Plea Moved in Gujarat High Court Seeking Directions For Turncoat MLAs To Pay For By-Poll Costs [Read Petition]

The plea has been moved by Petitioner-Advocate Khemchand Rajaram Koshti stating that,

"The writ petition is being filed in the public interest seeking directions to the respondents to frame rules/regulations and/or issue notifications/circulars to direct such returning candidates who subsequently indulge in such malpractices by resigning for personal interests/reasons and thereafter stand for re-elections from the same /different constituency, albeit under a different political banner, to deposit the amount spent by the Election Commission of India, which is public money specifically".

Petitioner-Advocate K R Koshti has, in his plea, named 19 such MLAs, out of the 77 legislators who contested and won on the ticket of the Indian National Congress in the 2017 state assembly polls, and who later on tendered the resignations from being a Member of Gujarat Legislative Assembly citing personal reasons.

The Plea further states that most of them (out of 19 MLAs), later on, joined the ruling party in the State - Bharatiya Janata Party (BJP) and 10 of them either re-contested or are re-contesting by-polls on the same assembly seat.

"The aforesaid manoeuvre was made only with a view to escape the provisions of disqualification", submits the plea.

Grounds (as mentioned in the Plea)

· The Election Commission is required to conduct free and fair elections in the exercise of its power invested in it by virtue of Article 324 of the Constitution. Therefore, it is required to curb the aforesaid malpractice being perpetrated by the political parties as well as its returned candidates.

· The expenses for conducting an assembly constituency is roughly one crore to two crores, which comes from public exchequer.

· Though the term of each returned candidate is five years and he has won the election because of the confidence reposed in him/her by the public. Thus, the member of the legislative assembly is not expected to break the confidence of people who have reposed faith in him/her and just for achieving his personal goals or for his/her personal enrichment he/she cannot resign from the seat at his/her sweet will and then re-contest the election on the same seat as a candidate belonging to a different political party.

· Though provisions of disqualification introduced by way of Schedule X of the Constitution of India for stemming the evil of defections, the aforesaid provision does not address this manoeuvre being performed by the political parties and their members.

· Therefore, necessary directions are required to be issued to the ECI to frame the appropriate rules by providing the recovery of the expenses of elections from such candidate because of whose manoeuvre the repoll becomes inevitable.

· The public money of Rs.2 crore for each such repoll cannot be spent on such mala fide and ill-motive exercise of power to resign by the member of legislative assembly.

· Though the right to resign from the legislative assembly is an indefeasible right, but the same cannot be without accountability.

· Such a legislative member is required to be saddled with the liability of repaying the expenses incurred by the Election Commission for conducting the re-poll and public money should not be wasted for convening the re-poll.

In the facts and circumstances of the above case, the petitioner has prayed before the Court that:-

· Issue a writ of mandamus or any other appropriate writ/order/ direction directing the respondent Election Commission to frame rules incorporating therein the provision for recovery of expenses incurred by the Election Commission to conduct polls in the assembly constituencies from the concerned MLAs who resign from the party and thereafter, seek re-election on the ticket of another political party as the resignation and re-election causes the loss of taxpayers' money, which comes to the tune of Rs 2 crores per constituency;

· To issue a writ of mandamus or any other appropriate writ/order/ direction directing the respondent Election Commission to frame rules incorporating therein the provision for mandating the Members of Legislative Assembly who resign from the party and seek reelections on the ticket of another political party to deposit the amount paid by the other candidates contesting the elections from the said constituencies;

· Direct the Election Commission to direct each and every candidate who is contesting the assembly by-polls to file an undertaking to the effect that in case they win the election, they will not resign from the said constituency till their term is over.

The petitioner has also sought directions for the ECI to place information before the court about the expenditure incurred on assembly polls per constituency.