Current issues related to the Election Commission of India

This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article gives an overview of the West Bengal Elections, 2021.

Introduction 

Elections are the driving force behind any democratic country. Elections in India are always highly anticipated and nerve-racking. The West Bengal elections of 2021 proved to be the same. Mamata Banerjee’s Trinamool Congress swept away the assembly elections. However, Mamata Banerjee lost in her stronghold Nandigram, where she contested leaving doubts in the minds of the people whether she can be re-elected as the Chief Minister of Bengal despite losing in her constituency? 

West Bengal election – an overview in light of the current instances

The West Bengal elections in 2021 were crucial for the whole political scenario of the country. The Trinamool Congress Party had tough competition this time with the Bharatiya Janata Party (hereinafter BJP) on one hand and the Congress- Left Front- Indian Secular Front alliance on the other. It was the first time that the BJP has presented itself as a strong and dominant political force. The handling of the COVID-19 pandemic has been the raging issue in every election contested since the pandemic broke out. However, various other issues had gained momentum in Bengal like the management of cyclone Amphan, the Citizenship (Amendment) Act, 2019, political and caste political violence. Therefore, this time the Trinamool Congress had a strong opposition as well as strong agendas which would have made them lose the elections. But this wasn’t the case as Mamata Banerjee had won with a two-third majority which was better than their performances in recent years as shown:

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            Year

       Total Seats Won

Total No. of Seats

2011 Assembly Elections

            184

        294

2016 Assembly Elections

            211

        294

2021 Assembly Elections

            213 

        294

The build-up to the election was pretty huge with Prime Minister Narendra Modi and Home Minister Amit Shah themselves leading huge rallies and making sure that the BJP comes out on top. The slogans of “Ab ki Baar 200 paar and Asolo Paribortan” were used frequently and many had thought these slogans to come true but, in the end, they did not. Many Trinamool leaders like Suvendu Adhikari shifted to the BJP and contested for them. How did the Trinamool Congress manage to pull off such an astounding victory against all odds? There are various reasons. 

  • One of the major reasons was the women in West Bengal. Women voters comprise almost 50% of the total Bengal electorate. Mamata Banerjee has worked a lot towards women’s welfare. She has introduced around 200 plus women-centric schemes. The TMC has always earned the praise of women. In both the previous assembly elections which happened in 2011 and 2016, around 53% of votes for TMC are believed to have come from women. Hence, women seemed to have continued the trend in these elections also. 
  • The next reason is the high Muslim population in West Bengal. Muslims constitute around 30% of the population and mainly in districts like Kolkata, Murshidabad, Malda, Dinajpur, etc. Muslims have been loyal to the TMC since the 2011 elections. 
  • And finally, the main reason for the TMC win was the sympathy towards Mamata Banerjee. She was considered as the only woman taking on the dominant force of BJP led by Amit Shah and Narendra Modi and also evoked Bengali Pride amongst the people. 

This historic win had one flaw in it which Mamata Banerjee might never forget. She lost in her own constituency Nandigram against a certain familiar figure; Suvendu Adhikari, the former TMC leader who had moved to the BJP. 

The Constitution and its provisions concerning the appointment of the CM

Mamata Banerjee’s loss in Nandigram did not change TMC’s triumphant victory in the Bengal elections, as Didi is set to remain West Bengal’s, Chief Minister. Although it has left some questions unanswered. The Constitution of India has stated the provisions for the appointment of the Chief Minister. Article 164 of the Constitution deals with these provisions. According to Article 164, the Governor shall appoint the CM. Although the Constitution does not specifically state the qualifications of the CM to be appointed, the Governor cannot appoint any random person as the Chief Minister. The Governor can also appoint other ministers of the State. However,  Article 164(4) states that a minister who for any period of six consecutive months has not been a member of the State Legislature will cease to be a minister after the expiration of these six months. The Supreme Court in the case SR Chaudhuri v. State of Punjab (2001) stated that the re-appointment of a non-member as a minister during the term of the same legislative assembly amounts to subversion of constitutional guarantees. 

Highlighting the instances

Article 164(4) of the Constitution has been quite controversial and has been mentioned many times in the past. In the case B.R. Kapoor v. State of Tamil Nadu (2001), the then AIADMK (All India Anna Dravida Munnetra Kazhagam) Supreme J. Jayalalitha was not a member of the legislative assembly at the time and yet, was sworn in as the Chief Minister of Tamil Nadu in 2001. Her nomination papers were rejected by the returning officers because of her conviction and sentencing in two criminal cases under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988 that disqualified her under Section 8(3) of the Representation of People Act, 1951. She had been sentenced to undergo three years of rigorous imprisonment in the first case and two years of rigorous imprisonment in the second case. She appealed against her conviction but this was pending before the Madras High Court. The Supreme Court struck down Jayalalitha’s appointment as the CM by stating that, the person suffering from disqualification as a member of the assembly, cannot be appointed as a minister or the chief minister under Article 164(4) of the Constitution. The Court concluded the judgment by stating that Article 164(4) is not a source of power or an enabling provision for the appointment of a non-legislator as a Minister even for a short duration. It is actually like a disqualification or restriction for a non-member who has been appointed as the Chief Minister or a Minister, as the case may be, to continue in office without getting himself elected within six consecutive months. 

On similar grounds, in the case SP Anand, Indore v. HD Deve Gowda (1996), the Court clarified that a non-member can very well be appointed as the Prime Minister because parliamentary democracy demands collective responsibility of the ministers towards the legislature. Thus, the accountability of the executive towards the elected representatives would conform to the ideals of representative democracy. The Supreme Court stated the views of Dr. B.R.Ambedkar who defended Article 164(4). While explaining the constitutional design of such appointments, Dr. B.R. Ambedkar stated that it is a matter of privilege which extends only for six months and does not confer a right in favour of that individual without getting elected at all. It manifests that there is a limitation on the entitlements of the individual who has been appointed as a Minister without becoming a member of the legislature. Thus, in this case, the court held that a person who is appointed as the Prime Minister is chosen by the elected representatives and can only enjoy the powers if he gains the confidence of the majority of the elected representatives in the Lok Sabha. 

Further, in the case of Har Sharan Verma v. Tribhuvan Narain Singh (1970), it was for the first time that the Court had examined Article 164 in depth. The issue before the Supreme Court was whether a person who is not a member of the state legislature can be appointed as the Chief Minister. Tribhuvan Narain Singh’s appointment as the Chief Minister of Uttar Pradesh was challenged as he was not a member of the state legislature. This case was first challenged in Allahabad High Court, where the petitioner had argued that according to Article 164(1), a person who is not a member of the state legislature cannot be appointed as the CM. The High Court struck down this contention by stating that a person can hold the office of Chief Minister and Minister for 6 months without being a member of any state legislature. 

Another issue raised in the petition was whether the majority of the Legislative Assembly members had elected their leader to be appointed as the CM before he got the legislature’s membership. The High Court rejected this contention also by stating that clause 4 of Article 164 does not prohibit such a stop-gap arrangement which means that any minister can hold office for six months even if he/she is not a member of the legislature. The Court remarked that such an arrangement is proper or not is not a case for the Court to consider, but it cannot be illegal. The Allahabad High Court thus dismissed the case and the case reached the Supreme Court before the Constitutional Bench. 

The Bench upheld the High Court Judgement and held that under Article 177 if a minister not being a part of the assembly can attend its meetings, then the minister can also be worthy of holding the post even if he/she has lost in the elections. Despite this setback before the constitution bench, Har Sharan Verma petitioned the Supreme Court twice after Tribhuvan Narain Singh to challenge similar cases but was unsuccessful. The Supreme Court dismissed the case and ruled that no material change was brought by the Amendment of Article 173(a) of the Constitution. The Bench further observed that debates in the Constituent Assembly don’t suggest that a person shall be legislature’s member when he is chosen as a Minister. Thus it can be concluded that there is no such provision in the appointment of a person who has lost the election, to be appointed as the Chief Minister of the state.

Bengal and its inference

Mamata Banerjee took over as the Chief Minister of Bengal on May 5. Regarding facing defeat in her constituency, she blamed the Election Commission for being biased and partial and has also appealed for a recounting of the votes. Now, with the elections done and dusted, Mamata Banerjee has a lot of work to do. The most important ones are the management of the COVID-19 pandemic and the post-poll violence that erupted in various parts of Bengal. Finally, West Bengal has been a state that has found itself in the middle of centre-state feuds in the last five decades. As also emphasized by the Governor at the Chief Minster’s swearing-in ceremony on May 5 that the direction this time must be towards a ‘cooperative’ (and not ‘conflictual’) brand of federalism to achieve the developmental objectives of the state and the nation in the longer horizon. This is the third consecutive victory for Trinamool in the Bengal assembly election. Since 2011, it has been leading in all elections in the state, whether assembly or parliamentary. Though Trinamool Congress’s constituency-wise leads came down in the 2019 Lok Sabha Elections, its performance in the 2016 and 2021 assembly elections was almost similar.

Conclusion

Mamata Banerjee’s reappointment as the Chief Minister of West Bengal despite losing her seat is not a new thing. As mentioned above, the Supreme Court and the Constitution have always come out on top in such cases. Nevertheless, India was a witness to one-of-a-kind elections in West Bengal and one which will be remembered for years to come.

References

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