Mamata Banerjee lost in Nandigram but she will still take oath as CM tomorrow. Here’s how

Under Article 164(4) of the Constitution, an unelected member can assume office as CM but he or she has to either win a bypoll or get elected to the Legislative Council within six months to retain the position.

TMC supremo and West Bengal CM Mamata Banerjee during an interaction with the media in Kolkata, on 2 May 2021 | PTI

APOORVA MANDHANI, THE PRINT,  4 May, 2021 :  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”.