The space of discussion on electoral politics was disproportionately occupied by West Bengal before the Assembly elections and continues to be the case after Mamata Banerjee took oath as Chief Minister. While the Trinamool Congress won with a massive mandate, Ms. Banerjee lost to Suvendu Adhikari in Nandigram. Going by the provisions of the Constitution and in a normal situation, it should have been possible for the Election Commission of India (ECI) to hold by-elections to the seven vacant Assembly seats in West Bengal by now. But there is also a provision by which by-elections can be deferred for six months. If by-elections are held on time, Ms. Banerjee may find it quite easy to get elected from one of the seven seats, but if that does not happen, she will have to resign from the post of Chief Minister. This will cause her major embarrassment even if the State does not face a political crisis.
What the law says
Section 151A of the Representation of the People Act, 1951, mandates the ECI to fill the casual vacancies in the Houses of Parliament and State Legislatures through bye-elections within six months from the date of occurrence of the vacancy, provided that the remainder of the term of a member in relation to a vacancy is one year or more. While the ECI cannot cancel a national or State election, it can cancel an election to a seat in case of a death or an offence as this generally does not impact Assembly formation in the Centre or the State. Under Section 153 of the Act, read with Article 324 of the Constitution, the ECI can extend the time for completing any election, but such extension should not go beyond the six months. Article 172(1) states that in case of a state of Emergency, an election can be postponed for one year at a time in addition to a period of six months after the Emergency is lifted. It is important to note that Emergency here refers to a threat to the security and sovereignty of the nation, not a pandemic.
The Kolkata municipal elections, which were to be held before the Assembly elections, have also not been held yet. Given the strictures passed by the Madras High Court on the ECI at the time of the West Bengal Assembly election, the ECI would like to play it safe. If by-elections are not held within six months of the stipulated time, Ms. Banerjee will have to resign from her post. This is because Article 164(4) the Constitution states that “a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister”. The Supreme Court reaffirmed this in a 2001 ruling in the case pertaining to the re-appointment of Tej Prakash Singh notifying that if a non-MLA has served as minister for six months without getting elected to the Assembly, he cannot be reappointed as minister during the same term of the House. The son of the assassinated Punjab Chief Minister Beant Singh became a minister without being elected to the Assembly for six months and then resigned and again became a minister in 1995-96. The case brought the spotlight back on Jayalalithaa as she had managed to pull off another term as the Chief Minister of Tamil Nadu despite having been disqualified to contest elections. Ms. Banerjee, thus, has three more months to get elected as an MLA to continue in the Chief Minister’s chair.
No Upper House in West Bengal
If Ms. Banerjee is forced to resign, the Bharatiya Janata Party (BJP) will likely take the moral high ground by remarking that the Trinamool appointed a leader who didn’t win the election as Chief Minister when the BJP itself has faced similar situations. In 2017, the BJP appointed Manohar Parrikar as the Chief Minister of Goa, who was then the Union Defence Minister, when Laxmikant Parsekar lost his Assembly seat. In 2014, the BJP’s Chief Minister front-runner, Arjun Munda, lost the election while his party won in the State. The party appointed Raghubar Das as the Chief Minister of Jharkhand. When Yogi Adityanath became the Chief Minister of Uttar Pradesh in 2017, he was not a member of the U.P. Assembly. He was elected an MLC within six months of taking oath as Chief Minister. Both his deputies, Dinesh Sharma and Keshav Prasad Maurya, entered the political foray through the Upper House along with him within six months. Uddhav Thackeray opted for the same route in 2019 in Maharashtra. But this route is not available to Ms. Banerjee as West Bengal has no Upper House. Though the Trinamool has passed a resolution for the Upper House to be reinstated in West Bengal, this seems unlikely to fructify because it also requires the approval of both Houses of Parliament. Both Rajasthan and Assam also passed resolutions in their Assemblies, in 2012 and 2010, respectively, for the same, but these resolutions are pending in the Rajya Sabha. West Bengal faces uncertainty and possibly a political crisis.
Sanjay Kumar is Professor at the Centre for the Study of Developing Societies (CSDS) and Aastha is a Researcher with Lokniti, a research programme of CSDS. Views are personal
