- After the amendment of the J&K Reorganization Act, Article 239A of the Constitution, which is applicable to the Union Territory of Puducherry, is also applicable to the Union Territory of J&K.
After the completion of polling of all three phases of the Jammu and Kashmir Assembly elections, an intense debate has been generated on the issue of the nomination of five Members of the Legislative Assembly.
As nothing has been cleared in the “The Jammu and Kashmir
Reorganization (Amendment) Bill, 2023”, passed by the Lok Sabha on December 6, 2023, and published in the Gazette of India on December 15, 2023, regarding these nominations, political parties and experts are divided on this issue.
While the opposition parties have warned the BJP against nominating its members for these seats, the ruling BJP has made it clear that it is the prerogative of the Lieutenant Governor to make these nominations.
As far as the nomination of two women MLAs is concerned, it is mentioned in Part III, section 15 under the tittle “Representation of Women” of the Jammu and Kashmir Reorganization Act 2019 that—-
“—Notwithstanding anything in sub-section (3) of section 14 the Lieutenant Governor of the successor Union territory of Jammu and Kashmir may nominate two members to the Legislative Assembly to give representation to women if in his opinion, women are not adequately represented in the Legislative Assembly”.
The same is the story of the nomination of two members of the Kashmir migrants and one from the displaced Persons of Pakistan-occupied Jammu and Kashmir.
Provision to nominate two members from the Kashmiri Migrants and one from displaced persons from PoJK was made under the Jammu and Kashmir Reorganization (Amendment) Act 2023.
“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.
Explanation.—For the purposes of this section, the term "Migrant" shall have the same meaning as assigned to it in clause (e) of section 2 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
“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. Explanation.—For the purposes of this section, the term "displaced person" means any person, who, on account of the setting up of the dominions of India and Pakistan, or on account of civil disturbances or fear of such disturbances in any area of the then State of Jammu and Kashmir presently under occupation of Pakistan, during the years 1947-48, 1965 and 1971, had left or had been displaced due to such disturbances from his place of residence in such area and who has been subsequently residing outside such area and also includes successors-in-interest of any such person”
Jammu and Kashmir’s legislative assembly is set for a historic change. For the first time, five nominated members will play a significant role in forming the government, representing Kashmiri displaced persons and those from Pakistan-Occupied Jammu and Kashmir. They’ll hold full legislative powers and privileges, like elected representatives.
This move follows an amendment to the Jammu and Kashmir Reorganization Act. The nominated members will be selected after vote counting concludes on October 8, potentially leading to a government formation by October 15.
Representation for Displaced Communities
These nominated MLAs will represent:
1. Two Kashmiri displaced persons (one woman, one man)
2. One member from Pakistan-Occupied Jammu and Kashmir (POJK)
3. Two women members.
These representatives will hold full legislative powers and privileges, equivalent to those of elected MLAs. This inclusion addresses the long-standing demand for representation from these communities.
Expanded Legislative Assembly
The Jammu and Kashmir Legislative Assembly will expand to 95 members, including:
1. 90 elected MLAs
2. 5 nominated MLAs
This expansion increases the majority threshold to 48 seats to form a government.
Nomination Process
The Lieutenant Governor will nominate these members based on advice from the Home Ministry. This process follows an amendment to the Jammu and Kashmir Reorganization Act, 2019, revised as Jammu and Kashmir Reorganization (Amendment) Act 2023.
Article 239-A is implemented in J&K after amendment of J&K Reorganization Act 2019
The Jammu and Kashmir Reorganisation (Amendment) Ordinance, 2021 was promulgated on January 7, 2021. It amends the Jammu and Kashmir Reorganisation Act, 2019.
The Act provides for the bifurcation of the state of Jammu and Kashmir (J&K) into the Union Territory of J&K and the Union Territory of Ladakh. Key features of the Ordinance include:
Application of provisions on elected legislatures: The Act provides that Article 239A of the Constitution, which is applicable to the Union Territory of Puducherry, shall also apply to the Union Territory of J&K.
Article 239A provides for the constitution of a Union Territory of Puducherry with:
(i) a legislature, which may be elected, or partly nominated and partly elected,
(ii) or (ii) a Council of Ministers.
The Ordinance states that in addition to Article 239A, any other provision of the Constitution that refers to elected members of a legislative assembly of a state and is also applicable to the Union Territory of Puducherry will apply to the Union Territory of J&K.
Merging of administrative cadres: The Act specifies that the members of the Indian Administrative Service, the Indian Police Service and the Indian Forest Service serving in the state of J&K would continue to serve in the two union territories, based on allocation decided by the central government.
Further, in the future, postings of officers in the two union territories would be from the Arunachal Goa Mizoram Union Territory (AGMUT) cadre. The AGMUT cadre covers the three states of Arunachal Pradesh, Mizoram, and Goa, as well as all the union territories.
The Ordinance amends these clauses to provide for the merger of the officers in the existing cadre of J&K with the AGMUT cadre.
