Mamata won't resign after Bengal defeat - what the law allows next

A day after a decisive electoral defeat, West Bengal Chief Minister Mamata Banerjee has refused to step down, rejecting the verdict and raising a constitutional question over whether a CM can continue in office after losing the mandate.

What Mamata Banerjee has said

"I will not resign, I did not lose, I will not go to Raj Bhavan. The question doesn't arise. Now, I also want to say that we didn't lose the election. It is their attempt to defeat us. Officially, through the Election Commission, they can defeat us, but morally, we won the election," Banerjee said on Tuesday.

The BJP won 206 seats in the 294-member Assembly, while the TMC was reduced to 81.

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What the Constitution provides

Supreme Court advocate Mahesh Jethmalani said a chief minister who refuses to accept the mandate can be removed by the Governor. "This is beyond belief for a chief minister to do this. This is unparalleled. She refuses to recognise the mandate of the people," Jethmalani said in a conversation with India Today TV. He also called the situation "unprecedented in any parliamentary democracy."

The senior advocate said the chief minister holds office at the pleasure of the Governor and cannot continue after losing the confidence of the electorate. "This is a mandate which is so unanimous and a huge mandate that it is impossible for anybody to question it," he said. 

Referring to constitutional provisions, he said the term of the legislature ends with the expiry of five years, and with it the tenure of the chief minister. "There is no legitimate legislature. Forget the chief minister...she's only an acting chief minister. She's no longer the elected chief minister. She has to go anyway. She can't cling to that seat."

When asked whether there can be a constitutional crisis, the noted advocate said, "No constitutional crisis because the constitution prescribes what happens in a situation like this. When you have a recalcitrant chief minister who sticks to her chair, she has to be unceremoniously dismissed."

Banerjee has alleged irregularities in elections, blaming the EC. 

However, Jethmalani said legal remedies remain open to challenge the election outcome, but not through refusal to resign. "Go to court, file an election petition. You have your remedies. Your office of the chief minister is gone...If you don't respect that part of the constitution, then you deserve to be kicked out by the governor," he said. 

The current term of the West Bengal Legislative Assembly is scheduled to end on May 7.

'Even if she doesn't resign, it doesn't matter'

PDT Achary, constitutional law expert and former Secretary-General of Lok Sabha, said that currently, there is nothing that allows her to stay in the chair. "Even if she doesn't resign, it doesn't matter. The governor would have asked her to continue till the next Chief Minister took the oath. But a constitutional provision says a government cannot continue after five years," he told India Today.

Achary said that even if Banerjee resigned today, the governor would ask her to continue till the new Chief Minister took oath. "Technically, she doesn't need to resign at all. She can only stay the CM till May 6 by operation of the Constitution of India. On that date, she ceases to be CM," Achary explained.