It is expected that in all likelihoods Mamata Banerjee will again be elected the leader of the TMC Vidhayak Dal to become the Chief Minister of West Bengal for the third time in a row because itis she who has steered cleared the party to a thumping win, although she herself has been defeated by her rival Suvendu Adhikari of the BJP from the Nandigram assembly constituency. If she is elected as the leader of the Vidhayak Dal, she herself would not be the Vidhayak. Now the question is whether it is morally and constitutionally right for her to be sworn as the Chief Minister. Opinions may differ on this issue, but the undeniable fact is that her swearing-in will be wrong on both counts. Firstly, let us consider it from the angle of morality. If she had not contested the election, it would have been an entirely different matter to elect her as the leader. But here is the unique case of a sitting Chief Minister, who has lost her election. It has never happened in history when any Chief Minister, rejected by the people of the constituency in the hustings, had been chosen to be the leader of the Legislative assembly. So, her election as the leader of the Vidhayak Dal would set a very bad precedent in parliamentary history as it would amount to throwing morality to the wind. In fact, there are two Articles in the constitution, one is Article 75(5) and the other is Article 164(4), which speak about the Council of ministers at the State and the Union level. But both articles speak about the appointment of ministers and not of the Chief Minister or the Prime Minister. Article 164 (4) says that ‘ 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’. Thus, the
constitution speaks of the Minister and not of the Chief Minister. Similarly, Article 75(5) speaks of a Minister at the centre and not the Prime Minister. It would be sheer injustice to say that the Prime Minister or the Chief Minister is ‘primus inter pares’ i.e. first among equals. A Prime Minister or a Chief Minister is not first among equals because he/she has no equals. When a Chief Minister or a Prime Minister resigns or vacates his/ her office, the entire council of minister ceases to exist, which is not the case with a minister. Ministers may come and go but the council of minister will remain undisturbed till the Chief Minister or the Prime Minister holds office. The President or the Governor may be the official head of the State but the Prime Minister or the Chief Minister is the actual head of the state. Although the Supreme Court has in ‘S P Anandvs HD Devegowda’ ( 1996 SCC(6) and HS Verma vs TN Singh (1971 SCC(1) has held that a person can be appointed as the Prime Minister or the chief minister even without being a member of the Legislature yet many jurists have held, and rightly so, that the views of the Supreme Court were inconsistent with the letter and spirit of the constitution. There is only one instance of Devegowda in history, who was appointed the Prime Minister without being a member of any house of the parliament but that was in the pre-Parliament time, so the case of his council of ministers was altogether different from Deve Gowda. As far as the appointment of Chief Ministers concerned, there are many examples, cutting across the party lines, where they have appointed without being the member of the Legislatures. However, if Mamata becomes the Chief Minister again, it will be the first of its type in history. Even Tribhuwan Narain Singh had resigned as the Chief Minister of Uttar Pradesh after he was defeated by Ram Krishna Dwivedi of the Congress from the Maniram constituency. Hopefully, Mamata Banerjee will be cautious of the constitutional and ethical propriety and will have any protégé as the Chief Minister for the time being till she is not elected as the MLA from any other constituency of West Bengal. After all, morality cannot be thrown overboard to set a bad example for the coming generations.