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Lieutenant Governor Manoj Sinha's power to nominate five members to the Jammu and Kashmir Assembly was at the centre of a political and legal debate on the eve of vote count, with the Congress and regional parties the National Conference and the People's Democratic Party on Monday opposing any such move during government formation.
The Congress, its ally NC and the PDP have also threatened to move the Supreme Court.
At the heart of the nomination row was whether the LG can exercise the power during government formation or this has to be done with the aid and advice of the council of ministers, amid speculation the five members could play a crucial role in the event of a hung assembly in the union territory.
Counting of votes in the three-phase assembly elections in J and K's journey to get its first elected government since 2019 when Article 370 was abrogated will be taken up on Tuesday.
In the mega battle of alliances, the addition of the five nominated members would take the House strength to 95, and the majority mark to 48. These members, who could be potentially advantageous to the BJP, will have the same powers and voting rights as other MLAs.
Several exit polls on Saturday gave an edge to the Congress' alliance with the NC, with the regional partner projected to emerge as the single largest party.
Legal experts held divergent views on whether the LG can nominate the five MLAs at the time of government formation or at a later stage on the aid and advice of the council of ministers.
The five members will comprise two women, two from the migrant community and one refugee from Pakistan-occupied Jammu and Kashmir (POJK).
Supreme Court advocate Ashwani Kumar Dubey said the Jammu & Kashmir Reorganisation Act 2019, which was amended in 2023, was 'unclear' over the issue whether the nominated MLAs will have a role in the government formation.
About the LG's power to nominate five members and whether it can be exercised without the aid and advice of the council of ministers, former Delhi high court judge Justice (retd) S N Dhingra said one has to wait for the actual poll results and the issue at this stage is premature.
National Conference president Farooq Abdullah said his party might go to the Supreme Court against any move to nominate the five members during government formation process.
"The LG should first of all stay away from this process as a government is being formed. It is for the government to nominate people and send it (nominations) to the LG. That is the normal procedure.
"What they want to do, I do not know. However, if they do it, we will go to the Supreme Court. What is the point in making the government, if the Lord Sahib remains here? We have to fight against all this," Abdullah said in Srinagar.
J and K Congress chief Tariq Hamid Karra said such any such move would amount to rigging the poll results , contrary to the basic concept of democracy and defeating the mandate of the people. PDP leader Iltija Mufti echoed the same sentiments.
Jammu and Kashmir Bharatiya Janata Party chief Ravinder Raina said the nomination of five MLAs by the LG is being carried out in accordance with the Reorganisation Act.
He claimed that the BJP will emerge as the single largest party in the region by securing 35 seats and will form the government with the help of like-minded and independent candidates.