K ChandruElection Commission of India (ECI) recently made a submission before Madras high court, which was hearing a public interest litigation seeking to prevent byelections necessitated by the resignation of AIADMK MLAs. The petitioner apparently pleaded before court that if byelections were conducted before the dispute over the resignations of the six MLAs was decided, the petition would become infructuous. Without justification, the ECI submitted that it would not conduct the byelections until the writ petition was disposed of.It is difficult to understand how the resignation of certain MLAs, which was verified and accepted by the speaker of the legislative assembly, can be linked to the byelections that must be held following the notification of those vacancies.After the recent TN assembly election, with the Joseph Vijay-led govt falling short of an absolute majority, certain MLAs belonging to AIADMK, which finished third, resigned from the seats they had won and joined the TVK. Once their resignations were received under Article 190(3)(b) of the Constitution, the speaker was required to scrutinise them. This requirement was introduced through the 33rd Amendment to the Constitution, which inserted the proviso that the speaker can reject a legislator’s resignation if, after an inquiry, it is found to be not voluntary or genuine.The MLAs personally handed their written resignations to the speaker, who scrutinised and accepted them after being satisfied that they were voluntary and genuine. The assembly secretariat subsequently notified that the constituencies from which the MLAs had been elected had fallen vacant, and the vacancies were duly gazetted. Supreme Court clearly laid down the law, which is that it has to be accepted that a member of the legislature has a right to resign. Nothing in the Constitution, or any statute, prevents them from resigning; and that members may choose to resign for a variety of reasons, good or bad, but it is their sole prerogative to resign. Elected members, said the 2020 SC ruling, cannot be compelled to continue office if they choose to resign and that the “33rd Constitutional Amendment does not change this position”.The Speaker’s acceptance of the resignations has not been challenged. The motive of the MLAs in resigning, joining another political party and possibly contesting the same constituencies in byelections under their new party’s label cannot form the basis of such litigation. Schedule X of the Constitution, which deals with the disqualification of legislators for defection and empowers the speaker to decide such matters, does not apply to the present case.The PIL merely states that petitions may be filed against the election of these MLAs. Under Section 84 of the Representation of the People Act, a defeated candidate may seek a declaration that they were duly elected. The petitioner says that such a plea would become infructuous if the ECI notified byelections. Normally, the ECI announces a byelection soon after a constituency is declared vacant, unless less than six months remain before the general election. Even after several assembly elections were held in other states and when there were vacancies creased immediately the ECI conducted byelections and declared results also.In TN, such actions were not taken and the ECI voluntarily informed the court it would refrain from holding byelections. It must be understood that election petitions need not be filed only by the defeated candidate, even a voter of the constituency can do so.In Sivaganga constituency, a former minister who lost by one vote in the 2026 assembly election, approached Madras HC, seeking to restrain the winning candidate from functioning as an MLA and receiving the perks attached to the office. HC granted the relief. However, when the matter reached Supreme Court, it took exception to Madras high court intervening without directing the aggrieved party to pursue an election petition.During the hearing before Madras HC on the resignation issue, an AIADMK candidate who had been elected from Tirunelveli constituency, resigned and joined the TVK sought to withdraw his resignation. After it became clear that the anticipated byelections were unlikely to be held soon, he petitioned the speaker, saying he wanted to withdraw his resignation because of the uncertainty created by ECI. His application was dismissed by the court, and the speaker has said an order will be passed after the budget session.For any constitutional post, a resignation is unilateral and takes effect from the date specified in it. In the case of elected MLAs and MPs, however, the speaker must follow a special procedure to verify that the resignation is genuine and voluntary. This safeguard is intended to prevent party leaders from obtaining resignations in advance and using them to silence elected representatives.In the case of an Allahabad high court judge, a post-dated resignation was accepted before the date specified in it. The judge challenged the decision in Supreme Court and obtained a favourable order (1978, Union of India vs Gopal Chandra Misra).The question remains, how can the ECI postpone the byelections necessitated by the resignation of elected members? Would this not amount to denying the democratic rights of voters in those constituencies? Will the ECI answer?Otherwise the drama enacted by that member is only a comedy piece especially when his resignation was verified, accepted and vacancy notified in the gazette.(The writer is a retired Madras high court judge)
