Mamata Banerjee refuses to resign. What happens next?

Mamata Banerjee has refused to resign after the BJP's victory in Bengal, alleging the election was rigged, and the state was forcibly captured. With the government's term ending on May 6, can she hold onto her seat?

In Short

• Mamata Banerjee's TMC loses Bengal polls, they get 80 seats to BJP's 207
• She claims Election Commission allied with BJP, citing SIR voter name deletions
• Current Bengal government's term is slated to end on May 6

"I don't hold a chair, I'm a free bird," an unfazed Mamata Banerjee said at a packed press conference on Tuesday, a day after losing both Bengal and her Bhabanipur seat to arch rival BJP. Minutes later, the tone turned defiant. "I won’t resign. I didn't lose," the 71-year-old outgoing Chief Minister declared, prompting questions on the constitutional implications of her refusal to step down. With the current Bengal government's tenure ending on May 6, can she hold onto her seat like she announced?

Constitutional law expert and former Secretary-General of Lok Sabha, PDT Achary, bluntly said that currently there is nothing that allows her to stay in the chair. "Even if she doesn't resign, it doesn't matter. The governor would have asked her to continue till the next Chief Minister took oath. But constitutional provision says a government cannot continue after five years," he told India Today.

Achary said that even if Banerjee resigned today, the governor would ask her to continue till the new Chief Minister took oath. "Technically she doesn't need to resign at all. She can only stay the CM till May 6 by operation of the Constitution of India. On that date, she ceases to be CM," Achary explained.

Senior advocate Shekhar Naphade also echoed Achary, saying the TMC chief's resistance will not make any difference. The Governor can dismiss the state Assembly and the government's term will end because the five-year-mandate has concluded. He explained how the TMC chief's decision to not resign is against the Constitution of India.

He further said that if she doesn't comply with the rules, then the Governor will not be left with any choice but to dismiss the government. "That would be in tune with the provisions of the Constitution."

Senior advocate Rebecca M John also said that there is no legal basis to defer resignation. "Politically, she is making a point, but legally, formal resignation is a mere polite convention. The Assembly dissolves at the end of its constitutional tenure," John added.

CAN SHE CHALLENGE THE ELECTION RESULTS?

Under the representation of the Peoples Act, election results can be challenged before the High Court. Section 100 enumerates the grounds on which an election of a returned candidate may be challenged and declared void. These provisions include non-compliance with rules by the returning officer, corrupt practice by the candidate, among other reasons.

"One can challenge the election results in an election petition before the High Court, but that is a separate process and has nothing to do with the end of the mandate of the House," Achary said, adding that even if the petition is filed, it will only be heard later.

Naphade said that only if a court sets aside the election will it be nullified. "The Election Commission has issued a necessary notification... Unless some competent court sets aside the election on grounds available, everybody is bound by the results declared by the Election Commission. And in these circumstances, the honourable Chief Minister is under an obligation to tender her resignation."

Naphade added that Mamata Banerjee is, however, free to challenge the poll results on whatever forum is available. "Nobody can put that kind of restriction on her."

The Supreme Court, in the Azhar Hussain vs Rajiv Gandhi case in 1986, the bench stated, "The results of an election are subject to judicial scrutiny and control only with an eye on two ends. First, to ascertain that the 'true' will of the people is reflected in the results and second, to secure that only the persons who are eligible and qualified under the Constitution obtain the representation. In order that the 'true will' is ascertained, the courts will step in to protect and safeguard the purity of elections. For, if corrupt practices have influenced the result, or the electorate has been a victim of fraud or deception or compulsion on any essential matter, the will of the people as recorded in their votes is not 'free and true' will be exercised intelligently by deliberate choice. It is not the will of the people in the true sense at all. And the Courts would, therefore, be justified in setting aside the election in accordance with the law if corrupt practices are established.”

WHAT ABOUT TMC'S SIR DELETIONS AND ALLEGATIONS AGAINST ECI?

Experts said that the ongoing case in the Supreme Court regarding SIR deletions and fairness will also not have any effect on the poll results. "If there are large-scale departures and allegations of misconduct of elections, then the election can be challenged in a writ petition instead of an election petition. But that, again, is a separate proceeding and has nothing to do with the CM's resignation or departure. The Chief Minister will go as per the Constitution," said Achary.

On April 13, a petition before the Supreme Court bench comprising Chief Justice Suryakant and Justice Joymalya Bagchi had argued that the large number of deletions of voters could "materially affect" the election result. In response, Justice Bagchi observed that the court may "consider what is to be done" in such a situation.

"Unless and until there is an enormous number of voters excluded or materially affecting the election...the election cannot be cancelled. If 10 per cent does not vote and the winning margin is more than 10 per cent, then if it's less than 5 per cent, then we have to apply our mind," the bench noted.

The Chief Justice, however, rejected this argument as an "academic exercise", observing that the issue was "premature" since the election results were not available.

WHAT DOES THE CONSTITUTION SAY?

Article 172 of the Constitution of India defines the 'Duration of State Legislatures'.

It says, "Every Legislative Assembly of every state, unless dissolved sooner, 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. Provided that the said period may, while a proclamation of emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the proclamation has ceased to operate.

This means that on May 7, the Bengal Vidhan Sabha and the state government based on the 2021 Assembly election mandate will dissolve automatically.

BENGAL POLL RESULTS

The Trinamool Congress lost the Bengal polls to the BJP by a landslide. The saffron won 207 seats to a mere 80 managed by the TMC. The victory, a massive political shift, caused high drama on Monday when counting was underway. Banerjee claimed she was manhandled and thrashed by CRPF forces at the Bhabanipur counting centre. She ultimately lost the seat, considered her bastion, to former aide and arch-rival BJP's Suvendu Adhikari.

Besides, the BJP – that dramatically increased its seat count over two decades – made significant breaches in many other Trinamool Congress strongholds, including getting sizeable women votes. The RG Kar rape and murder of a woman doctor was a big factor in fuelling the anti-incumbency factor. However, the TMC claimed that the Election Commission colluded with the BJP and "looted 100 seats".

- Ends