The Supreme Court today issued notice on a plea raising the issue of election expenditure recovery from a candidate who resigns after getting elected from one political party in order to recontest from another party.

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana passed the order, calling for the response of the Union, the Election Commission of India, the Chief Electoral Officer, Tamil Nadu, certain MLAs in Tamil Nadu who resigned from their posts and sought to re-contest in bye-elections, and others.

The petitioner, a practicing advocate, challenges a Madras High Court order, which dismissed his writ petition seeking a writ of mandamus to ECI and CEO, Tamil Nadu to frame an "Election Expenditure Security" mechanism as well as a 5-year disqualification from Parliamentary/State Assembly elections for voluntarily resigning legislators (without compelling reason).

The writ petition before the High Court claimed that after the 2026 Assembly elections in Tamil Nadu, 6 elected members (AIADMK) resigned from their seats within a short span of results being declared. These members were - S Jayakumar, Maragatham Kumaravel, P Sathyabama, Dr Esakki Subbaya, C Vijaya Bhaskar, and MR VIjayabhaskar. It was claimed that the resignations were voluntary, without any compelling circumstance, and necessitated bye-elections in the respective constituencies (to be funded by the public exchequer).

The petitioner urged that the public ought not be made to pay twice for the same seat because of an individual's personal or political choice to give it up.

The "Election Expenditure Security" mechanism proposed by the petitioner called for a pre-deposit by an MLA who resigned and wished to re-contest in the bye-election occasioned by their resignation (deposit amount being equal to the amount spent on the bye-election). The High Court observed that it could not convert an executive or legislative option into a judicial command.

Aggrieved by the dismissal of his prayers, the petitioner filed the present petition, raising inter-alia the following issues,

(i) whether a security required at the stage of nomination from a candidate who caused the bye-election by his own voluntary resignation, refundable on his election and forfeitable on his defeat, is a regulatory condition of the same character as the deposit under Sections 34 and 158 of the Representation of People Act, 1951, and not a disqualification within the meaning of Article 191 of the Constitution and,

(ii) whether the public trust doctrine extends to the electoral mandate conferred by the people and to the public funds expended in securing it?

While filing the petition, the petitioner also sought certain interim reliefs. He prayed for stay of all further proceedings in the bye-elections to Madurantakam and Dharapuram Assembly constituencies, including the poll scheduled on October 6. In the alternative, he sought stay of the counting of votes and declaration of results in the said bye-elections (scheduled on October 9). It was also prayed that the results be made subject to outcome of the case.

The petitioner further sought a direction to respondent Nos. 2 (ECI) and 3 (CEO, TN) to place on record the actual/estimated expenditure incurred (or to be incurred) on the bye-elections to Tiruchirapalli East, Karur, Viralimalai, Perundurai, Ambasamudram, Madhurantakam and Dharapuram Assembly constituencies.

Appearance: Senior Advocate Shoeb Alam and AoR Merlyn Rachel J (for petitioner)