Who Gets to Shape a Union Territory’s Legislature?

A legislature is usually understood through the people who elect it.

But that is only half the story in some parts of India.

In a Union Territory with an elected Assembly, representation can reach the House through two different institutional routes: voters can elect members, while the law can also provide for nominated members. The significance of that distinction lies not merely in the number of nominees, but in the authority that decides who enters the legislature without facing an election.

This creates an unusual constitutional question: when elected and nominated legislators coexist, who has the authority to determine the composition of the House beyond the electoral process?

The answer is not uniform across India’s Union Territories. And that is precisely what makes the question important.

The constitutional exception

Union Territories do not occupy the same constitutional position as States.

Most Union Territories do not have elected legislatures at all. Their administration is carried out through administrators appointed by the Union. But the Constitution allows Parliament to establish legislatures for particular Union Territories, resulting in institutional arrangements that do not follow the conventional State model.

Puducherry is one such example. Under the Government of Union Territories Act, 1963, its Assembly has 30 elected members, while the Central Government may nominate not more than three additional members.

Jammu and Kashmir presents a newer version of the same institutional question. The J&K Reorganisation Act, 2019, as amended in 2023, provides for 90 elected seats. Sections 15, 15A and 15B additionally permit the Lieutenant Governor to nominate up to five members: two women, up to two Kashmiri migrants, of whom one must be a woman, and one displaced person from Pakistan-occupied Kashmir.

On paper, the numbers appear simple.

The constitutional question is not.

It concerns who exercises the nomination power, and whether that power is institutionally connected to the elected government of the territory or can be exercised independently by an authority representing the Union.

That is where the accountability question begins.

Nomination is not simply another form of representation

Nomination is not unusual in India’s constitutional system.

The Rajya Sabha, for instance, contains nominated members. State Legislative Councils also include nominated members. Those arrangements, however, operate within defined constitutional relationships: the President nominates Rajya Sabha members on the aid and advice of the Union Council of Ministers, while Governors nominate members to State Legislative Councils on the advice of the State Council of Ministers.

Union Territory legislatures can operate differently because Parliament has created their institutional structures through specific legislation.

The issue, therefore, is not whether nomination itself is compatible with representative government. India’s constitutional system already recognises it.

The more difficult question is where accountability lies when the authority making the nomination is not politically answerable to the elected government whose legislature is being constituted.

This becomes particularly significant when nominated members possess voting rights.

A nomination can therefore have consequences beyond simply increasing the number of legislators. In a relatively small Assembly, the timing of nominations, the voting rights attached to them and the circumstances in which the House is making decisions can all affect legislative arithmetic.

That is why the legal source of the nomination power matters.

Puducherry offers an important precedent

The issue is not entirely new.

The nomination of members to the Puducherry Assembly was examined in K. Lakshminarayanan v. Union of India. The Supreme Court ultimately upheld the Union government’s authority to nominate three members and rejected the argument that the nominations required the advice of the Union Territory’s Council of Ministers.

The case demonstrates that the constitutional relationship of a Union Territory cannot simply be assumed to operate in the same way as that of a State.

The litigation also exposed an institutional question about how clearly the law should identify the authority responsible for nominations. The Madras High Court had suggested greater statutory clarity on this point, although those recommendations did not survive the Supreme Court’s decision on appeal.

The constitutional significance of the case extends beyond the immediate dispute.

A legislature may derive most of its composition from elections while a separate legal mechanism determines a smaller part of the House.

The existence of that mechanism is one question. The accountability attached to its exercise is another.

J&K makes the question more consequential

Jammu and Kashmir places that issue in a more consequential setting because the nomination power is vested directly in the Lieutenant Governor.

The Union Home Ministry has argued before the Jammu & Kashmir and Ladakh High Court that the Lieutenant Governor can exercise the power to nominate five members without the aid and advice of the Council of Ministers.

That position brings the institutional question into sharper focus.

The J&K Assembly has 90 elected seats and may have up to five nominated members. Numerically, the nominated component is much smaller than the elected component. But numbers alone do not determine its institutional significance.

The relevant questions include when the nominations are made, whether the nominated members can vote, and how their votes operate alongside those of elected members of the House.

This turns what appears to be a question about appointments into a question about the construction of legislative authority.

If the elected government has a role in recommending nominees, the nomination process remains connected to an executive that derives its political authority from the elected Assembly.

If the Lieutenant Governor can act independently, the chain of institutional accountability takes a different form: an office operating within the Union’s constitutional framework would possess an independent route into the composition of a legislature whose elected members derive their authority from voters.

Neither description, by itself, establishes that the arrangement is unconstitutional.

But they describe two different accountability structures.

The Delhi comparison reveals the underlying principle

Delhi provides a useful comparator precisely because its arrangement is different.

The Delhi Assembly contains 70 elected members and no nominated MLAs. Its relationship with the Lieutenant Governor is governed by Article 239AA and has been examined extensively by the Supreme Court.

In the 2023 Government of NCT of Delhi v. Union of India judgment, the Court articulated the idea of a “triple chain of command”: civil servants are accountable to ministers, ministers to the legislature, and the legislature to the electorate. The Court held that the Lieutenant Governor is ordinarily bound by the aid and advice of the Council of Ministers in matters within the Assembly’s legislative domain.

The case, however, concerned control over services rather than nomination of legislators.

That distinction matters.

The Delhi judgment therefore cannot simply be treated as directly resolving the J&K nomination dispute. What it does provide is a constitutional lens through which the issue can be examined: public authority is ordinarily embedded in institutional chains that connect executive action to elected institutions and, ultimately, to voters.

The unresolved question is whether that principle necessarily extends to a statutory power of nomination.

That remains a question of constitutional interpretation.

The arithmetic is easier than the authority

This is where the debate can become overly numerical.

Suppose an Assembly has 90 elected members and five nominated members. It may seem that five members are too few to alter the representative character of a House dominated by elected representatives.

But the significance of those five members cannot be determined from their number alone.

Their importance depends on the legal powers attached to them, the timing of their nomination, the voting questions before the House and the circumstances in which legislative or majority decisions are being taken.

More importantly, arithmetic does not resolve the constitutional issue.

A legislature can be overwhelmingly elected and still raise an institutional question about who has the authority to determine the remaining members of that legislature.

Representation is therefore shaped not only by how many seats are filled through elections, but also by the legal rules governing the other routes through which members enter the House.

The deeper question is not whether nominated members are “democratic” or “undemocratic” in the abstract.

It is who is constitutionally authorised to nominate them, and to whom that authority is accountable.

Why the distinction between a State and a Union Territory matters

The constitutional position of Union Territories explains why State-level assumptions cannot simply be applied to them.

The Union has a more direct constitutional role in the administration of a Union Territory. Parliament can establish a legislature and define its powers through legislation. This can produce a hybrid structure in which an elected government and legislature coexist with significant institutional powers retained by the Union.

Jammu and Kashmir illustrates this arrangement clearly.

Its Assembly can legislate on subjects in the State List, except areas such as public order and police, while the Lieutenant Governor retains significant authority in areas outside the Assembly’s legislative competence. The J&K Reorganisation Act also provides for a Council of Ministers to aid and advise the Lieutenant Governor on matters within the Assembly’s competence, while identifying areas in which the Lieutenant Governor acts in discretion.

The nomination issue therefore sits within a much larger constitutional architecture.

It is not merely about five individuals.

It concerns the extent to which an elected legislature’s representative character is determined by electoral choice within a system where the Union continues to retain significant institutional authority.

What remains unresolved

Two principles have to be considered together.

The first is that Union Territories are constitutionally distinct from States. Parliament has deliberately created different institutional arrangements for them, and those arrangements can include nominated representation.

The second is that once an elected legislature exists, questions concerning its composition inevitably intersect with democratic accountability.

The Puducherry precedent establishes that a Union nomination power can exist without being based on the advice of the territorial Council of Ministers. The Delhi jurisprudence places considerable emphasis on the institutional relationship between elected governments, legislatures and voters. The J&K dispute asks how those principles interact with a statutory nomination power expressly vested in the Lieutenant Governor.

That question cannot be answered by counting seats alone.

Nor can it be answered by assuming that every Union Territory must function like a State.

The answer has to emerge from the constitutional and statutory design applicable to the particular territory.

And that is why the J&K question carries significance beyond the number five.

The larger institutional question

Democracy is often imagined as a straightforward sequence:

citizens vote → representatives are elected → the legislature reflects the electorate.

Union Territory legislatures reveal a more complicated institutional arrangement.

In some cases, voters determine most of the House while another legal mechanism determines a smaller portion of its membership. The resulting legislature is therefore shaped through both electoral choice and institutional appointment.

That does not, by itself, make nominated representation illegitimate.

It makes the rules governing nomination consequential.

The central question is not simply who sits in the legislature.

It is who has the authority to shape its composition before it begins to exercise legislative power.

Once representation can enter through more than one institutional route, democratic accountability depends not only on who wins an election, but also on who controls the constitutional machinery through which the legislature itself is assembled.