The Madras High Court has restrained the Election Commission of India (ECI) from issuing notifications for by-elections to five Assembly constituencies in Tamil Nadu until July 31, observing that pending election petitions challenging the validity of the returned candidates’ elections raise substantial constitutional and statutory issues that require adjudication before fresh polls are held.
The Division Bench of Chief Justice Sushrut Arvind Dharmadhikari and Justice G Arul Murugan passed the interim order on Friday on a public interest litigation (PIL) filed by Tirunelveli-based Advocate K Venkatachalapathy.
The Assembly constituencies of Tiruchi East, Perundurai, Ambasamudram, Viralimalai and Karur fell vacant following the resignation of the elected members. Tamil Nadu Chief Minister C Joseph Vijay resigned from the Tiruchi East constituency after retaining the Perambur seat, while former AIADMK legislators S Jayakumar, Esakki Subbaiah, C Vijayabaskar and MR Vijayabaskar also resigned from the Assembly after joining the ruling Tamilaga Vettri Kazhagam (TVK).
The petitioner contended that the vacancies could not be treated as “clear vacancies” under Section 151A of the Representation of the People Act, 1951, because election petitions challenging the election of the returned candidates are already pending before the High Court. It was argued that those petitions seek not only to set aside the election of the returned candidates but also consequential declarations recognising the election petitioners as the duly elected representatives of the respective constituencies.
Relying on judicial precedents, including Sanjeevayya vs Election Commission of India (1967), Election Commission of India vs Telangana Rashtra Samithi (2011) and Pramod Laxman Gudadhe vs Election Commission of India (2018), the petitioner submitted that conducting bypolls before the disposal of pending election petitions would be contrary to the legal position settled by the Supreme Court.
The Bench observed that if a court subsequently declares another candidate as the validly elected Member of the Legislative Assembly after a by-election has already been conducted, it could result in two individuals simultaneously claiming the right to represent the same constituency. Such a situation would create constitutional complications, undermine the purity of the electoral process, and impose an avoidable burden on the public exchequer, it added.
Accordingly, the Court restrained the ECI from issuing any notification for bye-elections to the five constituencies until the next date of hearing.
Appearing for the state, Advocate General Vijay Narayan argued that a distinction must be drawn between cases where an MLA resigns before an election petition is instituted and those where the resignation is tendered after the filing of an election petition.
He submitted that once a resignation is accepted, the seat becomes vacant, and if no election petition was pending on the date of resignation, a subsequently instituted petition should not automatically prevent the Election Commission from discharging its statutory obligation to conduct a bypoll. He further argued that electors should not remain unrepresented for an extended period.
Senior counsel G Masilamani, appearing for Chief Minister C Joseph Vijay, questioned the maintainability of the PIL and the petitioner’s locus standi. He contended that the PIL was premature because the Election Commission had not yet taken a final decision or issued any notification for conducting bye-elections.
The counsel appearing for ECI submitted that the Commission had not yet received notices in several of the election petitions and was unaware of the specific reliefs sought therein. It was also pointed out that questions relating to the maintainability of certain election petitions and the removal of procedural defects were still pending before the High Court Registry.
Rejecting the preliminary objection on locus standi, the Division Bench held that disputes concerning the integrity and fairness of the democratic process cannot be dismissed on a narrow or technical interpretation of standing. The Court observed that issues affecting electoral purity warrant judicial scrutiny even in proceedings initiated through a public interest litigation.
Finding that the legal questions relating to the effect of pending election petitions on vacancies arising from resignations require detailed consideration, the Bench directed all respondents to file their counter-affidavits by July 31. The matter has been posted for further hearing on that date, and the interim restraint on the Election Commission from notifying bye-elections will remain in force until then.
