The Supreme Court on Monday rejected a petition challenging the Jammu and Kashmir Lieutenant Governor’s powers to nominate five members to the Legislative Assembly, Live Law reported.

The court, however, allowed the petitioner to approach the High Court.

The bench of Justices Sanjiv Khanna and Sanjay Kumar clarified that it had not expressed an opinion on the merits of the matter.

The Jammu and Kashmir Assembly has a strength of 119 members. While elections took place in 90 constituencies, 24 additional seats have been designated for areas in Pakistan-occupied Kashmir.

The lieutenant governor has the power to appoint five members under the amended Section 15 of the 2019 Jammu and Kashmir Reorganisation Act. Three of the five nominated members have to be women.

A party or an alliance needs 48 seats for a majority when the House has 95 members.

During the hearing on Monday, Abhishek Singhvi, the lawyer representing the petitioner Ravinder Kumar Sharma, argued that nominating legislators risks undermining the electoral mandate, potentially allowing appointed persons to negate the elected majority.

Singhvi contended that once the five members are nominated, the Opposition in Jammu and Kashmir will effectively have 47 seats, which is one short of 48 seats secured by the alliance of National Conference and Congress.

“It’s a basic structure issue,” Singhvi said. “When you have this system of nominating beyond 90… what happens… 48 is my alliance. That’s three above the majority. The total of all the others is 42… If you nominate five… you become 47 and I become 48. You have to only get one more person. You can nullify the elected mandate… a Central government nomination means the person who has won the election can be negated…this is outside of 90.”

“Suppose this five becomes ten tomorrow, by way of an amendment?” he asked.

Khanna, however, noted that the power to nominate the MLAs had not been exercised yet and advised the petitioner to first approach the Jammu & Kashmir and Ladakh High Court.

“If they do something, if the High Court does not give you stay, you can move over here,” Khanna told the petitioner.

The first Assembly elections in Jammu and Kashmir after the Union government abrogated Jammu and Kashmir’s special status under Article 370 in 2019 were held from September 18 to October 1. The results were announced on October 8.

While the National Conference won 42 seats, the Congress clinched six constituencies. Their ally, the Communist Party of India (Marxist), won one seat.

The Aam Aadmi Party, which won one constituency, backed the National Conference. Four Independent MLAs have also extended support to the party.

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