in a response has released an

effid which says that LG can nominate five members without council of ministers advice. So the union home

ministry has said that LG can function unilaterally. does not need to take any recommendations from the state council

of ministers but the petitioners feel otherwise. So this is what the entire debate is all about. It's on the

procedure of the nomination of these people to the legislative assembly of Jammu and Kashmir. Now if we trace back

the root of the issue we go back to 2019 when by the state reorganization act of Jammu and Kashmir the stateood of JNK

was taken and two separate UTS were created UT of GNK and UT of Ladak.

So JNK has an assembly and UT of Ladak is without an assembly. [Music]

And in this assembly we have 90 elected members and five nominated members. So these five nominated members is where

our issue lies at the moment that how is the nomination of these members going to happen and even out of these five if we

quickly look at the breakup we have two women two Kashmir migrants

and one person who displaced from P or Pakistan occupied Kashmir. So we need to nominate LG needs to nominate

five members to the legislative assembly of Jammu and Kashmir but we are not sure of the procedure. Very recently in a

judgment of Supreme Court the abrogation of article 370 was upheld but the union government has promised to restore

statethood for Jammu and Kashmir and no timeline has been given. It has only said that this will happen the

restoration will happen soon. So this is a challenge as we do not know when this restoration of statehood is going to

happen because no timeline has been defined. And JNK is a special case in itself because before 2019 this was a

state and after 2019 it was downgraded to a UT one with an assembly and one without an assembly. So whenever we are

in such a tussle where we do not know what to do the source of truth lies in the Indian constitution.

So what do our constitutional provisions say about the nominated members? Constitution talks about nomination of

members to the Rajya Sabha and state legislative councils. Earlier there were Anglo Indians who were being nominated

to Lok Sabha also and the legislative assemblies also but that has been scrapped by the

104th constitutional amendment act. Now we have 12 members who are nominated to the

Rajya Sabha and in the states where we have state legislative councils 16th members

can be nominated to the state legislative councils. Now for Rajya Sabha who is responsible for the

nomination it is the president and our constitution explicitly calls out under article 74 that the president

will act on the aid and advice of the council of ministers. So this nomination will also happen on the aid and advice

of the council of ministers. For Raja Sabha it is the president and for the state legislative councils it is the

governor who again acts on the aid and advice of the state's council of ministers. So

president is acting on the aid and advice of the union council of ministers. Governor is acting on the aid

and advice of the state council of ministers. This is what our constitution talks about. But because Jammu Kashmir

is a special case. It was a state before. Right now it is a union territory and statehood is expected to

be restored soon. Anything that will happen in Jammu Kashmir's case will now set a precedent. So we do not know as to

what is going to happen right now because the laws are ambiguous. They are not clear. So in order to understand

what can happen with JNK, we can look at cases of UTS with a legislative assembly which are Delhi and Puducherry. So Delhi

is governed by the government of NCT of Delhi act 1991 and Puducherry is governed by the UT's act of 1963.

So these acts they define the elected members and nominated members for the legislative assembly of these UTS. So

for Delhi we have 70 elected members but no nominated members. So this act

does not have any provisions for the nomination of members to the legislative assembly of Delhi. So this right now is

not a relevant comparison for us. Versus Puducherry, it has a 30 plus three setup. 30 elected members, three

nominated members and these members will be nominated by the LG unilaterally which means that LG does not need to

take any advice from the state's council of ministers pardon me the UT's council of ministers. So LG is functioning

unilaterally and here Delhi we do not have any nominated members. So whatever happens in the case of Jammu Kashmir,

whatever judgment comes, it is going to set a precedent because this is a unique case as I already mentioned. So we are

in a hassle right now. We do not know what is going to happen. So whenever there is a situation where the

constitutional provisions say something and uh there is something else going on in the other UTS with assemblies, who do

we resort to? We go to the judiciary. So there are some key court judgments both in the case of Puducherry and Delhi. So

in Puducherry we have a case that's called K Lakshmi Narayan versus Union 2018 case it had it had gone to the high

court also in Supreme Court also and both the times it was said that LG can function unilaterally. As we already saw

that in Puduchari's case LG was functioning unilaterally and that was upheld by both Madras High Court as well

as the Supreme Court. There was only one thing that the Madras High Court additionally said that it suggested the

parliament to clarify the law because the law is ambiguous. So it suggested that the parliament clarifies the law

but Supreme Court scrapped this. It did away with the recommendation. It simply said that LG can function unilaterally.

Now in the case of NCT of Delhi versus Union of India 2023, this case originally came up because of

civil services bureaucracy issues. But an interesting concept came up which was the

triple command. Triple chain of command. Triple chain of command where we are

setting up democratic accountability across different levels like the civil servants.

Civil servants will be accountable to ministers. Ministers will be accountable to

legislature. And who will the legislature be accountable to? The electorate or the

people who have elected it. So this is the triple chain of command. This is the triple chain of command to

set up democratic accountability so that towards the end everybody is accountable to the people who have elected these

representatives. Civil services civil servants are accountable to ministers. Ministers are accountable to legislature

and legislature is accountable to the electorate. This is what we are supposed to follow. That is why there's this

contention that LG should function on the aid and advice of the council of ministers because these council of

ministers are elected representatives who have been chosen by the electorate who is the supreme power who this most

supreme power in the entire democracy. That is why we do not want the LG to function unilaterally and we do not want

it to do away with the recommendations of state council of ministers. Now what can be the issues

if LG nominates unilaterally? First our democratic accountability will be under threat.

Democratic accountability and transparency will be under threat and our elected authorities

will be weakened because now we are not listening to we are not taking into consideration the thoughts the opinion

of our elected authorities. which means we are undermining the value of the electorate the people which is the

supreme power of our democracy. So this is not something that a healthy democracy would want to do. A stable

democracy does not function like this. So this is not a desirable situation where the LG functions unilaterally and

the state's council of ministers are not taken into confidence or under consideration. So what should be our way

forward here? The way forward is that LG should function according to the aid and advice of the council of ministers.

There should be unambiguous laws. The laws must be defined. Right now there is a lot of ambiguity in the law. That is

why this matter is also subjudice. That is the reason that we do not know as to how JNK's function. The JNK's case is

going to function. So the laws they need to be unambiguous. There needs to be accountability and transparency in the

system and the center needs to honor its promise of statehood. Just like other states when uh JNK also becomes again a

fullyfledged state the governor will act on the aid and advice of the council of ministers. Right now because it is a UT

the entire dispute has come up. So the center must honor its obligation must honor its promise and the timeline of

soon should be defined. So that was all for today's video. I hope you enjoyed the discussion. Now let us practice a

question for prelims with reference to nominated members in Indian legislatores. Consider the

following statements. One, the provision for nominating Anglo-Indian members to parliament and state assemblies was

discontinued through the 104th constitutional amendment act 2019. Two, one sixth of the members of a state

legislative council are nominated by the governor on the advice of the state council of ministers. Three. The

government of NCT of Delhi Act 1991 provides for up to three nominated members in the Delhi Legislative

Assembly. Select the correct answer. One only, two only, 1 2 and three, one and two only. Please provide your answers in

the comment section and we will meet tomorrow with a new video. For more informative content, like,

share and subscribe and do not forget to press the bell icon to get the notifications.