New Delhi: While Mamata Banerjee lost the Nandigram constituency in the West Bengal assembly elections, she will be taking oath as chief minister for another term on 5 May.
Banerjee, who led her party Trinamool Congress to a resounding election victory in the state, lost Nandigram to former aide and BJP leader Suvendu Adhikari. The announcement was made by the Election Commission late Sunday night, after several twists and turns during the counting of votes in the constituency. The TMC chief has said she will contest the decision in court.
However, despite losing the constituency, the Constitution allows Banerjee to take up office as chief minister for another term.
According to Article 164(4), an unelected minister can become the CM but he or she will have to get elected within six months of assuming office.
What Article 164(4) says
Article 164(4) of the Constitution allows a non-legislator to occupy a post in the council of ministers, including the office of the chief minister but only for six months. Within these six months, the individual will have to get elected to the assembly or the Legislative Council otherwise he or she will cease to be a minister. The council seats are filled through indirect polling by Legislative Assembly members.
The article states: “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”.
Therefore, this provision allows Banerjee to take oath as the chief minister, but within six months, she will have to win from any constituency in the state in a bypoll. Since West Bengal does not have a Legislative Council, a bypoll win is her only option. If she fails, she will have to step down from the post.
This is also not the first time Banerjee will be assuming office in this way. In 2011 when the TMC chief took oath as West Bengal’s CM for the first time, she had not contested the assembly elections but was elected from Bhowanipore a few months later.
SC on non-legislators assuming office
Constitutional expert Faizan Mustafa also cited this provision and told ThePrint that “there is no legal bar on her taking oath as the chief minister”.
“There is no bar on a non-MLA to become Chief Minister. She can get herself elected within six months as per 164(4)…There are two vacant seats and she can easily win any one of them,” he said.
Furthermore, even the Supreme Court has consistently ruled that in view of Article 164(4), an individual who is not a member of the legislature can be appointed as minister for a short period, but if she is not elected in the six-month period after appointment, she will cease to be a minister.
However, the court also clarified that this six months clause “cannot be permitted to be repeatedly used for the same individual without his getting elected in the meanwhile”.
A similar provision exists with respect to the Parliament as well. According to Article 75(5), a “minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister”.
Other ministers who resorted to Article 164(4)
In the past few years, several politicians who were not MLAs ended up taking oath as chief minister.
Yogi Adityanath was not an elected Member of Legislative Assembly (MLA) when he took over as the Uttar Pradesh Chief Minister in March 2017.
He was elected to the Vidhan Parishad (Legislative Council) in September 2017, becoming a member of the state legislature as a result and also retaining his post.
In fact, UP’s Deputy CMs Dinesh Sharma and Keshav Prasad Maurya, and transport minister Swatantra Dev Singh also got elected similarly.
Maharashtra Chief Minister Uddhav Thackeray was also not an elected minister when he took oath on 28 November 2019. He became a member of the Maharashtra Legislative Council only in May last year to keep his CM’s post.
Meanwhile, Bihar Chief Minister Nitish Kumar has also been holding office as CM through this constitutional provision. Kumar last contested elections in 1985, over 35 years ago.
When the BJP-JD(U) alliance won the 2005 assembly elections, Kumar took oath as CM but was not a member of either of the houses. He was later elected to the Legislative Council within the stipulated time, in early 2006. He has since been re-elected to the council only.
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