General elections to the West Bengal legislative assembly were held in eight phases from March 27 to April 29, 2021. During this entire period, COVID-19 cases in West Bengal were on a steep rise and, at the peak of elections from mid-April, daily figures had skyrocketed. However, not only were elections still held as per schedule, the entire Bharatiya Janata Party (BJP) top brass landed in the state to address rallies in brazen defiance of globally recognised pandemic protocol.On May 2, results were announced and the All India Trinamool Congress, having secured a clear majority, was invited to form the government. Its leader in the legislative assembly, Mamata Banerjee, was sworn in as chief minister. On the date of her swearing-in, Mamata was not a member of either House of the state legislature. She had lost her Nandigram seat to BJP’s Suvendhu Adhikari.Article 164(4) of the Constitution of India provides that a minister [or chief minister] who, for any period of six consecutive months, is not a member of the state legislature shall, upon the expiry of that period, cease to be a minister [or chief minister]. This six-month period in the case of Mamata expires on November 4.In other words, the chief minister has till November 4 to get herself elected as a member of the West Bengal legislative assembly [the state does not have an upper house], lest she ceases to remain chief minister by operation of law.On August 1, 1996, the Representation of the People Act, 1951 was amended to provide for a “time limit for filling casual vacancies” in the legislature by holding by-election. Section 151A says that a by-election for filling any casual vacancy “shall be held within a period of six months from the date of the occurrence of the vacancy”. The section, thus, casts an obligation on the Election Commission of India (ECI) to hold by-election within six months.Also read: With Pegasus Controversy, Mamata Banerjee Continues Efforts To Take Her Anti-BJP Stance NationalThere are only two exceptional circumstances in which the ECI is permitted to depart from this obligation – first, if the remainder of the term of a member in relation to a casual vacancy is less than one year; and second, if the ECI, in consultation with Central government, certifies that “it is difficult to hold the by-election” within six months.With the Supreme Court having authoritatively pronounced that the conduct of elections is within the exclusive domain of the ECI, why the Commission needs to consult the Central government is a question that calls for judicial intervention. Be that as it may, Mamata today has two legal provisions staring at her – a constitutional provision saying that unless she gets elected to the legislature within six months from her swearing-in, she ceases to remain in office; and a statutory provision directing that, in case of a casual vacancy in the legislature, by-election must be held within six months.In the past, when persons who are not members of the legislature have been appointed as ministers, the ECI has always afforded them an opportunity to get themselves elected within six months by holding a by-election for casual vacancies. In fact, as a matter of consistent policy, the ECI has, in all such cases, held by-elections even if it was not obliged to do so on account of the remainder of the term of casual vacancy being less than one year.Amongst others, such opportunity was granted to former Prime Ministers P.V. Narasimha Rao (1991) and H.D. Deve Gowda (1996) and chief ministers Bansi Lal (1987), Vijay Bhaskar Reddy (1993), Rabri Devi (1997) and Ashok Gehlot (1999).In the case of Bansi Lal, even the Supreme Court refused to interfere in the decision of the ECI to accord such an opportunity to Bansi Lal, who had been appointed chief minister of Haryana without being a member of the Haryana state legislature. [Raj Kumar Sangwan Vs. Chief Election Commissioner & Others (1986)]. The ECI has, thus, consistently recognised that persons who are not members of the legislature at the time of their appointment as minister, have the right to contest elections and must be given the opportunity to get themselves elected within six months, even if there is no obligation on part of the Commission to hold by-elections.In the case of West Bengal, there are seven casual vacancies as on date. Prior to the declaration of election results, due to death of two contesting candidates, polls to two constituencies in Murshidabad were deferred. In the meanwhile, five more casual vacancies occurred in the assembly either on account of death or of resignation of returned candidates in Dinhata [Coochbehar], Santipur [Nadia], Bhabanipur [Kolkata South], Khardaha [North 24 Parganas] and Gosaba [South 24 Parganas].The remainder of the term for each of these casual vacancies is five years and, thus, there is a binding obligation on the ECI to hold by-elections within six months of the occurrence of these vacancies – a period which expires [in different constituencies] between October 15 and December 20.Also read: Mamata Banerjee’s Calls for a United Opposition Against the BJP Brings Her to the National StageThe number of COVID-19 cases in West Bengal has now come down sharply and the positivity rate has plummeted. Daily cases are about 17 times lower now in the state as a whole than what they were when the general elections were held. Likewise, the aforesaid constituencies in which by-elections have to be held, have also witnessed a sharp drop in the number of cases.Overall, the COVID-19 situation in the entire state [and especially in these constituencies] is far better than what it was in March-April, when the general elections were conducted across the entire state and a further decline in the number of cases is expected. For instance, in Khardaha, North 24 Parganas cases have come down from 1436 [in April] to 28 [in July] and in Samserganj, Murshidabad from 437 [in April] to 6 [in July]. Despite the situation being far more conducive than what it was and there being no other reason for not holding by-elections, the ECI has not announced by-elections to fill any of these casual vacancies till date. It has also not certified that holding of by-elections is difficult. Planning and conduct of by-elections is a time-consuming process and, if by-elections are not announced soon, it will not be possible to hold them within the statutorily mandated time-period.Settled electoral practice, as consistently recognised by the ECI itself and sanctified by the Supreme Court, mandates that even if one casual vacancy exists [in the present case, there exist seven], Mamata has the right to contest elections and must be given the opportunity to get herself elected as a member of the assembly within six months of her being sworn in as chief minister. Not holding of by-elections now, not only deprives Mamata of her said right, but also blatantly denies the people of seven constituencies, their right to be represented in their legislature. Is the silence of the ECI deliberately designed to unseat Mamata as chief minister by operation of law on the expiry of six months of her term?Free and fair elections are part of the basic structure of the Constitution of India. This negation of the rights of the people of seven constituencies to be represented in the assembly militates against the idea of free and fair elections and, consequently, interferes with the basic structure. If the ECI fails to announce elections within the next few days, Mamata will be well-advised to seek judicial intervention to assail this stratagem devised to dislodge her as chief minister by unabashed abuse of law.Saif Mahmood is PhD (law) and advocate, Supreme Court of India.
