Mamata Banerjee’s refusal to resign as chief minister after an election defeat has no parallel in the country’s history, nor does it have constitutional validity or relevance, constitutional experts said on Tuesday.
They said it made no difference whether or not she formally resigned, as the governor was constitutionally bound to invite the leader of the single largest party to try and form the government.
Besides, once elections have been held and the results declared, the previous Assembly ceases to operate and the outgoing cabinet, headed by the outgoing chief minister, loses its constitutional powers, they added.
Article 163 vests the governor with absolute “discretion” in situations unanticipated by the Constitution, perhaps like the one involving Mamata now.
A former Supreme Court judge, Justice K. Sanjay Kishan Kaul, said that if the Trinamool Congress leader had any grievances, she should ideally explore her legal options before the appropriate courts.
“A party is elected for a particular tenure. Once the tenure is over, the government cannot continue in office,” he told The Telegraph.
“If they are dissatisfied with the result, they can take whatever legal recourse available. They cannot continue to hold office.”
Asked what role the governor can play in a situation like the present one, Justice Kaul said: “The governor will have to take a call on that.”
Constitutional expert and former attorney-general K.K. Venugopal echoed him.
“It is the privilege of the governor under constitutional convention to invite the leader of the largest party to form the government,” he said.
“Therefore, the governor will now ignore the fact that she (Mamata) has refused to tender her resignation and, in accordance with constitutional convention, swear in a new chief minister and the members of his cabinet.”
Asked whether there was any precedent of a chief minister refusing to resign after an electoral defeat, Venugopal said: “Not to my knowledge.”
Calcutta-based lawyer Deepan Kumar Sarkar said: “If the previous council of ministers refuses to resign, it ceases to exist immediately upon the new government being sworn in bythe governor.”
He added: “Prior to that, the governor may dismiss the previous council and President’s rule may be imposed. If any other caretaker government is appointed, it would have to be sworn in, even if for a day.”
Article 163 says: “There shall be a Council of Ministers with the Chief Minister at the head ‘to aid and advise the Governor’ in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.”
Article 163(2) adds: “Ifany question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted inhis discretion.”
Article 164(1) says:“The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure ofthe Governor.”
Besides, Article 172 says the legislative assembly of every state shall have a tenure of five years, after which it automatically gets dissolved.
The tenure of the outgoing Bengal Assembly comes to an end on May 7 this year since it was officially constituted on May 8, 2021.
Article 172 says: “Every Legislative Assembly of every State, unless sooner dissolved, shall continue (for five years) from the appointed day of its first meeting and no longer, and the expiration of the said period of (five years) shall operate as a dissolution of the Assembly.”
This five-year tenure was fixed by the 44th amendment with effect from September 6, 1979. Earlier, Assemblies had six-year terms.