The Union home ministry has informed the Jammu and Kashmir High Court that the lieutenant governor can nominate five members to the Assembly without the advice of the Union Territory's government, The New Indian Express reported on Monday.

The Legislative Assembly in Jammu and Kashmir has a strength of 119 members, including 24 seats reserved for areas in Pakistan-occupied Kashmir. The Assembly elections in September and October were held in 90 constituencies.

The lieutenant governor has the power to appoint five members to the remaining five seats. Therefore, in the 95-member House, a party or alliance needs 48 seats to secure the majority.

Two of the nominated members, including one woman, must be from the “community of Kashmiri migrants”. One person must be from the community of “displaced persons” from Pakistan-occupied Kashmir. The remaining two must be women – a provision carried over from the Constitution of the erstwhile state, which was bifurcated in 2019 into two Union Territories: Jammu and Kashmir, and Ladakh.

The nomination of the five members to the Assembly is “outside the realm” of the Jammu and Kashmir government’s business, the newspaper quoted the Centre as having told the court.

It said: “Once Parliament bylaw recognises lieutenant governor as a distinct authority from the government of Union Territory … it necessarily follows that when a power is conferred upon the lieutenant governor, then the same must be exercised as a statutory function and not as an extension of his duties as the head of the UT government.”

The lieutenant governor exercises the statutory duty in his discretion, not as an extension of the Union Territory’s government, the Centre said. Therefore, the lieutenant governor can act without the “aid and advice” of the government, it added.

The lieutenant governor has yet to appoint any of the five nominated members.

The ruling coalition comprising the National Conference, the Congress and the Communist Party of India (Marxist) has 48 MLAs. Additionally, it is supported by a few Independents.

‘Blatant subversion of democratic principles’

The National Conference and the Opposition Peoples Democratic Party criticised the Union home ministry’s statement.

Former Chief Minister Mehbooba Mufti described the Union government’s decision to nominate five members after holding elections as a “blatant subversion of democratic principles”.

“Nowhere else in the country does the Centre handpick legislators to override the public mandate,” Mufti said on social media.

National Conference leader and MLA Tanvir Sadiq said: “When J&K has an elected government with an absolute majority, bypassing it to let the LG handpick members is not governance, it is contempt for the people’s mandate.”

“It strikes at the heart of parliamentary democracy, ignores the constitutional spirit of ‘aid and advice’, and sets a dangerous precedent where unelected appointees can rewrite the people’s verdict,” he said on social media.

Congress leader Ravindra Sharma, who filed the petition in the court, was quoted by The New Indian Express as saying that he will file a rejoinder on Thursday, when the matter is scheduled to be heard next.

Also read: Why nomination to Jammu and Kashmir Assembly has left many Kashmiri Pandits unimpressed