A day after the Trinamool Congress (TMC) lost the West Bengal elections to the BJP, party chairperson Mamata Banerjee on May 5 said she would not resign as Chief Minister, alleging that the verdict was the result of a “conspiracy” rather than the people’s mandate. Addressing a press conference, Ms. Banerjee claimed the elections had not been conducted fairly and accused the BJP of misusing central forces to “forcibly capture” booths and influence the outcome. She added that the party would challenge the results and continue its political fight.

Can a Governor remove a Chief Minister?

Article 164(1) of the Constitution provides that “the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.” On a literal reading of the provision, therefore, the Governor appears to possess the authority to remove a Chief Minister from office. However, members of the Constituent Assembly had cautioned that such a provision could potentially lend itself to an arbitrary exercise of gubernatorial discretion.

Constituent Assembly member Mohammad Ismail Khan had moved an amendment to the provision (then Article 144 of the Draft Constitution) proposing that the phrase “during the pleasure” be replaced with the words “so long as they enjoy the confidence of the Legislative Assembly of the State.” He contended that once the constitutional scheme envisaged the Governor as a nominee of the President, the Constitution ought to have made it explicit that the Council of Ministers would hold office not at the Governor’s pleasure, but only so long as it continued to enjoy the confidence of the Legislative Assembly.

Addressing this concern, Dr. B. R. Ambedkar, Chairman of the Drafting Committee of the Constitution, affirmed that the Council of Ministers shall hold office only so long as it enjoys the confidence of the majority. “The reason why we have not so expressly stated it,” he explained, “is because it has not been stated in that fashion or in those terms in any of the Constitutions which lay down a parliamentary system of government.”

Over the years, the Supreme Court has also interpreted the Governor’s powers as flowing primarily from the “aid and advice” of the Council of Ministers. In A.G. Perarivalan v. State Through Superintendent of Police (2022), the apex court observed that the “Governor” is “but a shorthand expression for the State government”. While recognising the Governor as “the formal head and sole repository of the executive power”, the court held that the office is ordinarily bound by the aid and advice of the State’s Council of Ministers.

When is a floor test required?

If a Governor asks a Chief Minister to step down and invites another candidate for the post, while the tenure of the Legislative Assembly is still on, there has to be a floor test — a constitutional mechanism used to determine whether the executive enjoys the confidence of the legislature. Under this process, the Chief Minister must prove majority support in the House, that is, the backing of more than half of the sitting MLAs. Failure to do so requires the Chief Minister to resign.

If no party or coalition is able to form a stable government, President’s Rule under Article 356 may be imposed as a measure of last resort.

What happens after the Assembly’s tenure ends?

Article 172 of the Constitution deals with the duration of a State Legislative Assembly and stipulates that, “unless sooner dissolved”, an 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.”

According to the Election Commission, the current West Bengal Assembly commenced its term on May 8, 2021, and is set to expire on May 7. Thereafter, the Governor will have to initiate the process for constituting a new Assembly, following which the newly elected MLAs will take oath and a new government will be formed.

What happens next?

According to former Lok Sabha Secretary-General P.D.T. Achary, a formal resignation following defeat in a State Assembly election is largely a matter of convention. “Even if Ms. Banerjee does not resign, it would make no material difference. The tenure of the present Assembly ends on May 7, and with its dissolution, she will automatically cease to hold office as Chief Minister,” he said.

He, however, pointed out that an election petition may be filed before the Calcutta High Court within forty-five days from the declaration of the results of the concerned candidate. Section 100 of the Representation of the People Act, 1951 enumerates the grounds on which the election of a candidate may be challenged and declared void, including corrupt practices by the candidate and non-compliance with statutory provisions by the returning officer, among other grounds.

He further noted that a writ petition may be maintainable where the challenge concerns the integrity of the electoral process itself, including allegations of arbitrary deletion of voters during the Special Intensive Revision (SIR) of electoral rolls in West Bengal. “Large-scale deletion of voters in an election constitutes a violation of fundamental rights and can therefore be challenged through a writ petition,” he said.