The Union Ministry of Home Affairs has submitted to the Jammu and Kashmir High Court that the powers granted to the Union Territory’s Lt Governor to nominate five members to the legislative assembly were necessary for inclusivity and adequate representation of all communities.
The MHA's remark drew a sharp reaction from PDP president and former chief minister Mehbooba Mufti, who termed it as "blatant subversion of democratic principles" and urged the Omar Abdullah government to challenge this "undemocratic precedent" because "silence now would be complicity later".
The MHA, in an affidavit, said the LG’s powers were discretionary and can be exercised without the aid and advice of the council of ministers, asserting that the LG’s office was not an extension of the government.
The affidavit was filed in response to a plea of Congress leader Ravinder Sharma challenging the constitutional validity of sections 15, 15-A and 15-B of the Jammu & Kashmir Reorganisation Act, which made provisions for the Lieutenant Governor to nominate five members of the legislative assembly over and above the sanctioned strength.
The sections were enacted to ensure that diverse voices, including those from under-represented communities, could contribute to the legislative process, the MHA said.
“The enactment of the sections (granting power to the LG) was necessitated to ensure adequate representation and inclusivity in the Legislative Assembly of the Union Territory of Jammu & Kashmir,” the Centre said.
Women are not adequately represented in the legislative assembly, it said.
Hence, the LG was empowered to nominate members to address the need for representation of certain communities or groups that may not have adequate electoral representation.
As per the Union government, the Lieutenant Governor has the powers to exercise the duty in his discretion, as a statutory functionary without aid and advice and not as an extension of the government.
The impugned sections serve a critical legislative function by ensuring representation for historically displaced communities and unrepresented persons within the governance structure of the Union territory, it added.
The legislative intent behind these provisions is well-founded in law and equity, ensuring that the voices of these displaced communities are neither ignored nor marginalised in the democratic process, the MHA said.
As per the affidavit, the Lieutenant Governor of J&K holds executive authority, like the governance model of New Delhi and Puducherry.
The affidavit of Ipsita Paul, Under Secretary, Department of Jammu, Kashmir and Ladakh Affairs of the Union Ministry of Home Affairs, sought dismissal of the plea with exemplary cost, terming it as “politically motivated”.
It said J&K is governed by the Constitution of India and the laws enacted by the Parliament of India.
“J&K does not retain any special status and all laws made by the Parliament of India shall be applicable to the UT of Jammu & Kashmir,” the affidavit added.
It said that the petition has become "academic" as the scenario contemplated did not arise.
Under these sections, the LG was granted power to nominate three members (two from the Kashmiri migrants, one of whom must be a woman and one from the persons displaced from the illegally occupied PoK) to the assembly.
The MHA, in its affidavit, said it was necessary to have two members from the community of Kashmiri migrants as multiple regions of the area have remained disturbed for decades, leading to extensive displacement of civilians.
“The inability of such displaced individuals to return to their place of origin due to persistent disturbances necessitates an alternative mechanism to ensure their representation in governance,” the affidavit said.
The objective was to ensure that their voice is heard in the legislative process to safeguard their rights and interests, it added.
The MHA said there is no representative to the assembly from among the displaced persons from Pakistan-occupied Jammu & Kashmir, and hence this provision was also necessary.
Sharma, a former member of the legislative council and chief spokesperson of J&K Congress, in his petition, said the sections have the potential of converting the minority government into a majority and vice versa.
The petition sought a direction to the Lt Governor not to make the nominations to the J&K Legislative Assembly, as it was likely to have the propensity to turn a minority into a majority government.
The MHA, in its affidavit, said the petitioner’s anxiety "remains an anxiety" as the situation did not arise in the 2024 assembly elections and said the plea was filed prematurely.
In a post on X, the PDP president reacting to the centre's affidavit said, "GOIs (government of India's) decision to nominate 5 MLAs in J&K after holding elections is a blatant subversion of democratic principles.
"Nowhere else in the country does the Centre handpick legislators to override the public mandate. In India’s only Muslim-majority region, long marred by conflict, this move feels less like governance and more like control, " she said.
Mufti said following the "illegal bifurcation" of the erstwhile state, skewed delimitation and discriminatory seat reservations, this nomination is yet another body blow to the idea of democracy in J&K.
"Representation must be earned through the people’s vote, not granted by central decree," she said. "This cannot be allowed to become the norm. Hope Omar Abdullah government rises to the occasion by challenging this undemocratic precedent because silence now would be complicity later."