The Supreme Court on Monday declined on "jurisdictional grounds" to entertain a petition challenging the "unfettered" powers of the Jammu and Kashmir lieutenant governor to nominate five MLAs, asking the petitioner to first approach the high court.
The bench of Justice Sanjiv Khanna and Justice Sanjay Kumar clarified that it was not commenting on the merits of the arguments advanced by Ravinder Kumar Sharma, a Congress leader from Jammu and Kashmir.
National Conference spokesperson Imran Nabi Dar said his party’s unambiguous stand was that an elected chief minister should nominate the MLAs. "We are waiting to see whether they (the Congress) approach the high court," he said.
Jammu and Kashmir Congress chief Tariq Hameed Karra said the party was happy with the apex court decision, which had left the door open for a challenge to the LG’s power to nominate MLAs.
Senior advocate Abhishek Manu Singhvi, appearing for Sharma, had argued in court that Sections 15, 15A and 15B of the Jammu and Kashmir Reorganisation Act, 2019, which allow the LG to nominate five MLAs, can be used “to completely frustrate the electoral mandate”.
The nominated MLAs, who have voting rights, can play kingmaker in a hung Assembly or help topple governments. This month, the National Conference-Congress combine won the Assembly elections with 48 of the 90 seats. The LG answers to the BJP-led Centre.
Singhvi, who was assisted by senior counsel Sunil Fernandez, argued: “Suppose, I have a strength of 48 members in the 90-member Assembly, which is three members (more than) the majority mark. If the LG nominates five MLAs, the other side becomes 47 MLAs and it boils down to just one member. It can completely frustrate the electoral mandate.”
But Justice Khanna orally observed: “They (LG or the Centre) may or may not nominate, we don’t know. Go to the high court.”
The bench later said: “We are not inclined to entertain the petition… and give liberty to the petitioner to approach the jurisdictional high court.”
The LG has the power to nominate MLAs from among women, Kashmiri migrant communities and displaced people from Pakistan-occupied Kashmir.