By-Poll Expenses Can't Be Recovered From Candidate Who Resigns: ECI, State Govt To Calcutta HC

The Calcutta High Court was apprised by both the Election Commission of India (ECI) and the State government on Tuesday that expenditure incurred by the State exchequer in conducting an election cannot be recovered from a candidate even if he resigns from his constituency before completion of his term in order to enable another person to contest the election from that constituency. 

The Court was adjudicating upon a suo-moto issue framed by a Bench comprising former  Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj in a Public Interest Litigation (PIL) petition challenging the decision of the Election Commission of India to prioritize the bye-elections of Bhabanipur Assembly Constituency from where the Chief Minister of West Bengal Mamata Banerjee had contested elections on September 30, 2021, and had subsequently won.

The Court vide order dated September 28, 2021 had dismissed such a challenge but had kept in abeyance the second issue as to whether the public should bear costs of the by-elections, which was necessitated following the resignation of TMC MLA Sovandeb Chattopadhyay to facilitate Chief Minister Mamata Banerjee's election to the Assembly after she lost while contesting elections from Nandigram during the 2021 Assembly Elections.

The Court vide order dated September 24, 2021 had farmed the following issue for consideration, 

"It is a matter of common knowledge that it costs crores of rupees to the public exchequer to hold elections. It should not be taken merely at the whims and fancies of the persons who are in power or otherwise elected or losing candidates. In case an elected candidate resigns from his constituency before completion of term without there being any legal disability, to enable another person to contest the election from that constituency as to who should bear the cost to be recurred by the State exchequer is a larger issue which is required to be considered."

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was informed by advocate Siddhant Kumar appearing for the ECI that the issue in consideration had been squarely settled by the Madras High Court in the case of K.K Ramesh v. NHRC and Ors. 

The ECI further submitted before the Bench that the Commission does not have the power to issue such a direction for recovery of money spent on conducting an election even if the concerned candidate resigns from his constituency in a very short span of time. It is up to the legislature and the judiciary to frame such a provision for recovery of the expenditure incurred if at all, the ECI submitted further. 

Advocate General S.N Mookerjee appearing for the State government submitted before the Court that even for by-polls, expenses incurred cannot be recovered from a candidate and that the State has to bear all such expenditure. Reliance was placed on the Supreme Court judgment in Pramod Laxman Gudadhe v. Election Commission Of India in this regard wherein it had been held, 

"Such an interpretation is in accord with the sanctified principle of democracy and the intention of the Parliament is not to keep a constituency remaining unrepresented. The concern expressed with regard to load on the exchequer cannot be treated as a ground. It is so because the representative democracy has to sustain itself by the elected representatives."

The Advocate General further submitted that pursuant to Article 190(3)(b) of the Constitution, any member of the State Legislature can resign his seat by addressing the Speaker or the Chairman. In this case, the concerned candidate's resignation had been accepted by the Speaker, the Court was further informed. 

Reliance was further placed on Section 151A of the Representation of the People Act, 1951 which stipulates that a bye-election for filling any vacancy shall be held within a period of six months from the date of the occurrence of the vacancy. The Advocate General further remarked, "The principle which emerges is that no constituency should go unrepresented for a long period of time". 

It was further argued by the Advocate General that elections cannot be stalled merely because the State exchequer incurs costs. 

The Court is slated to hear further arguments from the petitioner on the next date of hearing. 

Background 

The Public Interest Litigation (PIL) petition had been moved by Sayan Banerjee, through Advocate Ankur Sharma questioning the request made by the Chief Secretary of the Government of West Bengal, to the Election Commission to hold the bye-elections in 159-Bhabanipur Assembly Constituency, 'in view of administrative exigencies and public interest and to avoid a vacuum in the State'. It had contended that the priority to hold the bye-elections amidst Covid-19 pandemic is based on unreasonable, mala fide and undue influence caused by an unelected Chief Minister to interfere with the free and fair democratic process of elections.

Referring to the letter of the Chief Secretary of the Government of West Bengal, the Election Commission, while issuing bye-poll notification had issued a statement which is as follows,

"While the Commission has decided not to hold by-elections in other 31 Assembly constituencies across the country, considering the constitutional exigency and special request from the state of West Bengal, it has decided to hold the by-election in Bhowanipore."

Case Title: Sayan Banerjee v. Election Commission of India and Ors