MAMATHA ,OFFICE OF CM AND THE CONSTITUTION:

By S.Sanalkumar, one of the leading lawyers practicing in high court of kerala.

Article 164(4) of the Constitution says:’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’.

Article 164(1) says that Chief Minister shall be appointed by the Governor.Constitutional convention mandates that leader of the party which got majority shall be appointed as CM by the Governor.The legislature party(legislators of the party) elects their leader.Is it democratically and constitutionally ethical to elect a person as leader of legislature party who did not contest in the general elections and won the election ?It is more unethical to elect a person who is defeated in the general elections as leader of the legislature party formed following the same general elections.

Article 164 employs the terms ‘Chief Minister’ and ‘Ministers’ with marked difference in the mode of appointment and eligibility to hold the respective posts.It is with the ‘politically convenient interpretation process’ of Article 164(4) , non- members often become Chief Ministers and Ministers with the built-in caveat to get elected to Legislative Assembly within six months.But if one reads Article 164(4) closely, this leapfrogging is constitutionally permissible only for a person to hold the office of Minister alone and not Chief Minister.Article 164, when read in fascicles,the impression one gets is that office of CM and Ministers are dealt with by framers in clear differentiation.For a person to be elected as CM, democratic values require that he must be one elected in the general elections.. a dispassionate interpretation of Article 164 in its cumulative setting suggests so.Though this issue was considered in AIR1971 SC1331,without having detailed discussion the Apex Court held that Article 164(4)includes CM also.

Then what about a person, who is an incumbent CM in the outgoing Assembly, getting defeated in the general election to form the next Assembly? Can the defeated CM become next CM, even if he/she is chosen by the new Legislature Party of the winning Political Party? Think about a non-member becoming a Minister and failing to get into Assembly within six months..He resigns..Again swear in as Minister and is seeking election within six months..It would turn out to be a dangerous play with Constitution for unethical gains.

There are instances where Chief Ministerial candidates losing election but still getting elected as leader of Legislature Party and thus becoming Chief Minister.In 1952 general elections to Bombay Assembly,Morarji Desai was Chief Ministerial candidate of Congress.He was defeated in elections but still managed to become CM.But in 2017, in Himachal Pradesh,when BJP’s CM candidate PremKumar Dhumal lost general elections,Jairam Thakur was chosen instead settling healthy precedent.So also, in 1996 when V.S.Achuthanandan, widely touted as CPM’s Chief Ministerial candidate lost election, E.K.Nayanar who then was a non-member was elected as leader of legislature partygoers CPM.

But Mamatha Banerjee‘s case is a unique one.Mamatha Banerjee, the Chief Minister in office, who sought her re-election as legislator of the next Assembly is defeated now.She has no moral and Constitutional right to be elected as the leader of the Legislature Party of Thrinamool Congress going to be formed consequent to the general election and thus to become the Chief Minister.There is a great difference in a non-member becoming Minister and a defeated person in the general election chosen as the leader of Legislature Party formed upon the same general election.A national debate is needed on this subject...Or else, there would be further erosion in democratic values and constitutional ethos for parochial political ends.