Hon. Chief Minister of West Bengal (WB) Smt. Mamata Banerjee, in order to continue as Chief Minister, has to get elected as a member of WB legislature latest by 5th November 2021 in terms of article 164 (4) of the Constitution as she is not such a member as of now. Else she will have to step down on that date.
Once bitten twice shy, she will obviously contest from a safe constituency and would get elected easily. The issue is not that. The issue is whether election could be held sufficiently in advance due to pandemic to enable her to qualify as an elected member of legislature. WB does not have bicameral legislature and has only legislative assembly. She therefore has to get elected to the assembly by direct election. The luxury which Hon. CM of Maharashtra Uddhav Thackerey had of getting elected to legislative council, thanks to obliging election commission, and avoiding the ignominy of having to step down as CM, is not available to Mamatadidi.
As per section 151 A of the Representation of the people Act 1951 it is mandatory to hold bye-election to fill a vacancy in the house within six months from the date on which the vacancy occurs. However this mandate is not applicable if the remainder of the term of a member in relation to a vacancy is less than one year or if the election commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.
It is therefore that, if severity of pandemic continues unabated and if the third wave arrives as predicted, then election commission will not be able to hold bye-election in West Bengal. In that case CM Banerjee will have to step down as CM and another MLA will have to be anointed in her place. That she will later on get elected and can once again become CM is a different matter. But her stepping down will be a serious political setback for a boisterous politician like her and it will provide her opponents with enough ammunition to humiliate her. It may be remembered in this context that she has challenged the election victory of Shri Suvendu Adhikari, her one time protege, from Nandi gram where she was defeated. The petition is awaiting hearing and disposal at Calcutta High court.
Ex BJP CM of Uttarakhand Shri Tirath Singh Rawat also had to get similarly elected to legislative assembly. But BJP, by asking him to step down from the post has subtly indicated that it is not pressing for by election during the difficult period of pandemic. It may not be wrong to say that BJP by thus creating a back ground for trying and ensuring that election in West Bengal is also not held, has signaled it’s strategy for WB if and when time comes.
The reports that have appeared in print media suggest that Trinamool Congress leaders are saying that they have alternative plans ready to face such an eventuality. One option is to create legislative council in WB. CM Banerjee had spoken about it after she became CM for the third time. Article 169 of the constitution provides, by law made by parliament, for abolition of legislative council where there is one and for creation of one where there is none. The pre-condition is that the legislative assembly of the State has to pass a resolution to that effect by a majority of the total membership of the assembly and by a majority of not less than two-thirds of the members of the assembly present and voting.
It is easy for WB assembly to pass such a resolution given the kind of majority Trinamool Congress has in the house. However as article 169 uses the words “Parliament may by law provide for abolition or creation” and does not say “Parliament shall by law provide for abolition or creation” it is not mandatory for Parliament to enact such a law even if state assembly passes the requisite resolution. This argument gets support from the words used in the immediately following article 169 (2) which while stipulating provisions pertaining to amendment to the constitution that have to be included in the said law uses the words “Any law referred to in clause (1) shall contain.”
What it means is that while it is not mandatory to make such a law it is mandatory to include provisions stipulated in article 169 (2) if such law is made. Supreme Court has time and again said that legislature uses the words thoughtfully and therefore unless there is an ambiguity, words should be read to have a meaning which is commonly understood and furthers the intent of the law.
Another more important point is that it does not at all seem likely, anytime soon, that central government will make such a law to provide a free passage to her given the current hostility and animosity between the two. This option therefore is not easy. It is good only on paper but difficult to become a reality.
The other option Trinamool leaders are mulling is that CM will resign two days before the deadline and will again take oath as CM after two days.
This option is legally untenable and smacks of ignorance of the correct legal position. Such an action would be vulnerable to a successful challenge in the court of law in view of the clear stand already taken by the Supreme court on the subject.
Supreme Court in S.R.Chaudhuri vs State of Punjab & Ors 17 August, 2001 Appeal (civil) 244 of 1997 has said that “Reappointment of such a person, who fails to get elected as a member within the period of grace of six consecutive months, would not only disrupt the sequence and scheme of Article 164 but would also defeat and subvert the basic principle of representative and responsible Government. Framers of the Constitution by prescribing the time limit of “six consecutive months” during which a non-legislator Minister must get elected to the legislature clearly intended that a non-legislator cannot be permitted to remain a minister for any period beyond six consecutive months, without getting elected in the meanwhile.
Resignation by the individual concerned before the expiry of the period of six consecutive months, not followed by his election to the legislature, would not permit him to be appointed a Minister once again without getting elected to the legislature during the term of the legislative assembly. The “privilege” of continuing as a Minister for “six months” without being an elected member is only a one time slot for the individual concerned during the term of the concerned legislative assembly. It exhausts itself if the individual is unable to get himself elected within the period of grace of “six consecutive months”.
It would be perversion of the Constitution and even a fraud on it. Articles 164(1) and 164(4) have therefore, to be so construed that they further the principles of a representative and responsible government”….. Even a most liberal interpretation of Article 164(4) would show that when a person is appointed as a Minister, who at that time is not a member of the legislature, he becomes a Minister on clear constitutional terms that he shall continue as a Minister for not more than six consecutive months, unless he is able to get elected in the meanwhile. To construe this provision as permitting repeated appointments of that individual as a Minister, without getting elected in the meanwhile, would not only make Article 164(4) nugatory but would also be inconsistent with the basic premise underlying Article 164.
It was not the intention of the Founding Fathers that a person could continue to be a Minister without being duly elected, by repeated appointments, each time for a period of six consecutive months. If this were permitted, a non- legislator could by repeated appointments remain a Minister even for the entire term of the Assembly- a position wholly unacceptable in any parliamentary system of government. Such a course would be contrary to the basic principles of democracy, an essential feature of our constitution. The intention of the framers of the constitution to restrict such appointment for a short period of six consecutive months, cannot be permitted to be frustrated through manipulation of “reappointment”.
Supreme Court of India in HAR SHARAN VERMA Vs. TRIBHUVAN NARAIN SINGH, CHIEF MINISTER U.P. & ANR. 1971(1) SCC 616. has held there is thus no reason why the plain words’ of cl.(4) of Art. 164 should be cut down in any manner and confined to a case where a Minister loses for some reason his seat in the Legislature of the State. The Court opined that the Governor has the discretion to appoint, as a Chief Minister, a person, who is not a member of the legislature at the time of his appointment but the Chief Minister is required, with a view to continue in office as a Chief Minister, get himself elected to the legislature within a period of six consecutive months from the date of his appointment.
Secondly, her reappointment will be a “Colourable action” because what cannot be done directly cannot will be sought to be done indirectly. It is a settled principle of law that this way you cannot make provisions in law or constitution ineffective.
Many tall leaders of regional and all India parties simultaneously contest the election from two constituencies to avoid an embarrassing situation. But Mamata Banerjee chose not to do so. Time will only tell whether this was a misplaced overconfidence.
In the circumstances CM Mamata does not seem to have any option but to keep praying that pandemic either vanishes or it’s ferocity reduces substantially so that the election could be held and humiliation avoided. We need to wait and watch for a while to see if her legal pundits are able to invent or discover any other remedy to wriggle out of this situation.
V.T.Gokhale
(Author is legal consultant and observer of political events)
