Madras High Court declines plea to bar resigning MLAs from re-contesting or make them pay bye-election costs

The petitioner, a practising advocate, filed a public interest writ petition under Article 226 seeking directions to the Election Commission of India and the Chief Electoral Officer, Tamil Nadu, to create an “Election Expenditure Security” mechanism requiring legislators who voluntarily resign and thereafter contest the resultant bye-election to deposit an amount equivalent to the public expenditure incurred on that bye-election.

He also sought a five-year disqualification from contesting elections for legislators who voluntarily resigned without a compelling circumstance.

The petition was prompted by the resignations of six Tamil Nadu MLAs shortly after the 2026 Assembly elections.

After representations dated 7 and 8 September 2026 received no response, the petitioner approached the Court.

Whether the High Court, exercising writ jurisdiction, could direct the Election Commission or the Legislature to create a new financial-security mechanism requiring voluntarily resigning legislators to bear the cost of resultant bye-elections?

Whether the High Court could direct the introduction of a five-year disqualification or cooling-off period preventing such legislators from contesting subsequent elections?

Whether the decisions in Union of India v. Association for Democratic Reforms and Association for Democratic Reforms v. Union of India authorised the grant of the reliefs sought?

Article 226 does not empower a constitutional court to compel the Legislature or Government to enact a particular law or introduce a Bill in a specified form; courts may interpret existing law and, in limited cases, fill an interstitial legislative vacuum until legislative action, but cannot create an enduring statutory scheme or new substantive disqualification.

Under Union of India v. K. Pushpavanam and Ashwini Kumar Upadhyay v. Union of India, legislative policy and the creation of binding norms belong primarily to the Legislature.

Article 324 gives the Election Commission broad powers of superintendence, direction and control over the conduct of elections, but does not confer an independent power to create new candidate disqualifications or financial liabilities contrary to the constitutional and statutory scheme.

Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294, permitted disclosure directions to protect the voter’s existing right to information where the law was silent and the Election Commission possessed implementing authority.

Association for Democratic Reforms v. Union of India, (2024) 5 SCC 1, concerned transparency in political funding and did not authorise creation of a new electoral disqualification or security deposit.

The Court also relied on K. Mani v. Chief Election Commissioner and M. Baskaran v. Election Commissioner of India, which held that recovery of bye-election or election-related expenditure from candidates requires legislative authority and cannot be imposed through judicial directions.

The Court held that the petitioner was not seeking enforcement of an existing statutory right or the filling of a limited procedural gap, but the creation of two new substantive features of electoral law: a security deposit calculated by reference to public expenditure on a bye-election and a five-year prohibition on contesting elections.

Neither measure existed in the Constitution or the Representation of the People Act, 1951.

The proposed five-year bar would operate as a new disqualification, while the proposed security would impose a new financial liability.

Article 324 could not be used to confer such powers on the Election Commission because the Commission itself lacked authority to alter the statutory qualifications and disqualifications governing electoral candidature.

The Court distinguished the 2002 Association for Democratic Reforms decision because it concerned disclosure of existing facts to protect informed voting, not the imposition of a new restriction on the right to contest.

It similarly distinguished the 2024 Electoral Bonds judgment, which addressed transparency in political-party funding rather than the consequences of an individual legislator’s resignation.

The Court further observed that granting relief specifically against the six named legislators would risk unequal and extra-statutory treatment under Article 14.

It held that the High Court could not, through a writ of mandamus, direct the Election Commission or the Legislature to create an “Election Expenditure Security” mechanism or impose a five-year disqualification on legislators who voluntarily resign and seek to contest again.

The writ petition was dismissed, the connected miscellaneous petitions were closed, and there was no order as to costs.