The Hindu Editorial Analysis
14 August 2025
Aid and advice
(Source – The Hindu, International Edition – Page No. – 8)
Topic : GS 2: Functions and responsibilities of the Union and the States
Context
L-G’s unchecked nominations could undermine J&K’s polls.
Introduction
The Union Ministry of Home Affairs’ stand on the Lieutenant-Governor’s nomination powers in Jammu & Kashmir raises critical concerns about democratic accountability. Allowing five nominated members with voting rightswithout the aid and advice of the elected government risks undermining the Constitution’s basic structure by enabling administrative discretion to alter legislative majorities and potentially overturn the people’s mandate.
Ministry’s Assertion and Democratic Concerns
- MHA’s Stand: The Union Ministry of Home Affairs told the J&K High Court that the Lieutenant-Governor (L-G) can nominate five Assembly members without the “aid and advice” of the elected government.
- Accountability Question: Such nominations, especially when they carry voting rights, must be rooted in a democratic mandate, not administrative discretion.
- Core Constitutional Issue: The High Court is examining whether the 2023 amendments to the J&K Reorganisation Act—allowing the L-G to nominate five members—violate the Constitution’s basic structure by enabling shifts in legislative majority.
- Potential Impact: These powers could allow nominated members to convert a minority government into a majority or vice versa.
Legal Arguments and Precedents Invoked
- Ministry’s Approach: Focuses on technical legal points rather than the constitutional principle at stake.
- Scope of Authority: Argues nominations are outside the elected government’s remit.
- Puducherry Precedent: Cites K. Lakshminarayanan vs The Union of India case to support the L-G’s nomination powers.
- Statutory Justification: References Section 12 of the 1963 Union Territories Act (on voting procedures) to argue nominations can bypass democratic consultation.
- Sanctioned Strength Argument: Claims “sanctioned strength” includes both elected and nominated members—downplaying the risk of altering government stability in a 119-member Assembly.
Implications, Historical Context, and Contradictions
- Amendment Details: Sections 15A and 15B of the 2019 Act permit the L-G to nominate:
- Two Kashmiri migrants (including one woman).
- One person from Pakistan-occupied J&K.
- Two women if underrepresented in the Assembly.
- Historical Example: In Puducherry (2021), nominated members and defecting MLAs contributed to the fall of the Congress-led government.
- Democratic Fragility in J&K: Transition to Union Territory occurred without elected representatives’ consultation. Promise of Statehood restoration remains unfulfilled despite widespread support and Supreme Court acknowledgment.
- Supreme Court’s Position: In Delhi services cases (2018, 2023), SC held that the L-G should generally act on the elected government’s advice, with discretionary powers as rare exceptions.
- Contradiction: The Ministry’s argument undermines this jurisprudence, risking a subversion of electoral verdictsthrough appointed nominees.
Conclusion
Empowering the Lieutenant-Governor to nominate members without democratic consultation risks weakening the representative nature of governance in Jammu & Kashmir. Given the region’s fragile political history, unresolved Statehood restoration, and Supreme Court’s guidance on limiting discretionary powers, any framework enabling appointed officials to alter legislative majorities directly challenges the democratic essence and constitutional integrity of India’s parliamentary system.