NEW DELHI: The constitutional position is unambiguous regarding a chief minister refusing to resign after her party's defeat in an assembly election. Once the polls have been concluded and certificates issued to the elected MLAs by the Election Commission, the outgoing House automatically stands dissolved. Its successor must be constituted with the appointment of a new chief minister by the governor, who invites the representative of the largest party or an alliance to form the government.
Mamata Banerjee's Controversial Stance
On Tuesday, outgoing West Bengal Chief Minister Mamata Banerjee stoked a controversy by claiming, for the first time, that she would not resign since she has not lost the elections. This disregards the Trinamool Congress's debacle and her own defeat in the Bhabanipur constituency to BJP's Suvendu Adhikari by more than 15,000 votes.
Legal Experts Weigh In
Legal experts, however, are of the view that Banerjee has no option but to step down and pave the way for a new government after the tenure of the assembly expires on May 8. Constitutional expert and senior advocate Abhishek Manu Singhvi stated, "Any person dissatisfied with the results can file an election petition regarding an individual position and constituency within 45 days of the declaration of results. Obviously, there can be no mass or mega election petitions. Equally, obviously, the power to file such challenges in court cannot detract from the unquestionable obligation to resign and vacate the chief minister's chair the moment the election certificates are issued by the Election Commission. Maybe it is a rhetorical outburst, but the legal position is clear that she has to resign on her party being defeated in the assembly elections." He added, "This is the inexorable cycle of democracy and necessarily must be followed by all without exception. The continuance of an incumbent chief minister after an election defeat, unfortunately, will be consequentially legally void."
Senior advocate Rakesh Dwivedi, an expert on constitutional laws, said that if the chief minister does not resign, then the governor of the state concerned has the power to dismiss her. "There is no question of two chief ministers under the constitutional scheme. Constitutional morality and electoral mandate make it a must for the incumbent chief minister to resign and make way for the political party which secured a majority to form government under their representative," he said. "The moment a new assembly is constituted, the party which won the majority in the polls will elect its representative, who will stake its claim to form government before the governor. The governor has no option but to call the party commanding a majority in the House to form government. If Mamata does not resign, the governor can dismiss her."
Constitutional Provisions
Article 172(1) of the Constitution states that the legislative assembly shall continue for five years from the date appointed for its first meeting, and no longer, and the expiration of the said period of five years shall operate as a dissolution of the assembly.
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