NEW DELHI: The Supreme Court has refused to entertain a petition to examine the powers of Lieutenant Governor Manoj Sinha to nominate five MLAs to the Legislative Assembly of Jammu & Kashmir. The petition was filed by Congress leader Ravinder Sharma through senior counsel Abhishek Manu Singhvi. While dismissing the petition on Monday, a Double Bench of Justices Sanjeev Khanna and Justice Sanjay Kumar gave the petition liberty to approach the Jammu, Kashmir and Ladakh High Court.
“We are not inclined to entertain this petition under Article 32 of the Constitution (writ jurisdiction). We leave the petitioner with liberty to move the jurisdictional high court under Article 226 (writ),” the court said in its brief order. Dr Singhvi argued before the Bench that these powers given to LG could prove frustrating in close contest situations.
“Suppose I have a strength of 48 in the 90-member assembly. That’s three above the majority mark. If the LG nominates five MLAs, the other side can become 47 and it boils down to just one member. You can completely frustrate the electoral mandate by using this power… what if they decided to raise the nomination from five to 10 in the future,” Singhvi tried to reason with the Bench.
The judges repelled his argument saying they (read the Centre) must have given reasons why these powers are there. Let the high court examine that and go into the validity of the whole process, the Bench said. As to Singhvi’s argument that the number of nominated MLAs may be raised to 10 by the respondents, the judges said this has not been done.
It bears mention here that the powers given to LG Sinha to nominate five MLAs are based on a law that was passed by the Congress in 1963. At that time, the creation of a legislature for a Union Territory (UT) was the issue being debated and the UT was Puducherry (called Pondicherry ruled by France once). Initially, a wholly nominated legislature was proposed by then Union Home Minister Lal Bahadur Shastri.
After some parliamentarians objected to a wholly nominated legislature, a mixed Legislative Assembly composed of elected and nominated MLAs was proposed. Under Article 239A, a legislature comprising of 30 elected and three nominated MLAs was then created for Puducherry. Even today, the Puducherry legislature has the same composition and the number of nominated MLAs is 10% of their elected counterparts. It can be mentioned here that going by that logic, the number of nominated MLAs can thus be nine if the Centre so decides, by just following a settled precedent.
The petition filed by Ravinder Sharma was mainly targeted at Sections 15, 15A and 15B of the J&K Reorganisation Act, 2019, from which the LG derives these powers to nominate MLAs. The argument of the petitioner was that the nominations can alter the potentially defeat the electoral verdict by tilting the scales in favour of a particular party, or coalition. In fact, in some states too, the practice of nominated MLAs is prevalent and there were two women legislators who were nominated in J&K earlier.
The difference being that in a state, the nomination of MLAs is in the hands of the elected government. Besides, these nominated MLAs do not have voting rights counted while forming a government or in case of a no confidence motion against it. In 2018, the Supreme Court had clarified that the nominated MLAs of a Union Territory have the same rights as their elected counterparts. The reason given by the apex court was that Article 239A of the Constitution does not draw any distinction between nominated and elected MLAs.
