NEW DELHI: In a development that could impact politics of shifting loyalties, SC Monday agreed to examine whether an MLA or an MP who contests a by-election caused by their voluntary resignation should be made to bear the entire expenses incurred by Election Commission in conducting the previous poll.Senior advocate Shoeb Alam told a bench of CJI Surya Kant and Justices Joymalya Bagchi and V Mohana that six persons elected on AIADMK tickets to the Tamil Nadu assembly had resigned in May and June after declaration of results and defected to TVK. Two of them resigned, causing by-elections which they went on to win, this time as TVK candidates.Appearing for petitioner K Suthan, Alam said the court was required to examine whether a person who voluntarily resigned as an MLA or MP should be barred for five years from contesting a state or parliamentary election. SC issued notices to Centre, EC and the six AIADMK MLAs who resigned and defected.The trend of lawmakers crossing over to the party in office and quitting their seats to avoid disqualification has caught on. The petitioner has sought legislative or regulatory measures “to create a mechanism for ensuring financial accountability of elected representatives who prematurely resign from their seats without legally recognised compelling circumstances, including introduction of an ‘Election Expenditure Security’ to recover cost of resultant bye-elections”.He has requested the court to direct Centre and EC to examine and initiate “necessary legislative and/or regulatory measures to introduce a statutory disqualification or a reasonable cooling-off period to prevent elected representatives who voluntarily and prematurely resign from contesting subsequent polls”. Suthan has suggested a five-year cooling-off period.The petitioner contended that none of the vacancies in the six seats was caused by death, permanent disability, disqualification or other compelling circumstance warranting a bypoll. “Public shouldn’t be made to pay twice for polls to the same constituency because of an individual’s personal or political choice to resign,” he said.Refusing to entertain Suthan’s petition, a Madras HC bench led by CJ S A Dharmadhikari had said, “We are being asked to design a punitive and financial regime that would operate as a fresh disqualification under Constitution and would curtail statutory right to contest election.
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In our opinion, the same is a matter of legislative policy, not of judicial direction.”“Right to resign a legislative seat is itself a facet of the constitutional scheme governing membership of a House and cannot be burdened with extra-statutory conditions by judicial order, however sound the underlying concern may be,” the HC had said while refusing the plea to impose a five-year cooling-off period on MPs and MLAs who voluntarily resign from their seats in the House concerned.
