DAYA SAGAR
Section -14 of the J&K Reorganisation Act, Act-34 0f 2019 provides for 90 members of Legislative Assembly of UT of J&K by direct elections over 90 single member constituencies and Section -15 of Act provides by nomination “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 arenot adequately represented in the Legislative Assembly.
Further The J&K Reorganisation Act 2019, Act 34 of 2019 as amended through Act 35 of 2023 adding (i) Section-15Aalso provides < Notwithstanding anything contained in sub-section (3) of section 14, the Lieutenant Governor of the Union territory of Jammu and Kashmir may nominate not more than two members, one of whom shall be a woman, from the community of Kashmiri Migrants, to the Jammu and Kashmir Legislative Assembly>and (ii)Section -15B also provides < Notwithstanding anything contained in sub-section (3) of section 14, the Lieutenant Governor of the Union territory of Jammu and Kashmir may nominate one member from displaced persons from Pakistan occupied Jammu and Kashmir to the Jammu and Kashmir Legislative Assembly>.
So in brief it could be inferred that LG may nominate one person from POJK DPs and upto two persons i.e not necessarily two from Kashmiri migrants out of which one has to be a woman i.e in case only one is nominated then that should be only woman.
As regards the nomination of woman members (upto to two) the Act authorizes the Lt Governor to nominate but with the condition that only if in LG’s opinion, women are not adequately represented ( through direct election for 90 MLAs) in the Legislative Assembly , so for this first need is to wait for normal election results and only then decide for nomination , if felt necessary ,upto two woman.
Sothe strength of the LA could be from 93 to 95 members since as regards the nominated woman members they are not to be necessarily nominated.
The 3rd phase of the regular elections to 1st Legislative Assembly (LA) UT of J&K comprising 90 MLA (single member constituencies )was completed on 1st Oct 2024 and people were waiting for counting & results on 8th October 2024.
But 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 J&K Reorganisation Act 34 of 2019 , 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 the results of regular elections to 1st Legislative Assembly (LA) UT of J&K for direct election to 90 single member constituencies were yet to be announced only on 8th Oct 2024 or after that .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 DPs and Kashmiri migrants. In fairness of the things, in case media reports were to be believed some questions could surely be raised on LG Administration atlleast for the reason that the results for the elections were yet to be declared on 8th Oct 2004 which was the first requirement for finding answer to the question of adequate representation of the woman which was yet to be ascertained and (ii) some could ask, in their wisdom, what was the need to hurry for such nominations ?.Some even went to the extent of acusingthe LG that he was going to help BJP by nomination of 5 members from amongst only the BJP supportersto enable the ‘party’ majority in legislature professing that BJP ‘feared’ falling back by small numbers ..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 but why was not that immediately is not known. Such reports should have been questioned.
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. But the nomination of woman members ( upto two numbers )’in advance’ in terms of Section -15 can not be justified with any justification / 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 at the same time also lays down a very heavy responsibility of wisdom & fairness on the designated Authority & in a way makes the job very hard and those who expect the LG to use the delegation simply to favour some party/ group without caring that his/her 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 shall be a Council of Ministers to aid & provide advice to 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 even if LG can go by the provisions of Sections 15A & 15B without consultation with Council of Ministers it should not be expected froma very ‘senior’ person in Chair to not at all seek opinion of those in his government and so particularly when the nominated MLAs too have to participate in the exercise of functions in relation to matters with respect to which the Legislative Assembly has power to make laws.
One accusation , as made before 8th Oct 2024 ( before declaration of the results of elections to Legislative Assembly of UT of J&K for 90 MLAs was surely wrong which ‘opined’ that LG was using the delegated authority to simply help BJP by making nominations of even the woman members before the election result were declared since LG’s office rests in a Constitutional Chair & Home Ministry of India can never be imagined to go for such ventures which could be questioned even on technicalities. But still one thing surely needed to be answered i.e who floated the names of 5 persons ( with their status in BJP as well like president BJP Mehila Morcha, BJP spokes person, BJP GS, BJP spokesperson, BJP secretary) in the media before2024 ? But that was not done.
No any official orders before 8th Oct 2024 for nominations under Sections -15, 15A and 15B had been issued so the reports circulated by media were ‘false’. But some damage had been surely done at ‘social’ levels.
To be continued
(The writer is Sr Journalist and social activist & analyst J&K affairs dayasagr45@yahoo.com 9419796096)