DAYA SAGAR
The Jammu and Kashmir Reorganisation Act, 2019 Act No. 34 of 2019 Act No. 34 of 2019 ( 9th August, 2019.) of Parliament of India (as amended with The Jammu and Kashmir Reorganisation (Amendment) Act, 2023, NO. 35 of 2023 of 15 Dec 2023 ) has Sections -15, 15A & 15B related to the Legislative Assembly of UT of J&K where in there is direct provision for nomination of 3 to 5 members in the Legislative Assembly over and above the normal strength of 90 members through direct elections. There is also a provision for reservations for ST( along with SC members) in proportion to the population to be located & rotated by the Delimitation Commission. In terms of the text of the Act the nominated members can surely be taken for having voting rights in the Legislature.
Originally the Act provided only for the nomination (upto two members ) from among the woman of UT of J&K where the Section- 15 of the Act said < Section-15 – “Representation of women.-Notwithstanding anything in sub-section (3) of section 14 the Lieutenant Governor of the successor Union territory of Jammu and Kashmir may nominate upto two members to the Legislative Assembly to give representation to women, if in his opinion, women are not adequately represented in the Legislative Assembly.” >. This provision surely has a condition i.e “LG may nominate upto two members to the Legislative Assembly to give representation to women, if in his opinion, women are not adequately represented in the Legislative Assembly” , so it could be said that there could be an occasion when there is no need for nomination and also such nomination could be initiated only after the results of an ongoing election / election already held are made public worth knowing the status number of elected woman members in the Legislative assembly.
The J&K Reorganisation Act 2019, Act 34 of 2019 was further amended in 2003 through The Jammu and Kashmir Reorganisation (Amendment) Act, 2023, NO. 35 OF 2023 of 15 Dec 2023 so as to create provision for nomination of 3 more members in the Legislative Assembly i.e in terms of Section- 15A upto TWO members out of Kashmiri Migrants where in one has to be a woman (one could say in case only one is nominated the one / “she” has to be a woman only) and ONE member out of the 1947/1965/1971 Displaced Persons from Pakistan Occupied areas of J&K ( POJK DPs ) in terms of Section-15B .
It had been on 6th October that a news item was on line in media that J&K LG has already decided on names of the 5 nominated persons to Assembly of UT of J&K in terms of Section-15, 15A, 15B of the reorganisation, some statements even said that LG had nominated 5 members ( abp news even carried the names of 5 persons said to be proposed for nomination…Ms Sangeeta Dogra, Mr. Sunil Sethi, Mr. Ashok Koul, Ms Rajni Sethi Fareeda Khan.). Where as regular elections to 1st Legislative Assembly (LA) UT of J&K for direct election to 90 single member constituencies had been over with Phase- III polling on 1st Oct 2024 and counting was yet to be done on 8th October. So such news items were sure to concern some in the ‘line’ as well those atleast from political parties like NC & Congress and also who had been working on ground to pursue the unresolved issues of POJK Dos and Kashmiri migrants. In fairness of the things some questions could surely be raised on LG Administration atlleast for the reason that (i) the results for the elections were yet to be declared on 8th Oct 2003 and the question of even adequate representation of the woman was yet to be ascertained and (ii) that how could such nominations be made without the elected Legislature having being installed & the council of ministers not sworn in.
Some even went to the extent of excusing the LG that he was going to help BJP, to gain majority in legislature alleging that BJP ‘feared’ falling back in numbers, by nomination of 5 members from amongst only the BJP supporters .No doubt raising such questions on LG administration was not fair from any angles since no any official notification had been issued and LG administration had not confirmed any such references in the media. But still there was utmost need to investigate how such news / information was there in media. No doubt as regards Section 15A ( concerning Kashmiri Migrants) and Section 15B concerning POJK DPs ) which in their text do simply say that ” LG may nominate…” out of Kashmiri migrants / POJK DPs. One may contest that for that LG has absolute delegation to nominate & constitution of Legislative Assembly / Council for ministers before such nomination could not be termed as must condition. No doubt such argument could be put forth but the conditions for Section-15 i.e nomination of woman members ( upto two numbers ) cannot be satisfied with any argument unless the nomination is done after election results are announced. It has to be also acknowledged that where constitutionally some discretionary authority is granted that too also at the same time lays down a very heavy responsibility of wisdom & fairness on the designated Authority & in a way makes the job very very hard and those who expect the LG to use the delegation simply to favour some party/ group without caring that his action could be questioned even on moral grounds ,even by one person , surely do not stand to a fair test.
Similarly it is worth noting that the Reorganisation of J&K Act also lays down that there will be a Council of Ministers to aid & provide advice the LG [ Section – 53. Council of Ministers.-(1) There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions…. And Section- 55. Conduct of business.-(1) The Lieutenant Governor shall make rules on the advice of the Council of Ministers .] . And hence it is expected that the LG would surely exercise the delegations in his name very carefully/ & surely there could be no better a source to advise/ provide information to him other than the council of ministers. So LG going for even the provisions of Sections 15A & 15B without Council of Ministers should not be expected from a very ‘senior’ person
Like Manoj Sinha in chair.
One accusation was surely wrong that LG was using the delegated authority to simply help BJP before even before the election results were declared for the reasons that LG’s office is a constitutional Chair & Home Ministry of India can never be imagined to go for such ventures. But one thing surely needs to be answered i.e who floated the names of 5 persons ( with their status in BJP as well like president BJP Mehla Morcha, BJP spokes person, BJP GS, BJP spokes person, BJP secretary) in the media ? Surely it was not the J&K Administration.
To be continued
(The writer is Sr Journalist , analyst J&K affairs and social activist).